Background information
After years of advocacy by sex workers both past and present, the Sex Work Decriminalisation Act 2022 was passed on 22 February 2022. This new law means that everywhere in Victoria, sex work is recognised as work, and will be regulated through standard business laws instead of discriminatory licensing and criminalisation. Sex workers deserve to feel safe at work, and decriminalisation is the first step in achieving occupational safety and human rights for all sex workers.
Victoria is the third jurisdiction in Australia to decriminalise sex work, behind New South Wales and the Northern Territory. Unfortunately the Victorian law changes do not achieve full decriminalisation for all sex workers, and retain unjust and discriminatory laws regarding street-based sex work. Sex workers in Victoria have made it clear that no sex worker should be left behind, and sex-worker peer organisations like Vixen and Scarlet Alliance will continue to fight for full decriminalisation for all sex workers.
From 30 July 2023, changes to the Crimes Act 1958 affect how the criminal law relating to sexual consent operates in Victoria. Some of these changes directly impact sex workers and their clients.
Sex work decriminalisation – two-stage roll out
The Sex Work Decriminalisation Act 2022 is being rolled out in two stages, meaning that some changes occur in Stage 1 and others follow in Stage 2:
- Stage 1 – changes are in force from 10 May 2022
- Stage 2 – changes are in force by 1 December 2023.
This means that changes come into force at different times, and these changes will have different impacts for different sex workers and their clients.
What is changing and when?
Sex Work Decriminalisation Act 2022 Stage 1 – from 10 May 2022:
- It is not an offence for sex workers to work with a sexually transmitted infection (STI) or blood borne virus (BBV). Sex workers living and working with HIV are no longer criminalised.
- Sex workers do not have to provide sexual health certificates or undergo mandatory STI testing. Sex workers manage their own sexual health and safety in consultation with their healthcare providers without criminalisation.
- It is not an offence to not use condoms at work. Sex workers can make choices about the services they offer based on personal risk assessment without criminalisation.
- Independent/private sex workers do not need to register with the Victorian Business Licensing Authority (BLA) and hold a Sex Work Act (SWA) number. The Victorian government has destroyed the register.
- Changes to advertising regulations mean that sex workers can describe their services and advertise using nude images if they choose.
- Changes to the Equal Opportunity Act 2010 mean that it is illegal to discriminate against a person because of their ‘profession, trade or occupation.’ This means that people and organisations can’t discriminate against sex workers, and accommodation providers, including hotels and motels, can’t ask sex workers (or clients) to leave or call the police if sex work is occurring.
Sex Work Decriminalisation Act 2022 Stage 2 – from 1 December 2023:
- The Sex Work Act 1994 is fully repealed – there is no brothel licensing system in Victoria.
- Victorian sex work businesses (both establishments such as brothels and independent/private sex workers) are covered by Victorian planning laws and occupational health and safety laws like any other business.
- Liquor controls for sex work businesses are established, meaning sex work businesses may serve alcohol provided they comply with relevant regulations.
- Sex workers and sex work businesses are not subject to specific controls in the Public Health and Wellbeing Act 2008 beyond responsibilities shared by all Victorian residents and businesses.
Crimes Act 1958 changes – from 30 July 2023:
- If a person (including a sex worker) consents to any sexual activity ‘on the basis that a condom is used and either –
- before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or
- the person who was supposed to use the condom intentionally does not use it –
Then there is no consent to the sexual activity and the activity becomes a sexual offence (see Crimes Act 1958 (Vic) s 36(2)(ka)
- If a person (including a sex worker) engages in any sexual activity because of a false or misleading representation that the person will be paid –
Then there is no consent to the sexual activity and the activity becomes a sexual offence (see Crimes Act 1958 (Vic) s 36(2)(m).
What do the changes mean for me?
Most changes in the Sex Work Decriminalisation Act 2022 have no direct impact on the clients of sex workers or sex work businesses, but you may notice some changes to the way our businesses operate.
Advertising
Stage 1 removes laws around advertising specific to sex work. Sex workers will no longer need to register for an SWA number and do not need to include an SWA in advertisements. Sex workers can choose how they describe their services in advertisements, including: what they do and don’t offer, services relating to massage, any safe sex practices they employ and include nude photos in their advertising. Sex workers and sex work businesses are now subject to the same advertising laws as other businesses in Victoria.
Sexual Health
Sexual health testing and sex work certificates
From Stage 1, sex workers are no longer legally required to undergo sexual health testing every 3 months, and are not required to provide sexual health certificates to workplaces. This is a positive change – it allows sex workers to manage their own health on the advice of healthcare professionals without police enforcement. All sexually active adults, including sex workers and their clients, have a responsibility to get tested regularly and care for our own sexual health.
For more information on accessing sexual health services, visit Melbourne Sexual Health Centre or see Vixen’s factsheet on Sex Work Decriminalisation and Sexual Health – Information for Clients.
Condom use and safer sex practices
From Stage 1, it is not an offence for sex workers to not use condoms at work. Sex workers have always been experts in their own sexual health and leaders in safer sex practices. Sex workers have a deep understanding of safer sex practices and are well versed in navigating and managing sexual health. Sex workers have always shown high rates of testing outside of government mandates, and low rates of sexually transmitted infections (STIs) and blood borne viruses (BBVs).
This won’t mean that sex workers will stop using condoms at work, and clients of sex workers must abide by the rules and boundaries set by a sex worker during their service. From 30 July 2023, if a person consents to any sexual activity on the basis that the other party wears a condom, it is a crime for another person to remove or tamper with the condom (Crimes Act 1958 (Vic) s36(2)(ka)).
All sexually active adults, including sex workers and their clients, have a responsibility to get tested regularly and care for our own sexual health.
Sexually Transmitted Infections (STIs) and Blood Borne Viruses (BBVs)
From Stage 1, it is not an offence for any person (including sex workers) with a sexually transmitted infection (STI) or blood borne virus (BBV) to work while they have an infection or virus. All adults in Victoria (including sex workers and their clients) who have, or are at risk of having an STI and/or BBV are still required to take all reasonable steps to eliminate or reduce the risk of passing on an infection (see Public Health and Wellbeing Act 2008). Sex workers are well equipped to manage their own sexual health and have always maintained safety for themselves and their clients.
For more information on accessing sexual health services, visit Melbourne Sexual Health Centre, or see Vixen’s factsheet on Sex Work Decriminalisation and Sexual Health – Information for Clients.
Street based sex work
From Stage 1, it is not an offence to solicit, or loiter (wait for and meet clients) in most public places in Victoria, and it is legal for clients to meet sex workers in most public places.
However, street based sex work is not fully decriminalised. Offences remain in the Summary Offences Act 1988 meaning that street based sex workers can’t work, and clients cannot meet sex workers:
- At or near places of worship, schools, children’s services, or education and care services between 6am and 7pm every day, or
- At or near places of worship at any time on prescribed days. The prescribed days are: Yom Kippur, Hanukkah, Ramadan, Eid al-Fitr, Christmas Eve, Christmas Day, Good Friday, Easter Saturday, Easter Sunday, Orthodox Good Friday, Orthodox Easter Saturday, Orthodox Easter Sunday. The day must be significant to the place of worship – e.g. Christmas Day applies to a Christian church.
Penalties for remaining street based sex work offences
Police may deal with the remaining sex work offences by issuing an on-the-spot fine, which can be up to 2 penalty units (currently $363.48). Sex workers and their clients may also be charged with these offences. The penalty will depend on whether you have previously committed the same offence:
- For a first offence – up to 10 penalty units (currently $1,817.40) or imprisonment for 1 month.
- For a second offence – up to 30 penalty units (currently $5,452.20) or imprisonment for 3 months.
- For any subsequent offences – up to 60 penalty units (currently $10,904.40) or imprisonment for 6 months.
Public order offences (for example public nudity and offensive behaviour) continue to apply in Victoria.
Anti-discrimination protections
From Stage 1, it is illegal to discriminate against a person because of their ‘profession, trade or occupation’ (Equal Opportunity Act 2010). This means that people and organisations can’t discriminate against sex workers, and that accommodation providers, including hotels and motels, can’t ask sex workers and clients to leave or call the police if sex work is occuring.
Independent/private sex work
The main changes to independent/private sex work occur as part of Stage 2, by 1 December 2023. From this time, independent sex workers will be treated in the same way as small and home-based businesses by relevant planning laws. Until this time, restrictions in the Sex Work Act 1994 as to where independent/private sex work can take place continue to apply.
Sex work businesses
Sex work businesses such as brothels and escort agencies continue to be licensed by the Business Licensing Authority until Stage 2 in December 2023. This means that unlicensed venues may still be at risk of policing practices until this time.
Resources
Vixen – Victoria’s peer-only sex worker organisation
Victorian Department of Health – Decriminalisation of Sex Work
https://www.health.vic.gov.au/preventive-health/decriminalisation-of-sex-work
Premier of Victoria – Affirmative Consent Model Now Law in Victoria
https://www.premier.vic.gov.au/affirmative-consent-model-now-law-victoria
Victorian Equal Opportunity & Human Rights Commission – Sex work discrimination – Your rights and responsibilities under the Equal Opportunity Act 2010