Lawful sexual activity case studies
Advertising sex services
The complainant was a sex worker who advertised her services in newspapers published by the respondent, APN News & Media. She claimed direct discrimination because the charges for advertising in the
section of the classifieds were higher than advertisements for other services, such as Trade services. The Personal category included headings such as Adult and Escort Services, Social Escort Services, Adult Products, Licensed Brothels, etc.
The tribunal found there were various categories of advertisements in the classifieds, and there were valid business reasons for the higher charges in the Personal category. Applying Dovedeen v GK , the proper comparator was a person advertising in the Personal category who was not a sex-worker. A person who could place an advertisement in the Trades section of the classifieds is not a person whose circumstances are the same or not materially different to those of the complainant. Advertisements in the Personal section under any of the various headings were charged at the same rate, and therefore there was no direct discrimination.
The complainant also alleged indirect discrimination in that her advertisements were placed under the heading
Adult and Escort Services
in the Personal section of the classifieds, and on the internet. She argued that this requirement was in breach of the
Prostitution Act 1999
and the Prostitution Licensing Authority Guidelines about the Approved Form for Advertisements for Prostitution. The tribunal considered the guidelines and the legislation and found there was no prohibition on internet advertising (provided it was in the approved form), and no issue with the complainant's
advertising being placed under the heading
. The tribunal was satisfied that APN did not impose a term with which a lawful sex worker was not able to comply.
The tribunal said it was mindful of what was said by Callinan J in the High Court case of New South Wales v Amery , namely:
The tribunal and the courts are not bound by the complainant's formulation of a condition or requirement. It is their duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permit directly, the imposition of a requirement or a condition which
is discriminatory, and not reasonable within the meaning of the Act.
The complainant also alleged victimisation in that APN failed to publish her advertisements, or changed deadlines so that they were not published. She claimed that errors were made dozens of times, and repeatedly. The tribunal said that for victimisation, the APN employees must have known of the claims of discrimination, and because of that, acted to the detriment of the complainant. Knowledge of general complaints about the service she received from APN or her negative view of APN's services was not sufficient to establish victimisation under section 130 of the Act. The tribunal was not satisfied that the employees with whom the complainant dealt had knowledge of her claims of discrimination.
Payne v APN News & Media  QCAT 514 (24 December 2015)
Sex work and accommodation
A self-employed sex worker complained that she had been discriminated against on the basis of the attribute of
lawful sexual activity
in being denied accommodation at a motel in Moranbah. She had been performing sex work at the motel until the motel's manager told her she would have to stay elsewhere and charged her extra for cleaning the room.
The Court of Appeal said the Anti-Discrimination Act 1991 prohibits discrimination on the basis that a person is a lawfully employed sex worker, however it does not prohibit discrimination on the basis the person intends to perform work as a sex worker at a motel.
Before the decision was released the Anti-Discrimination Act was amended to specifically provide that it is not unlawful for an accommodation provider to discriminate if they reasonably believe the accommodation is intended to be used for sex work. They can refuse to provide the accommodation or they can charge more for the accommodation to be used for sex work.
The decision is still useful because it makes it clear that there is a difference between the status of being a lawful sex worker and performing sex work. For the other areas under the Act (for example: education, providing goods and services) it is unlawful to discriminate simply because someone is a sex worker.
Dovedeen v GK  QCA 116 (17 May 2013).