Explainer: The decriminalisation of sex work in Victoria
By Mirella Wong
The decriminalisation of sex work in Victoria has been a long time coming, with policy advisers working towards the decriminalisation of sex work in Victoria since 2001. The public discourse was marred by remarks insisting that the government was attempting to create ‘taxpayer funded brothels’ rather than its intent to recognise sex workers as workers, and afford them the rights of any working person.
However, in 2019, Fiona Patten MP of the Reason Party and a former sex worker herself was approached to review and recommend a new legal framework for the working rights of sex workers. Just this month, the Sex Work Decimalisation Act 2022 received royal assent and entered into law.
The Sex Work Decriminalisation Act 2022 is premised on updating the law to reflect shifting social attitudes. It particularly recognises that the current system creates laws with the effect of marginalising sex workers which do not serve to uphold their rights as workers and as humans.
What were the issues with the regulation of sex work in the past? Why do we need the Act?
The system prior to the introduced Act was complex and unwieldy resulting in very little compliance and made some types of sex work crimes, to the detriment of workers – hence the ‘decriminalisation’ aspect of the Act.
The previous regulatory framework was created by the Sex Work Act 1994. Under this Act:
Sex workers must be registered to practice their work, and the obligations set out in the Act to achieve this were onerous and confusing, resulting in only a small proportion of workers being registered
Sex work was only legal in licenced brothels. Many establishments did not obtain the requisite licencing and registrations as this was onerous, making any sex work activity occurring in these locations illegal
Street-based sex work was illegal under the Act. Street-based sex worker were disproportionately targeted by police due to the visible nature of soliciting for work. Oftentimes, these workers had other vulnerabilities making police presence even more traumatising and debilitating
Sex workers would be less likely to report any crimes committed against them for fear of being prosecuted as their line of work was inherently criminal, and for having the stigma of ‘prostitution’ on their criminal record
The onus was on sex workers to be prosecuted for their illegal activity, not on those who sought it
Unregistered sex workers or those who worked in unlicenced business did not have access to safe work equipment, such as condoms, and had no workplace health and safety oversight
What changes will the Act create?
Street based sex work will be decriminalised
The Sex Work Act 1994 will be repealed alongside its regulatory regime, in favour of regulating the sex work industry through existing bodies including regulatory agencies such as local government, Worksafe and the Department of Health. The sex work industry will gain the benefits of support and oversight to uphold the safety and rights of workers from these bodies
Dismantle the previous sex work licensing and registration system. Operating a sex work business without a licence, or for, independent sex workers, not being registered as an exempt owner-operator, will no longer be crimes
Amend planning controls under the Planning and Environment Act 1987 to support decriminalisation and create spaces for sex work to occur safely
Soliciting street-based sex work will still be illegal where it occurs near a place of worship, school or other locations frequented by children. Crimes relating to coercion, children or non-consensual commercial sexual activity will be moved from the Sex Work Act 1994 to the Crimes Act 1958
What will sex work look like now?
The new laws will create an environment where sex workers are not disproportionately attacked by law enforcement and are not rendered vulnerable due to the illegality inherent in their line of work under the former legal regime. Business operators and sex workers will furthermore be more incentivised to conduct their business in line with workplace health and safety obligations due to the unnecessary requirements of licencing and registration being removed in favour for more constructive oversight from established bodies such as the Department of Health. Sex workers will be more supported from a legal perspective in seeking redress for crimes committed against them.
References:
Crimes Act 1958
Sex Work Act 1994
Sex Work Decriminalisation Act 2022
Kovolos, Benita, ‘How will Victoria’s sex work decriminalisation bill work and will it make the industry safer?’, The Guardian, (Melbourne), 7 February 2022
Ilanbery, Sumeyya, ‘’Historic day for victoria as sex work is decrimnilased, The Age, (Melbourne), 10 February 2022
Phillip Mendes, ‘Harm minimisation vs zero tolerance: a comparative study of press reporting of the Victorian street prostitution debate’ (2004) 16(3) Social Work Review 15
Mirella Wong is a 3rd year Biomedical science/Laws student with a strong interest in the social impact of the law. She is currently a sub-editor for The Reasonable Observer, a passionate volunteer working to level out the resource inequities in regional education and a Lana del Rey apologist. Mirella’s favourite pieces of journalism currently come from Chloe Hooper of The Monthly and Ezra Klein of Vox and NYT.