What will the decriminalisation of sex work mean for local governments?

Sex Work Decriminalisation Bill 2021: Why the legislative reform?

The Victorian Government considers that the sex work regulatory framework in Victoria perpetuated harm, stigmatisation and discrimination of sex workers attempting to simply do their job. Since the system was complex and costly with onerous registration obligations, there was poor compliance. This contributed to a culture of avoiding registration and the development of an unlicenced underground sex work industry in Victoria. This has created risks for sex workers and business operators such as:

• increased vulnerability due to poor access to safe sex equipment, limited justice and no workplace health and safety measures;
• costs and time burdens for sex workers and business operators trying to lawfully engage in the market with little commercial incentives for compliance;
• facing stigma, mistreatment and an inability to seek help without self-implication.

More generally speaking, sex workers suffer:

• unsafe working conditions which put them at risk of experiencing violence;
• persistent discrimination and stigma in the community;
• criminalisation, which:
  • increases harm to sex workers without necessarily reducing harm to community;
  • reduces sex workers’ access to justice; and
  • impacts sex workers’ safety and welfare as they operate in risky and dangerous ways to avoid prosecution;
• inappropriate zoning restrictions (e.g. brothels generally operated in industrial zones), which make sex workers vulnerable to crime due to the lack of public transport, limited foot traffic and poor lighting.

The current regulatory system is governed by the Sex Work Act 1984 and considered complex, costly and onerous with its stringent conditions on the conduct and practices of sex workers and brothels.

What is meant by decriminalisation of sex work?

Decriminalisation is largely aimed at reducing the stigmatisation of sex work and increasing the safety and wellbeing of sex workers. This will involve:

• regulation of the sex work industry like any other industry through agencies that may include local government, Worksafe and the Department of Health;
• the removal of offences and penalties for consensual sex work including street-based sex work;
• repeal the sex work licensing system, the Sex Work Act 1994 and associated regulations, to begin regulating the sex work industry through standard business laws;
• repeal offences related to mandatory testing and sexual health and introduce a new public health and infection control framework for the sex work industry focused on health promotion and harm reduction;
• increase anti-discrimination protections afforded to sex workers under the Equal Opportunity Act 2010;
• amend planning controls under the Planning and Environment Act 1987 to support decriminalisation and reduce harm for sex workers; and
  remove outdated advertising controls and restrictions on sex work businesses holding liquor licences.

What are the changes?

On 10 February 2022, the Victorian Parliament’s Upper House passed the Sex Work Decriminalisation Bill 2021 (Bill). The Bill will now go back to the Lower House where it will be almost certainly rubber stamped as the Government has a clear majority.

There are two stages to the reform with the first stage commencing in May 2022 and the remainder commencing by December 2023.

The first stage will see the amendment of the:

1. Sex Work Act 1994;
2. Business Licensing Authority Act 1998;
3. Summary Offences Act 1966;
4. Local Government Act 2020 (see below); and
5. Equal Opportunity Act 2010.

Amendment of the Sex Work Act 1994 (Old Act) will see the urgent decriminalisation of sex work through the removal of criminal penalties for engaging in consensual sexual activities, removal of a sex worker registry requirement and repealing offences related to sex work advertising.

Amendment of the Summary Offences Act 1966 will see the establishment of a new street-based sex work offence prohibiting sex work occurring near schools, childcare services and places of worship between 6:00 am and 7:00 pm or on holy days.

The second stage will see the repeal of the Old Act. A substantial result of the repeal will be the abolishment of the complicated sex work licensing and regulatory framework. Instead, sex work will be regulated like any other business in Victoria through bodies such as local governments, Worksafe and the Department of Health.

This stage will see the further amendment of the:

1. Crimes Act 1958;
2. Summary Offences Act 1966;
3. Australian Consumer Law and Fair Trading Act 2012;
4. Business Licensing Authority Act 1998;
5. Confiscation Act 1997;
6. Criminal Organisations Control Act 2012;
7. Criminal Procedure Act 2009;
8. Fortification Removal Act 2013;
9. Liquor Control Reform Act 1998;
10. Public Health and Wellbeing Act 2008;
11. Rooming House Operators Act 2016;
12. Sentencing Act 1991;
13. Serious Offenders Act 2018;
14. Sex Offenders Registration Act 2004;
15. Victoria Police Act 2013; and
16. Worker Screening Act 2020.

Amendment of the Crimes Act 1958 and Summary Offences Act 1966 will re-enact certain offences that were originally contained in the Old Act.

Amendment of the Equal Opportunity Act 2010 will establish anti-discrimination protections for sex workers including repealing a provision that permitted accommodation to be refused to sex workers.

What are the potential impacts on Local Government?

(1) Local Laws

Under s 3 of the Bill, local laws made under the Local Government Act 2020 must not be inconsistent with the purposes of the Bill. This means that laws should provide for the reduction of discrimination against and harm to sex workers.

The intention is to provide that local laws are required to be consistent with, and not conflict with or undermine, the purposes and policy intent of the Bill. For example, a local law should not re-enact a provision that is repealed by the Bill, or provide for sex work businesses to be treated differently to other businesses.

(2) Planning and Zoning

Existing sex work regulatory mechanisms are administered under the Old Act, with the planning scheme supplementing the Old Act when a new brothel is proposed. This allowed councils to consider amenity matters from a planning perspective. The soon to be repealed Act required brothels to be located away from schools, hospitals, places of worship and places that children frequent. Further, under the Old Act councils must not grant a planning permit if the development of land was for the purposes of operating a brothel if the land was within an area zoned primarily for residential use (see section 74 Sex Work Act 1994).

In repealing the Old Act in full, the licensing and registration scheme will be wholly dismantled, along with the prohibitions on granting a planning permit for brothels. Sex work businesses will be regulated the same as other Victorian Businesses and will be generally subject to the Planning and Environment Act 1987, Occupational Health and Safety Act 2004 and the Public Health and Wellbeing Act 2008. If a local council wants to subject sex workers or brothels to zoning requirements (e.g. brothels may only be situated in commercial locations), they must ensure that the proposed zoning and planning complies with the objects under the Bill.

There is nothing expressly prohibiting this type of planning in the Bill, however, it could be argued that commercial zoning regulations (using the example above) would increase stigmatisation of sex work. This would discriminate against sex workers and increase vulnerability of sex workers, ultimately contradicting the purposes of the Bill.

Despite the Old Act being repealed soon, the newly proposed section 38B of the Summary Offences Act 1966 makes it an offence for a person to solicit or invite any person to engage in sex work, or loiter for that purpose, in public places between 6:00 am and 7:00 pm or on holy days. Some prohibited locations include school premises, places that children frequent or places of worship. Though these prohibitions appear to contemplate street-based sex work, councils may still consider these prohibitions when undertaking zoning or planning for brothels or similar establishments.

~ article by Natalia Zivcic, Summer Clerk; with Michelle Nguyen, Lawyer