Vixen Collective and Scarlet Alliance joint statement on Consumer Legislation Amendment Bill 2019

Read a plain English version of the joint statement here 

Read the Department of Community Justice statement on Consumer Legislation Amendment Bill 2019 here 

INACCURATE LEGAL INFORMATION IN VICTORIA RISKS SEX WORKERS’ SAFETY September 2019

Accurate legal information for sex workers is critical in Victoria given the complicated nature of Victorian sex work regulation, comprising more than 250 pages of laws and regulations. Inaccurate, misleading or incomplete legal information can lead to sex workers acting in contravention of Victorian law, leading to potential police attention, arrest, charges, prosecution, jail, criminal records, and even deportation.

In the first week of July this year, a group called ‘Sex Work Law Reform Victoria’ (SWLRV) published a ‘law guide’ online that contained inaccurate information in relation to sex work laws in Victoria.

The local sex industry health service RhED provided translation services for this ‘law guide’ (for the ‘law guide’ to be translated into Chinese, Korean, Thai and Vietnamese), promoted the ‘law guide’ on social media and are directly distributing the ‘law guide’.

As indicated above, distributing and promoting inaccurate legal information places sex workers at risk and is not acceptable.

Who is SWLRV? - In mid-2018 Star Health (who are the organisation who manages RhED’s funding) was party to the decision to set up SWLRV, including the decision that SWLRV would be “supported by RhED” and that “there will be two agencies, RhED and Sex Work Law Reform Victoria, advocating with the same voice”.

Given Star Health’s role in the creation and ongoing running of SWLRV (through RhED), we call on them to take action remove the ‘law guide’ as a matter of urgency and to institute policy that prevents incidents that risk community safety in this way in future.

See the joint statement by Vixen Collective and Scarlet Alliance here

Read a plain English version of the joint statement here 

OVERVIEW
In Victoria, the current regulatory system for sex work is licensing. Licensing creates a two-tiered sex industry where a small percentage of the industry can meet compliance requirements while the majority of the industry cannot and is forced to operate outside of the legal framework. Licensing limits sex workers’ choices over our working environment and style of work, by providing incentives and punishments to effectively coerce sex workers into Government-approved work. Licensing means reduced options for sex workers and reduced control over working environments and safety. As Vixen Collective (Victoria's peer only sex worker organisation) also notes "Within the licensing system in Victoria, Victorian police fulfill an enforcement role, which creates significant barriers for sex workers accessing police assistance."
The Victorian legislation is governed by the: Sex Work Act 1994 (formerly known as the "Prostitution Control Act 1994"), Sex Work Regulations 2016 (which saw the Sex Work Regulations 2006 revoked), and the Public Health and Wellbeing Act 2008.

Contents:

• [1] Brothel Work
• [2] Licensed Brothels
• [3] Small- Owner Exempt Brothels
• [4] Escort Agencies
• [5] Private Escorts/Sex Workers
• [6] Street Based Sex Work
• [7] Advertising
• [8] The BLA
• [9] Mandatory Testing; Criminalisation of Sex Workers living with HIV and STIs
• [10] VIXEN Collective, Victoria's Sex Worker Peer Only Organisation
• [11] Links

Sex Workers and supporters at rally calling for decriminalisation in Melbourne, Victoria in 2015

 [1]  Brothel Work A brothel is defined as any premises made available for the purpose of sex work services at those premises. (Sex Work Act 1994)

If you work in a licensed brothel- the brothel itself registers under the licensing system (i.e. as an individual sex worker working in a licenced brothel, you do not need to register with BLA and obtain an SWA number to comply with the laws- as the brothel itself registers with a licence in that case )

XE denotes "Exempt Escort" in a registration number BE denotes Licenced Brothel in a registration number

See also- mandatory testing section towards end of this page.

If you wish to work independently (and/or with one friend/colleague) registering as a small owner operator exempt brothel (and getting an SWA) is required under the laws in Victoria. (more detail below under Small Owner-Operated (Exempt) Brothels and Private escort sections)

 [2] Licensed (Commercial) Brothels Brothels are regulated by local council planning. This means the place you work from has requirements outlined in the Planning and Environment Act 1987 and requires a planning permit issued by the Council for it to be a licenced brothel. Councils primarily monitor compliance with planning requirements.

Currently brothels are limited to 6 rooms (Sex Work Act 1994). Some older brothels, established before June 1995, are larger.

You have the right to refuse to see a client if you think the situation is unsafe or you think the client may be violent. You can’t be fined or punished in any way for refusing a client according to the law under Sex Work Regulations 2006. 

The Public Health and Wellbeing Act (2008) states that sex workers must be provided with a free supply of condoms and lubricants at no charge in a brothel. (Public Health and Wellbeing Act 2008).

The proprietor of a brothel must provide clean linen and showers and baths with a continuous and adequate supply of hot and cold water for the use of you and your clients (Public Health and Wellbeing Act 2008). 

Unless your own client has just used it, you are not required to clean or disinfect a bath or shower in a brothel. If you do clean or disinfect the bath or shower your client just used - you must be provided with protective clothing. Apart from this circumstance you are not required to clean any bath, shower, toilet or spa unless you are employed as a cleaner (Sex Work Regulations 2006).

According to law you should never have to pay a bond or a fine in a legal brothel.  

 [3] Small Owner-Operated (Exempt) Brothels An "exempt sex work service provider" can operate a brothel with up to one other person working in the brothel, apart from themselves. You don’t need a brothel licence from the BLA. You do, however, need a permit to operate a brothel granted under the Planning and Environment Act 1987. 

To comply with the licencing regime, your business would need to be 100 metres away from any home and 200 metres away from any church, school, hospital, place of worship, children’s services centre or any place where children spend time regularly. (In the central business district bounded by Spring Street, Flinders Street, Spencer Street and Latrobe Street your business would need to be 50 metres away from the nearest residence.) The area must be zoned industrial.

To find a place you often have to disclose the nature of the proposed business to real estate agents. You must tell the owner that you will be setting up a small owner operated brothel and you will need their written approval to use the building as a brothel.

Once you have this permission you need to apply for a planning permit from the Planning Department of your local Council. Planning permits applications are often rejected at this level. If Council rejects the application you can appeal the decision at the Victorian Civil and Administrative Tribunal. (often requires legal support for this process)

If you get a planning permit you register your name, date of birth, address, business name and address with the BLA as an exempt prostitution service provider.  You can have one other sex worker working with you as an exempt provider but their details must also be registered with the BLA. There is no fee to register. The BLA will also want your planning permit number, the name and address of the owner of the building and the letter of approval from the owner. The BLA will then issue you with a SWA number. Sex workers fairly commonly report receiving their SWA about a week after completing registration (this is no guarantee and only based on anecdotal experience). According to BLA and the laws that govern the BLA: the details you register are not available to the public and it is possible to ask for your details to be taken off the register at your request.  Officially it is stated that only approved people from the BLA, Department of Justice and Sex Industry Co-ordination Unit of the Victorian Police can access records relating to SWA.

See Section 23 of Sex Work Act 1994 for more about special provisions for small owner-operated businesses.

   [4] Escort Agencies Escort Agency means a business of facilitating or providing sexual services to persons at premises not made available by the agency. You get your bookings from the agency, usually by phone.

If you work for an escort agency you might only visit the agency office once a week or so to hand over the agency’s share of your weekly takings.

When a client contacts the agency, the receptionist must describe you accurately so that expectations of you are in line with who you are. However, it’s up to you - not the agency or receptionist - to negotiate with the client the sexual services you will be providing.   The licensee must make sure you are supplied with a one way or two way electronic device, such as a mobile phone, radio intercom or a buzzer so you can contact the licensee or approved manager at any time while you are working (Sex Work Regulations 2006)

You have the right to refuse a booking if you think the situation is unsafe or the client may be violent. The agency should not force you to do the booking or fine or punish you for not doing a booking (Sex Work Regulations 2006 Part 2)

 [5] Private Escorts  Victorian legislation stipulates various requirements for individuals to work alone (or along with one other sex worker) and be in compliance with the regulations. A small owner-operator escort service (i.e. an individual or 2 sex workers working together) is refered to as a Small Owner-Operated (Exempt) Brothel in legislation (see section 3 above) This means that private workers- working by themselves or with up to one other worker do not need to register to obtain a brothel licence- you do however, need to register as an exempt brothel and obtain an SWA number in order to comply with the law in Victoria. If you are working with another sex worker (ie offering doubles) they need to register as well to comply with the law.

In 2001 according to the BLA there were 1,461 exempt sex work service providers who operate their own escort agency, (defined as an individual service provider or as an individual working with a maximum of one other person apart from themselves.

Link here to CAV Website- "Apply for a sex work service provider's licence" 

To register you need to give your real name and address, any and all names and phone numbers you will be using in any advertising, a passport size photo of yourself and a photocopy of a true form of I.D signed by a witness. (The information on the Register is not available to the public and can be removed from the active register or "deregistered" on your request. However,a historical record of your registration will remain and cannot be removed.)

Once you are registered the BLA will give you a SWA number (formerly known as a PCA number) and you can advertise for business in compliance with the regulations* (subject to laws as described below under Advertising). 

You can employ a driver, a receptionist or security person but you can’t advertise for staff. Anyone who takes a cut of your booking money for finding clients risks penalties unless they have a licence as an escort agency.

It is also unlawful to provide sexual services to clients at your home or own premises unless you have a brothel licence (see above) or are approved as an exempt brothel (see above section) (Sex Work Act 1994).

 [6] Street Work Street sex work is criminalised and is heavily actively policed. Current police operations in St Kilda (the main street based area) target sex workers and clients. There are police in marked police cars as well as undercover police posing as both sex workers and clients. There has been broad ongoing discussions about the decriminalisation of street based sex work for decades but no action from government.  

Street Based Sex Workers have been charged under Section 13 of the Sex Work Act 1994 which states that
"a person must not for the purpose of sex work solicit or accost any person or loiter in a public place."
Section 13 of the Sex Work Act 1994 also states that
"a person must not for the purpose of sex work intentionally or recklessly solicit or accost any person or loiter in or near—

(a) a place of worship; or

(b) a hospital; or

(c) a school, education and care service premises or children's services centre; or

(d) a public place regularly frequented by children and in which children are present at the time of the soliciting, accosting or loitering.
Click here to view Section 13 of the Sex Work Act 1994

The Sex Work Act 1994 under Section 12 also states that
"a person must not...
(a) loiter in or frequent a public place for the purpose of, or with the intention of, inviting or soliciting any person to offer sex work services himself or herself with him or her or another person or of being accosted by or on behalf of a sex worker; or
(b) in a public place invite or solicit any person to offer sex work services himself or herself with him or her or another person.
Click here to view Section 12 of the Sex Work Act 1994

Banning Notices
Section 21C of the Sex Work Act is about banning notices. According to the Act, "A relevant police officer who suspects on reasonable grounds that a person is committing or has just committed a relevant offence within a declared area may give the person a notice banning the person, for the period specified in the notice, from the declared area."
A Police Officer "must not give a banning notice to a person unless the police officer believes on reasonable grounds that the giving of the notice may be effective in preventing or deterring the person from committing a further relevant offence."
If a police officer is not in uniform, they must produce proof of his or her identity and official status before issuing a banning notice.
The period specified in the banning notice must not exceed 72 hours starting from the time the notice is given to the person to whom it applies.
Police cannot give a banning notice if they believe or have reasonable grounds for believing the person lives or works in the declared area.
No more than one banning notice may be given to a person for a declared area in respect of the same relevant offence, but a banning notice may be given to a person who is already subject to a banning notice for the declared area if the subsequent notice is given in respect of a separate relevant offence.
Click here to view Section 21C of the Sex Work Act 1994

Attorney General’s Advisory Group into Street Prostitution 2002 This report marked the end of a broad consultation process involving sex workers, Rhed, legal and health experts, local council and people who live in areas where the street based sex industry is visible.  Many of the outcomes were positive and recommended legislative reform including the decriminalisation of street based sex work in some areas and the creation of ‘safe houses’.  Unfortunately the Labor Government in Victoria rejected the recommendations and no further action has been taken since the release of the report. Link

 [7] Advertising
On June 1, 2016 some changes were made regarding laws advertising for sex workers; the overall framework unfortunately remained unaltered, despite submissions and advocacy for decriminalisation and the repealing of these discriminatory and counter productive laws. There are some changes to what content sex workers can now use in our advertising- which are outlined below.

Sections 5a, 5b and 5c of the 'Sex Work Regulations 2016' state: " (5) An advertisement for a business carried on by a sex work service provider that is published on the Internet may contain a photographic or other pictorial representation of a person which is not restricted to the head and shoulders, provided that the advertisement does not contain a photographic or other pictorial representation of—

(a) the bare sexual organs, buttocks or anus of a person, or frontal nudity of the genital region; or

(b) bare breasts; or

(c) a sexual act or simulated sexual act..."

(prior to June 1 2016, advertising laws for sex workers had restricted pictures legally allowed to only heads and shoulders)

Our Victorian organisational member, Vixen Collective, conducted a consultation with Victorian sex workers and in conjunction with St Kilda Legal Service has received feedback from Consumer Affairs Victoria (CAV) that although this feedback does not constitute legal advice, Consumer Affairs Victoria have stated that they support the following:

Section 5(a):

Sheer underwear may be worn but it cannot be completely transparent Very short shorts, hot pants, thong and G-string underwear can be worn but it must cover the genitalia and anus of a person This includes – the use of head hair, shadows, censorship bars or blur/special effects, another body part or product to cover the area Section 5(b):

The nipple/areola of a female’s breasts must be covered in all advertisements Otherwise exposure of the rest of the breasts is appropriate This includes – the use of head hair, shadows, censorship bars or blur/special effects, another body part or product to cover the area Section 5(c):

“Sexual act” is defined as per the term “sexual services” in the ‘Sex Work Act 1994’ section 3.

St Kilda Legal Service also has information on their website on this subject here. (opens in new window)

The entire "Advertising Controls" section of "Sex Work Regulations 2016" can be accessed here. (opens in new window)

To view a pdf file of the entirety of the Sex Work Regulations 2016 (part of which includes advertising regulations) see here. (Opens new window)

To view submissions on the Sex Work Regulations 2016 consultation (including by Scarlet Alliance, our sex worker member organisation in Victoria- Vixen Collective and our associate member organisation, RhED) click here.

The Sex Work Act 1994 (Section 17) restricts advertising about sex work. It says that an ad must not:

• describe sexual services
• advertise through broadcasting or television
• induce a person to work as a sex worker
• use the words “massage”, “masseuse” or "remedial." or imply that the business is a massage business
• refer to the health of, or any diagnostic procedures or medical testing undertaken by, the person offering sexual services.

Advertising cannot contain a photographic or other pictorial representation of a particular person unless that person has given written consent for that advertisement and a copy of the signed consent has been given to that person

The size of an advertisement that appears in print can’t exceed 18cms by 13cms. If you place two ads in one publication the two added together can’t exceed 18 cms by 13 cms.

An ad can talk about the sexual orientation of the sex worker (for example, ‘female worker to male client’) and it can state that safe sex is practised and that condoms are always used.

To comply with the Sex Work Act 1994, advertisements must contain SWA number. The SWA number "must be clearly legible in a point type no smaller than the smallest point type appearing in the advertisement or 7 point type, whichever is the larger." (Section 9 (2))

 [8] The Business Licensing Authority The Business Licensing Authority is the place where people:

• register as running exempt escort or exempt brothel businesses
• apply to become registered as an Approved Manager of a brothel or renew an approval
• lodge applications for licences if they want to run a brothel or escort agency

The Business Licensing Authority is an independent statutory authority. 

The BLA can refer relevant matters to the police, WorkCover, the Australian Taxation Office, the Department of Immigration and Border Protection, Consumer and Business Affairs Victoria and any other body.

Inspectors from Consumer and Business Affairs have powers to enter the workplace that are the same as the police. 

Consumer and Business Affairs Victoria and the police can take disciplinary action against licensees at the Victorian Civil and Administrative Tribunal (VCAT). (Authorised local government officers can also do this.)

Link here for a full look at all the BLA forms and links

   [9] MANDATORY TESTING; CRIMINALISATION OF SEX WORKERS LIVING WITH HIV and STIs

Section 20 of the Sex Work Act 1994 states, "A person must not work as a sex worker during any period in which he or she knows that he or she is infected with a sexually transmitted disease." Under the act, "sexually transmitted diseases" is defined as including HIV.

To comply with the requirements of the Sex Work Act 1994 [s.19.(2)(a)], sex workers working in licenced brothels and escort agencies are required to provide an "attendance certificate" that states:

• you have attended an STI testing
• your name (working or preferred name as this is to show the brothel)
• the name/basic information of the doctor
• that blood tests and swab tests have been carried out, and
• the date testing occurred

The certificate is valid for three months from the date it is issued.

The Sex Work Act states that BOTH blood tests and swabs are mandated - and this is in:

• brothel based and escort agency workers -.19(2)(a), and
• all sex workers - s.20(2)(a)
  

Section 18A of the sex work act also states that: (1) A person must not provide or receive sex work services unless he or she has taken all reasonable steps to ensure a condom or other appropriate barrier is used if that sex work involves vaginal, anal, or oral penetration or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible infections.

Penalty: 20 penalty units.

1. 18A(2) amended by No. 23/2016 s. 38.

   (2) A person who provides or receives sex work services must take all reasonable steps to minimise the risk of acquiring or transmitting sexually transmissible infections while providing or receiving those services.

Penalty: 20 penalty units.

Since October 2012, mandatory testing has been 3 monthly, prior to this it had been monthly for STI swabs and 3 monthly for blood tests.

Free and confidential STI testing from the Melbourne Sexual Health Centre, 580 Swanston Street, Carlton.

"It is apparent that mandatory testing of HIV and STIs among sex workers in Australia has proven to be a barrier to otherwise successful HIV and STI peer education, prevention and free and anonymous testing and treatment. The outcomes of mandatory testing are counterproductive to reducing HIV and STI rates, do not reach the intended target group, are costly and inefficient, and mandatory testing has proven to be a very difficult policy to repeal once in place. Scarlet Alliance, the Australian Sex Workers Association, as well as numerous academics and policy leaders in Australia recommend against mandatory testing of HIV and STIs among sex workers."
-"Mandatory Testing for HIV and Sexually Transmissible Infections among Sex Workers in Australia: A Barrier to HIV and STI Prevention"By Jeffreys, Fawkes and Stardust, 2012

 [10] Vixen Collective

VIXEN is Victoria's sex worker peer only organisation. They are organisational members of Scarlet Alliance You can follow their activism and get involved:
- www.vixencollective.org

• @VixenCollective
• Vixen on Facebook
• Vixen Collective Peer Support Line: 0414 275 959
• Email: info [@] vixencollective.org

 [11] LINKS

• Consumer Affairs guide to sex work laws
  - The Role of Victims of Crime in the Criminal Trial Process Submission by VIXEN Collective to Victorian Law Reform Commission, February 2016.
  - Media: Sex worker group Vixen Collective disappointed by Victorian regulation review January 29th, 2016
  - by Penny Crofts, JaneMaree Maher, Sharon Pickering and Jason Prior, March 2012.