Will Victoria be next to decriminalise sex work?
By: Zahra Stardust
Tags: Sex Work, Law Reform, Decriminalisation, Government, Policy

A snapshot of sex work law reform

By Zahra Stardust and Hilary Caldwell

Sex workers and supporters protest at the Melbourne Writers Festival in 2016. Photo: Vixen Collective

Following a 6-month inquiry in 2020, the Victorian Labor government now has an unprecedented opportunity to learn from other jurisdictions that have successfully decriminalised aspects of sex work.

Fiona Patten, a former sex worker and now an elected Member of the Victorian Legislative Council in Melbourne, Australia, chaired the review and is confident that Victoria could soon lead the world in best practice sex work legislation.

After years of campaigning and community consultation by Victoria’s peer sex worker organisation, Vixen Collective, decriminalisation of sex work has been platformed by the Labor Party since 2018.

Vixen and Scarlet Alliance, Australian Sex Workers Association, carried out extensive community consultation with Victorian sex workers as part of the review. Dylan O’Hara, a spokesperson from the Vixen Collective, states “Now that the review’s recommendations have been presented to the government, we are waiting to see the government make good on its commitment to Victorian sex workers to achieve full decriminalisation — it’s well past time.”

As sex workers await the draft Bill, this push for full decriminalisation is accelerating across Australia.

The Northern Territory passed the full decriminalisation of sex work in 2019. At the time, Scarlet Alliance CEO Jules Kim stated “The passing of this bill will provide an unparalleled opportunity to capitalise on prior experience in other states and research to inform a world-leading example of regulation for the sex industry and effective, practical and accessible protections for sex workers.”

The Australian Capital Territory made sweeping changes to their legislation in 2018. South Australian sex workers have repeatedly brought decriminalisation bills before parliament, and in Queensland sex workers are engaged in a wide scale decriminalisation campaign.

But what would ‘best practice’ decriminalisation look like in Victoria?

Conflicting ideological interests and misunderstandings of how sex work operates have contributed to inconsistent understandings of what decriminalisation is among law and policy makers.

However, there are core components to decriminalisation, such as the removal of criminal laws, licensing laws and police regulators. Decriminalisation is not quasi-abolition, nor is it only about decriminalising the workers, as suggested by proponents of the ‘Nordic’ model. To protect the health, safety, rights and agency of sex workers it also requires the decriminalisation of clients, workplaces, third parties and associates.

But some jurisdictions claim to have decriminalised sex work and still retain problematic aspects, such as operator certificates, mandatory medical testing, discriminatory advertising regulations and prohibitions on sex work for temporary visa holders. Some reform bills have even sought to prevent collectives of sex workers from working together.

Victorian sex workers are urging the government to focus not on these imperfect frameworks but to pioneer a system that ensures no sex workers are left off the law reform agenda.

Scarlet Alliance has been calling for the decriminalisation of sex work for over 30 years. The Alliance recently released a national briefing paper on what constitutes ‘full decriminalisation’ — which includes removing police powers, ending the criminalisation, targeting, detention, deportation and surveillance of marginalised sex workers and ensuring sex workers have access to industrial protections, Work Health and Safety Industry Guidelines and anti-discrimination and anti-vilification protections.

The failure of licensing in Victoria

The 1985 Neave Inquiry recommended decriminalisation of many different kinds of sex work, however the legislation first enacted in 1986 in Victoria was unfortunately much narrower than the Inquiry recommendations.

Since then, Victorian sex workers have been subject to a failed licensing system that controls and monitors their behaviour. Street-based sex workers have borne the brunt of continuing criminalisation and escalating policing. Mandatory STI testing remains in place, despite being rejected by the Neave Inquiry and is in opposition to Victoria’s health strategies that promote voluntary testing as best practice.

The major failure of licensing is in its creation of a two-tiered sex industry whereby only a small percentage can meet onerous and unworkable compliance requirements. The majority of the industry work outside the law in order to protect their own safety and remains criminalised and subject to police and state surveillance.

“By singling sex workers out for pointless red tape and surveillance, licensing produces stigma and discrimination and leaves us open to targeting from police,” says Dylan O’Hara of Vixen.

Under the legislation, Victorian sex workers are required to either work for licensed brothels or agencies or work alone or with one other sex worker, and must travel to the client. Independent sex workers must register on a permanent database that can be shared with other government agencies, including law enforcement.

Special advertising rules still prohibit sex workers listing their available services or mentioning their health status, which hinders opportunities to negotiate services. Prior to 2016, they required that all advertising photographs show only head and shoulders, making sex workers additionally vulnerable to identification, stigma and surveillance.

Patten states, “Victoria has the opportunity to design a regulatory system that meets the needs of a 21st century industry. A model of decriminalisation that incorporates what we know as best practice.”

The benefits of decriminalisation in NSW

New South Wales is often referred to as the first jurisdiction in the world to have decriminalised sex work. And while NSW took a number of critical steps towards decriminalisation in 1995, it left several key omissions.

In 1995 the Wood Royal Commission found endemic and structural corruption within the NSW police force. Police were found to be extorting protection money from brothel managers and street- based sex workers.

As sex work itself was considered a victimless crime, the Commission recommended organisational reform of the sex industry. The NSW Attorney General announced amendments to the Disorderly Houses Act 1943 and brothels became a legitimate commercial land use under environmental planning law.

NSW Health, WorkCover and Local Councils became the regulators of sex industry businesses, health and safety guidelines were produced, and sex workers gained access to fair work mechanisms.

Research continues to demonstrate positive impacts of decriminalisation in NSW. In 2010, research from the University of NSW found no evidence of increased frequency of commercial sex or police corruption. Since 2012, sex workers have been able to access free legal advice via the Inner City Legal Centre’s Sex Worker Legal Service.

A 2016 report into the health of sex workers by the Kirby Institute reported high rates of consistent condom use and found that overall rate of STI infection among sex workers was similar to incidence among non-sex workers. The available data says that there are similar STI rates in NSW compared with the mandatory STI screenings in the Victorian regime, and these low STI results are most likely the result of investment in peer education and public sexual health clinics.

In 2015, a NSW parliamentary inquiry concluded that criminalisation of sex workers or clients would serve no public interest and that any licensing of individual sex workers causes harm through stigmatisation.

Repealing offences against street-based sex workers

However, the NSW model can be understood as only partial decriminalisation. A string of offences remain in the Summary Offences Act 1988 that relate to living off the earnings of sex work, specific offences for massage parlours, and public acts of soliciting sex for work within view of a dwelling, school, church or hospital.

Chantell, a trans sex worker in Sydney, states that the continued criminalisation of street-based sex workers disproportionately affects trans sex workers, who are “stigmatised by both the police and the public” and who can be “easy targets for hateful prejudices.”

She recalls that, in the past, when she experienced assault from clients, they did so “knowing full well that there wasn’t a damn thing we could do about it. We couldn’t report it to the police because they would just say: ‘Well you deserve it!’”

When Chantell experienced physical and verbal abuse and vilification she did not have the option to seek legal redress or accountability. “At the time corruption was rife within the police force in Kings Cross. Trans workers caught on the street would be rounded up and what money we had on us was taken away. We were never going to have a voice in that turbulent environment. Back then, we only had each other on the streets.”

Street-based sex work in Victoria is criminalised and actively heavily policed in operations where police pose as clients to entrap sex workers. This has escalated during COVID-19 with police attempting to entrap sex workers by offering them money to breach public health directions. Victorian sex worker, Jane Green, emphasises the need to decriminalise street-based sex work:

“Police operations that target street-based sex workers or our clients have the effect of reducing workers’ safety. If our greatest concern is avoiding police, then we have less time to make decisions and assess our safety. When the role of police is to surveil and arrest us, we are fair less likely to go to police to report crime as victims or witnesses.”

The second omission in NSW is the prevalence of discrimination against sex industry businesses from local councils in planning controls. Local council planning policies are problematic as development consent is difficult or impossible to attain and sex services premises are often required to operated in isolated industrial areas. This is despite research indicating minimal amenity impacts of sex work in neighbourhoods.

One street-based sex worker in NSW states that, “if we are working in unapproved premises or on the street in breach of the criminal law we are vulnerable to predators [and] know we can’t call on the protection of the law for fear of being arrested ourselves.”

Discriminatory local council policies has also lead to some councils hiring private investigators to determine whether sex workers are offering full service in unapproved premises. Sex workers have argued that this fraudulent posing of private investigators as clients should constitute sexual assault.

Supporting the rights of migrant sex workers

New Zealand has received similar acclaim for ‘decriminalising’ sex work via its Prostitution Reform Act 2007. However, the New Zealand model would more accurately be described as licensing, because it requires brothel owners to have operator certificates that involve providing photo identification, criminal record checks and paying a fee.

Further, while the country introduced greater rights and protections for New Zealand nationals, sex work remains prohibited for anyone on a temporary visa (such as a student or working holiday visa).

The legislation does not provide any protection from trafficking, but rather facilitates opportunities for exploitation because migrant workers have few avenues for recourse if treated unfairly or if they experience violence.

Australia’s criminal justice approach to trafficking is no better — instead of a human rights, worker rights or survivor-centred approach, police raids and targeting of migrant sex workers continues. Even in the Northern Territory, where police officers are not permitted to exercise public health powers in relation to sex work, the Australian Federal Police and Border Force continue to use racial profiling to enter sex industry workplaces under the guise of ‘welfare checks’.

While migration for sex work is common, prohibitive national immigration frameworks lack sufficient visa options for sex workers. In Australia, migrant sex workers face barriers to accessing industrial rights mechanisms because of fear of deportation and arrest and experience heightened police harassment in their workplaces.

Migrant sex workers have been vocal in speaking out against racialised policing and demanding system change. A national survey conducted by Scarlet Alliance and the Australian Institute of Criminology recommends allowing sex workers to migrate safely, receive translated visa information and access industrial protections.

Nada de Cat, a migrant sex worker, says that “the trafficking narrative has historically been used against Asian migrant sex workers since the British imperial expansion of the colonies and its’ border control.”

“Utilising the patronising narrative of helping migrant sex workers, the policies made about trafficking work directly against migrant sex workers. It is no surprise then, that the so-called ‘decriminalisation’ of the New Zealand Model explicitly criminalises migrant sex workers under the guise of helping trafficked migrants,” Nada says.

Nada warns that legislators ought to pay attention to this detail: “Compromise on the rights of street based or migrant sex workers does not constitute decriminalisation. Politicians should not make decisions behind sex workers’ backs which works against our community interests.”

Removing mandatory testing and registration

To achieve constitute full decriminalisation, the Victorian model must dismantle licensing in its entirety. Doing so includes abandoning its current policies of registration and mandatory testing.

The requirement for sex workers to register their legal details on a government database brings obvious privacy risks. Sex workers have tried to remove their names from this database without success, despite having ceased working as sex workers. Unregistered sex workers risk extortion threats, arrest or police harassment. And yet sex workers remain reluctant to give identifying details to authorities for fear of stigma and misuse of data.

Registration of individual sex workers was scrapped in the ACT in 2018 as it was shown to be ineffective and unworkable. Before this, Kym, an unregistered sex worker was threatened by a client. “He wanted his money back after the service and threatened to tell the police I wasn’t registered.” Fearing client reprisal and extortion, she convinced him she was registered in order to make him leave her workplace.

Further, decriminalisation is meaningless if it does not decriminalise sex work for people with HIV.

Currently, it is an offence in Victoria to work whilst infected with a sexually transmissible infection and for manager or agency to permit sex workers to work if they know the sex worker has a sexually transmissible infection, regardless of whether they are working safely. This offence provides the basis for requiring quarterly blood testing for sexually transmissible infections and HIV.

Mandatory testing practices have been recognised as costly and unnecessary with no public health benefit. Numerous United Nations bodies have condemned punitive HIV laws that pose barriers to accessing testing, treatment and care.

With a wide suite of prevention tools and new biotechnologies now available, people with HIV who have an undetectable viral load have little to no risk of transmitting the virus. A decriminalised model must involve the repeal of mandatory testing laws and offences for sex workers with STIs and HIV.

Sex workers and supporters at the Festival of Sex Work in 2015. Photo: Vixen Collective.

Establishing anti-discrimination protections

An imperative aspect of decriminalisation is the introduction of anti-discrimination protections for sex workers. While some states offer protection from discrimination on the grounds of occupation or lawful sexual activity, they remain ad hoc, insuffcient, and of little use when sex work is unlawful.

Recent research from the UNSW Centre for Social Research in Health and Scarlet Alliance has found that sex workers are often refused services or receive poor treatment in finance, health, education, social services and justice.

Numerous states in Australia are moving towards establishing anti-discrimination and anti-vilification protections. The South Australian Statutes Amendment (Decriminalisation of Sex Work) Bill 2018 proposed inserting a definition of “sex work” into the Equal Opportunity Act, adding clauses that would have made it unlawful to discriminate against a person because they are, or were, a sex worker.

Leanne Melling of the Sex Workers Outreach Project (SWOP NT) in the Northern Territory says that sex workers are advocating for “amendments to insert sex work and sex worker as attributes to the Northern Terrirorry Anti-Discrimination Act 1992. Further, Melling states that “Sex Workers from SWOP NT and the Northern Territory Sex Worker Reference Group (SWRG) are also calling on the Northern Territory Labor Government to develop of a NT Human Rights Charter.”

In NSW, Greens MP Abigail Boyd has introduced a robust sex worker anti-discrimination bill that is currently before parliament.

The NSW Greens are currently campaigning to decriminalise sex work and introduce anti-discrimination protections.

Expunging convictions and destroying criminal records

One of the key proposals in the recent bid to decriminalise the sex industry in South Australia involved a spent convictions clause, which would effectively expunge historical sex work convictions from a person’s criminal record.

The bill aimed to amend the Spent Convictions Act by deleting a person’s criminal record relating to sex work offences, and repeal offences relating to brothels, removing barriers for people wanting to leave the industry.

The NT Sex Industry Bill 2019 also included a clause for the “destruction of certain records”, such as sex workers’ personal and registered information as part of draconian licencing records held with the NT Commissioner of Police under the former Prostitution Act 1992.

The inclusion of a spent convictions clause in the South Australian Bill and a destruction of certain records clause in the Northern Territory Bill, along with the removal of systems for sex worker registration, is critical to decriminalisation, because criminal records gained through selling sexual services and compliance with police registration have been used as evidence to discriminate against sex workers who are seeking employment in other industries or applying to work with children.

Kat Morrison from the Sex Industry Network in South Australia states that “The spent convictions caveat in the Statutes Amendment (Decriminalisation of Sex Work) Bill 2018 in South Australia was one of the most important and necessary inclusions according to feedback from sex workers from all sectors of the industry”.

The path to decriminalisation

But how do we get there? Sex workers hold valuable lessons for decriminalisation in their campaigns and advocacy. For sex workers, regulatory reviews can be an exhausting and cyclical process. As Cameron Cox, CEO of the Sex Workers Outreach Project NSW states, “Every couple of years NSW sex workers know that there will be a parliamentary inquiry into their right to exist.”

Roxana Diamond, a sex worker and PhD Candidate, argues that we can learn from the recent failure of decriminalisation bills South Australia. There, the evidence for decriminalisation was clear: a Select Committee of the Legislative Council in 2015 concluded that it was the only model that would support the rights of sex workers and recommended the Bill pass without amendments.

However it was party politics and factional issues that failed sex workers in achieving workers’ rights. As a result, Kat Morrison, General manager of South Australia’s Sex Industry Network concurs: “Despite having the support of the Attorney General, as well as seeing the bill successfully pass the Legislative Council, sex workers were, once again, relegated to the shadows.”

Decriminalisation in the Northern Territory was achieved through the advocacy of individual sex workers and sex worker organisations, including the SWOP NT, SWRG and Scarlet Alliance.

Leanne Melling reflects, “law reform in the Northern Territory has evolved through a best practice model for sex work law reform based on: active consultation and engagement, where we as sex workers are recognised as the primary stakeholders, we’ve built collaborative relationships with other stakeholders, ensuring respectful consultations that include taking on our feedback and hearing our evidence.”

During the campaign for decriminalisation, the Sex Worker Reference Group held regular meetings where they shared their local knowledge to develop legal resources and policy submissions. Leanne said, “This community response utilised sex worker leadership, peer education, the exchange of information, skills, techniques and negotiation strategies between sex workers, combined with the delivery of evidence to facilitate reform. What has followed this process is a greater articulation and awareness of the ways in which laws and policies under licencing frameworks directly impacted on sex workers’ human rights.”

Melling reports that, “In the NT, sex workers from the SWRG, SWOP NT and Scarlet Alliance worked with government departments and stakeholders to ensure sex workers and sex service premises were equitably inserted into the Northern Territory Planning Scheme.” These groups are now “in the final stages of drafting holistic WHS guidelines for our industries workers in collaboration with the Department of Health, The Department of the Attorney General & Justice, NT WorkSafe and Unions NT advisory representatives.”

For sex workers in the NT, decriminalisation means that they know their voices have been heard, they have been treated as experts on their own lives, and they have been part of a process to design laws that will directly affect them.

Getting decriminalisation right in Victoria

The review presents both opportunity and risk for Victorian sex workers. Sex workers are tired of bearing the risks of government inaction. Because sex work law reform is so infrequent, we cannot afford to get it wrong.

Sex workers in Victoria have repeatedly stated that the existing licensing system is failing them. For decades, they have mobilised and advocated for decriminalisation, pointing out that criminal and licensing laws fuel stigma and discrimination and are seriously at odds with human rights and public health principles.

Victorian sex workers are clear on what best practice means for decriminalisation: It requires the removal of all sex work specific criminal and licensing laws, including offences for soliciting, association and living off the earnings. It allows sex workers to access existing employment, planning, and work health and safety laws. It permits independent collectives of sex workers to work together. It sits within a broader industrial and immigration framework that supports the rights, mobility and movement of migrant sex workers. It requires expunging historical convictions, removing mandatory testing and registration, introducing anti-discrimination and vilification protections, decriminalising HIV, and providing access to free legal and health services.

This the very least decriminalisation should do.

For sex workers, consultation is not about industry generally but current sex workers in particular. This is a workers’ rights matter.

In drafting the bill, government must prioritise acting upon the voices of Vixen Collective and Scarlet Alliance as the primary stakeholders.

As Dylan O’Hara states, “Licensing is a dangerous and costly failure which causes immense harm to VIC sex workers. The entire framework must go. To achieve genuine decriminalisation in VIC, the law reform process must be driven by sex workers ourselves. Sex workers are the experts on the laws that shape our lives and work. It’s our safety that is on the line.”

Decriminalisation must prioritise the rights of migrant sex workers, Aboriginal and Torres Strait Islander sex workers, street-based sex workers, sex workers living with HIV, trans and gender diverse sex workers, sex workers who use drugs, young people engaged in sex work and sex workers who are parents.

Beyond this, we must remember that decriminalisation is simply the first step in broader system change.

Decriminalising sex work means systematically rethinking how we regulate work, how we police our borders, how we perpetuate poverty, how we organise public space and who is deserving of human rights. Sex worker lives depend on it.

A short version of this article was published by the UNSW Newsroom. We thank all of the individual sex workers and sex worker organisations and collectives who contributed to this piece.