Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 Sex Work Law Reform Victoria Inc. (Equality. Safety. Justice)
Email - [email protected] Postal Address - PO Box 3071 South Melbourne VIC 3205 Phone: 0420 644 330
Web - www.sexworklawreformvictoria.org.au ABN: 23 507 730 290
Committee Secretariat Parliament of Victoria Public Accounts and Estimates Committee Parliament House, Spring Street EAST MELBOURNE VIC 3002
31 July 2020
Dear Secretariat,
Sex Work Law Reform Victoria Inc. (SWLRV) is an independent non-partisan volunteer group led by sex workers, lobbying for the legal rights of sex workers in Victoria. We provide accessible explanations to people working in the sex industry about their legal rights and responsibilities.
We appreciate this opportunity to contribute to the Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic and attach our submission accordingly. Our submission comments on the manner in which the Victorian government has engaged with Victoria’s sex industry while seeking to manage the COVID-19 pandemic.
Sincerely,
Sex Work Law Reform Victoria President Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 2 Contents Page
1. Executive Summary
2. Summary of Recommendations
3. Glossary
4. Introduction
5. Sex Work Law Reform Victoria – an advocacy group for sex workers
6. Victoria’s Sex Industry
7. Key Populations
8. Who Communicates Coronavirus Directions to the Sex Industry?
9. Regulatory Bodies
10. Legal Definitions Impede Clear Communication of Directions
11. What is a Massage Parlour?
12. March 2020 – First Directions
13. May 2020 – The Chief Health Officer and Sex Work
14. July 2020 – Lack of Clarity re Directions
15. Who is Responsible for Communicating to Sex Workers?
16. The Role of the Business Licensing Authority
17. The Future
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 3 1. Executive Summary
The Victorian Government’s public communications about COVID-19 Directions pertaining to the sex industry have been ambiguous and have resulted in confusion. With the Victorian Government failing to identify the largest sector of the sex industry in its communications, a significant number of sex workers were left unclear as to their status if they continued to work during the various coronavirus Directions.
2. Summary of Recommendations
Recommendation 1
Identify Victorian sex industry businesses as occupational settings potentially at low risk of participation in testing.
Recommendation 2
COVID-19 communication efforts to encourage testing and adherence to public health measures in order to prevent and limit outbreaks of disease should be developed and disseminated in conjunction with sex industry community organisations.
Recommendation 3
The Victorian government to cease using the term ‘massage parlour’ in explanations of coronavirus Directions.
Recommendation 4
The Victorian government to collaborate and consult sex worker and sex industry groups when developing, implementing and communicating future Directions aimed at halting the spread of the Novel Coronavirus 2019 issued under the Public Health and Wellbeing Act 2008 (Vic).
Recommendation 5
All future Directions aimed at halting the spread of the Novel Coronavirus 2019 issued under the Public Health and Wellbeing Act 2008 (Vic) should explicitly refer to the status of both brothels and escort agencies.
Recommendation 6
The Victorian DHHS website to explain, in plain English, whether escort agencies and brothels can remain open under any future Directions aimed at halting the spread of the Novel Coronavirus 2019 issued under the Public Health and Wellbeing Act 2008 (Vic).
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 4 Recommendation 7
Victorian DHHS to appoint a role within the Department to act as a single point of contact for all sex industry inquiries.
Recommendation 8
The Victorian Government should prioritise providing public clarifications on the meaning and interpretation of Directions, rather than providing private clarifications via correspondence with individuals.
Recommendation 9
Each time coronavirus Directions change, the Business Licensing Authority is to email a clarification to all sex worker service providers (licensees), sex work brothel managers and sex work providers (exempt).
Recommendation 10
Each time coronavirus Directions change, the Business Licensing Authority is to publish on the Consumer Affairs Victoria website, a clarification as to which sectors of the sex industry are permitted to operate and which are not. Any such clarification must refer to the status of private sex workers.
Recommendation 11
All public communications relating to COVID-19 and the sex industry to be translated into Chinese, Thai and Korean.
Recommendation 12
The Minister for Consumer Affairs to reinstate the Sex Work Ministerial Advisory Committee as required under s 67 of the Sex Work Act 1994 (Vic).
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 5 3. Glossary
Adult Industry Business
Sex industry businesses as well as other related business types. This includes escort agencies, brothels, private sex workers, sex on premises venues and strip clubs.
Brothels
Commercial premises in which sex workers meet and provide a sexual service to their clients in the brothel premises, and the brothel takes a ‘cut’ of the money they earn. There are 88 licensed brothels and over 500 unlicensed brothels in Victoria.
Business Licensing Authority (BLA)
Provides licences and registration to sex industry businesses and individual sex workers.
Consumer Affairs Victoria (CAV)
The BLA Registrar and staff from the Licensing branch of Consumer Affairs Victoria also support the BLA’s work.
Direction
A Direction issued by the Deputy Public Health Commander under the Public Health and Wellbeing Act 2008 (Vic) in response to coronavirus.
Escort Agency
A sex industry business whereby clients contact the agency directly, then the agency sends the sex worker to the client’s home or hotel/motel. The escort agency takes a ‘cut’ of the money the sex worker earns. There are 22 businesses licensed to provide escort agency services in Victoria.
Incall service
The provision of commercial sexual services at a sex worker’s private residence.
Massage Parlour
Commercial premises which provide non-sexual massage services to clients in the massage parlour.
Outcall service
The provision of commercial sexual services at the home or hotel/motel of a client of a private (self- employed) sex worker.
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 6 Private sex workers
Individual self-employed sex workers arrange their own advertising, meet their clients indoors and keep all of the money the clients pay. Private sex workers do not have a boss or manager and do not give anyone else a ‘cut’ of their earnings. Private sex workers are the most common type of sex worker in Victoria. In 2019 there were 1,167 private sex workers registered with the Business Licensing Authority (BLA) in Victoria. There are many thousands more unregistered private sex workers.
RhED (Resourcing, Health and Education)
A government funded community health service for the sex industry in Victoria.
Sex Industry
Businesses and individuals providing sexual services for financial gain. This includes sex industry businesses (brothels and escort agencies) as well as individual self-employed sex workers.
Sex Industry Business
Includes businesses that provide for or arrange sex work. Brothels and escort agencies.
Sex Industry Worker
Sex workers and other ancillary staff working in the sex industry. This includes brothel managers, brothel owners, receptionists, escort agency drivers, cleaners, personal assistants.
Sex On Premises Venue (SOPV)
A business that charges an entry fee to patrons who then may choose to engage in non-commercial sex with other patrons on the premises. Gay sex saunas are an example of an SOPV.
Sex Work Act 1994 (Vic)
The Act which regulates sex work in Victoria.
Sex work providers (exempt)
The Business Licensing Authority’s (‘BLA’) term for private sex worker.
Sex Worker
A person who provides services that involve the person participating in sexual activity with another person in return for payment or reward. Sex workers can work in brothels, escort agencies, be self- employed (private sex work) or engage in street-based sex work.
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 7 4. Introduction Victoria recorded its first case of coronavirus on 25 January, 20201. Since March 2020, various Directions have required parts of the sex industry to remain closed. The Victorian Government has engaged with sex industry representatives in order to formulate safely staged re-opening of sex industry businesses when conditions permit.
5. Sex Work Law Reform Victoria – an advocacy group for sex workers
Sex Work Law Reform Victoria (SWLRV) is a volunteer non-partisan lobby group comprised of former and current sex workers. We formed in 2018 for the express purpose of lobbying and advocating for the full decriminalisation of sex work in Victoria. We incorporated in 2019 as a not for profit organisation, and describe ourselves as an activist, advocacy and political lobby group. Our committee is made up of seven sex workers, with a further ten volunteers on our team. We continue to advocate for the legal rights of sex workers. Throughout this pandemic, SWLRV has been the most proactive sex worker organisation when it comes to publicly clarifying what coronavirus Directions mean for sex workers. 6. Victoria’s Sex Industry In any given year there are between 5,000 and 10,000 sex workers in Victoria2. Sex industry regulation varies from state to state3, with Victoria adopting a licensing system4. In Victoria a minority of sex workers and sex industry businesses operate legally, with the remaining majority operating outside the law in an underground, unregulated environment5. Around half of Victoria’s sex workers are migrant workers, many of whom come from non-English speaking backgrounds6. In almost all cases, sex work involves close physical contact between client and sex worker. Physical distancing is simply not possible during a sex work appointment.
1 Victorian State Government, First novel coronavirus case in Victoria (25 January, 2020) Health.vic
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 8 Victoria’s sex industry hasn’t always had a close or harmonious relationship with the Victorian government. This is due to a number of factors, including but not limited to: 1. longstanding, overly complex legislation regulating sex work, that both authorities and sex workers struggle to understand7 2. the large number of government agencies responsible for regulating the sex industry – Victoria Police, Australian Federal Police, Australian Taxation Office, local government, WorkSafe Victoria, Consumer Affairs Victoria (hereafter referred to as CAV), Business Licensing Authority and DHHS 3. lack of communication between the above regulatory bodies and a general lack of understanding on the part of these bodies about the sex industry7 4. that the majority of the industry operates underground, outside the law8 5. historical allegations of police brutality against sex workers 6. governments relying on criminal laws and heavy-handed approaches to enforcing responses to pandemics, public health crises and matters relating to sexual health9
Public health communications directed at people working in the sex industry need to take into consideration these historical factors and sex workers’ resulting mistrust of government. The National COVID-19 Health and Research Advisory Committee identifies this lack of trust in vulnerable groups as a key barrier in accessing services such as COVID-19 testing10.
7. Key Populations On 21 May, 2020, prior to Victoria’ second wave of coronavirus, The National COVID-19 Health and Research Advisory Committee published a report Risks of resurgence of COVID-19 in Australia, in which ‘some population groups and occupational settings at high risk of transmission of infection and/or low participation in testing were identified.’11
The report identified ‘settings and populations that were identified as at increased risk, from the general community, from incursion and/or of undetected transmission of COVID-19.’12
7 Drugs and Crime Prevention Committee, Parliament of Victoria, Inquiry into People Trafficking for Sex Work (2010) 136. 8 In 2020, there are 88 legal brothels in Victoria, and Victoria Police estimate at least 500 illegal brothels. 9 Sex Work Act 1994 (Vic) ss 18A-20A 10 National COVID-19 Health and Research Advisory Committee, Australian Health Protection Principal Committee (AHPPC), Risks of Resurgence of COVID-19 in Australia (2020) Attachment 3
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 9 Some people working in Victoria’s sex industry are likely to be included in 10 of the following 21 key populations outlined in Attachment 2 of the report: c. Casual and seasonal workers f. International students h. Low or disadvantaged socio-economic groups l. Substance misuse m. Temporary visa holders n. Migrant groups o. Refugees and asylum seekers p. Homeless or sleeping rough s. International travellers and backpackers u. Other occupational groups which have multiple community contacts, perform activities requiring proximity and/or work in high-risk settings or with aerosol generating procedures
Recommendation 1
Identify Victorian sex industry businesses as occupational settings potentially at low risk of participation in testing.
Recommendation 2
COVID-19 communication efforts to encourage testing and adherence to public health measures in order to prevent and limit outbreaks of disease should be developed and disseminated in conjunction with sex industry community and industry organisations.
In Victoria such organisations include: a. Behind Closed Doors (Victorian sex worker radio show) b. Eros (association for sex industry businesses, including brothels and escort agencies) c. RhED (government funded community health program for Victoria’s sex industry) d. Salome’s Circle (group representing Victorian female strippers) e. Scarlet Alliance (national sex worker association) f. Sex Work Law Reform Victoria (Victorian sex worker organisation) g. Vixen Collective (Victorian sex worker organisation) h. Working Man (Victoria male sex worker organisation)
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 10
8. Who Communicates Coronavirus Directions to the Sex Industry?
An ongoing issue for Victoria’s sex industry has been much confusion about how to properly understand the frequently changing Directions issued under the Public Health and Wellbeing Act 2008 (Vic). While all industries have had to respond to frequently changing Directions and their inherent complexity, the sex industry faces additional barriers, including:
1. the large number of regulatory bodies involved
2. sex industry terms in legislation being either poorly defined or not defined at all
3. different understandings of the meaning of sex industry terminology on the part of the sex industry and government respectively.
9. Regulatory Bodies
The sex industry is the only industry in Victoria largely regulated by criminal laws enforced by Victoria Police. The Business Licensing Authority (BLA) issues licenses to sex industry businesses and works closely with Consumer Affairs Victoria13. It also registers individual self-employed sex workers (private workers). The BLA’s administration of the Sex Work Act requires the authority to communicate at least annually with all registered sex workers and licensed sex industry business owners/managers for the purpose of renewing/updating licences/registration. The BLA has the contact details of all individual sex workers and sex industry businesses operating in the licensed/legal part of the sex industry. This means the BLA has the means to communicate and clarify public health and Directions to legally operating sex industry businesses and individuals.
The unlicensed/unregistered part of the industry operates illegally and is outside the BLA’s sphere of regulation.
The three regulatory bodies sex workers have turned to for clarification on coronavirus Directions are:
1. DHHS (who issues, publishes, explains the Directions)
2. Consumer Affairs Victoria/BLA (who administer licensing and registration of sex industry businesses and individual private sex workers)14
3. Victoria Police (who, prior to the coronavirus pandemic, enforce a large number of sex industry regulations. During the current declaration of state of emergency Victoria Police are also enforcing Public Health and Wellbeing Directions)
13 Consumer Affairs Victoria, Business Licensing Authority (17 October, 2019) Consumer Affairs Victoria
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 11 10. Legal Definitions Impede Clear Communication of Directions
Victoria’s sex industry can be broadly divided into four sectors. Coronavirus Directions apply to three of these – brothels, escort agencies and private sex workers.
Both brothels and escort agencies are clearly defined in the Sex Work Act 1994 (Vic) (the ‘Act’)15, and the Directions16 make it clear such terms used rely on the legal definitions contained in the Act. However, while private sex workers are described (using the term ‘small owner-operated businesses’) under section 23 of the Act, they are not defined in the Act itself nor in any other legislation.
Instead, private sex workers are legally defined as a one-person brothel if they provide a single incall service to a single client. Equally, they are legally classified as a one-person escort agency if they provide a single outcall service to a single client. Many private sex workers conduct both outcall and incall visits. However, we are not aware of any private sex workers who would think of themselves as both a brothel and an escort agency. And yet, technically, the law does.
This divide between how private sex workers define and see themselves and how the law recognises them presents the single greatest barrier to
effectively communicating coronavirus Directions to the sex industry in Victoria.
Incall service
The provision of commercial sexual services at a sex worker’s private residence
Outcall service
The provision of commercial sexual services at the home or hotel of a client of a private (self- employed) sex worker
15 Sex Work Act 1994 (Vic) (the ‘Act’) s 3. 16 Restricted Activity Directions (No 7) ss 16(5) and 16(12). Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 12
Source: Consumer Affairs Victoria
In Victoria, most sex workers are self-employed independent operators (often referred to as private escorts)17. Additionally, this is the fastest growing sector of the sex industry. Despite this, this sector is not defined in law and is omitted from all coronavirus Directions communications. This has resulted in confusion and frustration amongst private sex workers. Poor communication of these Directions may have resulted in avoidable breaches of the Directions within the sex industry.
11. What is a Massage Parlour?
‘Massage parlour’ is generally understood by people in the sex industry to refer to an unlicensed/illegal brothel – a business presenting as a massage shop but in practice providing sexual services (‘extras’ and ‘happy endings’), at prices above the standard massage prices.
However, the Victorian Government’s use of the term ‘massage parlour’ on the DHHS Information About Restrictions webpages seems to refer to massage businesses that are not sexual in nature, ie, businesses providing non-sexual massage only. Our organisation received feedback questioning the government’s intention with the use of this terminology. Both massage therapists and sex workers alike were confused by the use of this term.
17 Linda Selvey, et al., Summary Report to the Western Australian Department of Health and Human Services, Western Australian Law and Sex Worker Health (LASH) Study. A Summary Report to the Western Australian Department of Health (2017) School of Public Health Curtin University Table 6 Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 13 Recommendation 3
The Victorian government to cease using the term ‘massage parlour’ in explanations of coronavirus Directions.
Alternative terms could be ‘non-sexual massage business’ or ‘non-sexual massage therapy business’.
12. March 2020 – First Directions
Since March 2020, the various Directions have changed and many types of businesses have been allowed to open, then ordered to close. The DHHS website clarifies, in plain English, which types of businesses must remain closed and which may remain open via its ‘Information about restrictions’ series of webpages18. The website currently has a number of webpages for categories of businesses, including:
1. Entertainment and Culture (includes nightclubs, licensed gambling venues) 2. Shopping and Retail and Personal Services (brothels and strip clubs classified as Personal Services) 3. Sport and Exercise 4. Community Services It is not clear which of these categories brothels, escort agencies and private sex workers fall under. Close inspection of all four webpages reveals “Shopping and Retail and Personal Services” as the only webpage that refers to sex industry businesses19.
Prior to 9 July, 2020, both the Directions and the DHHS ‘Information about restrictions’ provided a clear understanding when referring to brothels, escort agencies, strip clubs, sex on premises venues and massage parlours. The Directions, prior to 9 July, 2020, made it clear which of these types of businesses were allowed to remain open, and which had to remain closed.
However, during this time, the status of private sex workers was not clarified by DHHS (private sex workers are not defined in law). For a few days in April 2020, CAV provided a clarification of the status of private sex workers, but referred to them using the legal description ‘small owner-operated businesses20.’ Both before and after this two-day period, CAV did not publicly clarify the status of private sex workers.
18 Victorian State Government, First Novel Coronavirus Case in Victoria (25 January, 2020) Health.vic
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 14 13. May 2020 – The Chief Health Officer and Sex Work
On 12 May, 2020, during this Inquiry’s hearings, Committee member David Limbrick questioned Victoria’s Chief Health Officer, Professor Brett Sutton, about whether the sex worker community would be given clarification in relation to coronavirus Directions21.
Mr LIMBRICK: Thank you, Professor Sutton, for your answer. That does clarify it. With regard to the bundling of some of these restrictions, I note that in the Federal Government’s staged plan—presumably we will be having something based on that—one of the things that was bundled was brothels. In fact the majority of sex workers in Victoria do not work in brothels and the activities might have differing risk profiles. Will consideration and clarification be given to that community once we reach these different levels of easing?
Prof. SUTTON: Yes. As for all specific industries, all specific settings, we need to give consideration to them over time, and part of the principle of the directions in Victoria was that of collaboration—another one of the key principles in the Public Health and Wellbeing Act. So we really have taken guidance from national cabinet decision-making and tried to effect that as much as possible. At times we have been more precautionary, perhaps, than some other jurisdictions, but we really have tried to reflect the national cabinet decision-making in doing as they recommended for state and territory legislation.
Recommendation 4
The Victorian government to collaborate and consult sex worker and sex industry groups when developing, implementing and communicating future Directions aimed at halting the spread of the Novel Coronavirus 2019 issued under the Public Health and Wellbeing Act 2008 (Vic).
14. July 2020 – Lack of Clarity re Directions
Since 9 July, 2020, neither DHHS or CAV have referred to either escort agencies or private sex workers in their explanations of Directions and sex work. As such, since 9 July, 2020, the Victorian government has not publicly clarified whether these two sectors of the sex industry must remain closed. To date, neither sex worker organisation RhED nor Scarlet Alliance have published a clarification on the 9 July, 2020 Directions. Sex Work Law Reform Victoria published a clarification on 11 July, 2020. Vixen Collective, a Victorian sex worker group, published their clarification twelve days later. The above sequence of events (and non-events) speaks to a lack of confidence in and understanding of the government’s Directions.
The Directions issued on 9 July, 2020 ran for dozens of pages and referred to at least two other Acts. With the help of legal professionals, two members of our organisation (SWLRV) – both with legal
21 Evidence to Public Accounts and Estimates Committee, Parliament of Victoria, Melbourne, 12 May 2020, 16 (David Limbrick, Liberal Democrats Minister for Parliament for South East Metropolitan).
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 15 training – took around two hours to closely examine the Directions in order to identify which sectors of the sex industry were allowed to operate under the new Directions.
Less than a week after 9 July, on 14 July 2020, Victorian sex worker group Vixen Collective succinctly, if undiplomatically, summed up the frustration and confusion that sex workers felt via a series of Tweets22’. Notice the reference to ongoing confusion as to the status of private sex workers:
“What the f*** is happening with Covid-19 restrictions in Victoria?' - a thread
Important: DHHS have updated their website to state “escort services” are currently permitted. It is not clear what “escort services” refers to and if it refers to private sex work.”
Vixen Collective tweet, 14 July, 2020
Recommendation 5
All future Directions aimed at halting the spread of the Novel Coronavirus 2019 issued under the Public Health and Wellbeing Act 2008 (Vic) should explicitly refer to the status of both brothels and escort agencies.
Recommendation 6
The Victorian DHHS website to explain, in plain English, whether escort agencies and brothels can remain open under any future Directions aimed at halting the spread of the Novel Coronavirus 2019 issued under the Public Health and Wellbeing Act 2008 (Vic).
The single question all sex workers want the answer to is: “Am I allowed to work?”
22 See @VixenCollective (Vixen Collective) (Twitter, 14 June 2020, 9:08pm AEST)
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 16 15. Who is Responsible for Communicating to Sex Workers?
Victorian DHHS issues Directions, Victoria Police enforces them, and the BLA regulates the legal portion of the sex industry. Between March and 20 July, 2020, it was not at all clear who had the responsibility of publicly clarifying the status of the various sex industry sectors under Directions.
On 20 July, 2020, four months after the first Direction was issued, our organisation received written clarification from DHHS that the BLA would be responsible for issuing public clarifications, with all coronavirus/sex industry inquiries to be directed to the BLA. At the time of writing, the Consumer Affairs Victoria website (which the BLA uses to communicate) refers to brothels, strip clubs, sex on premises venues, but does not refer to either escort agencies or private sex workers:
‘A person who owns, controls or operates a brothel or sex-on-premises venue, or sexually explicit entertainment venue in a Stay at Home restricted area must not operate that facility from 11.59pm on 8 July 2020.23’
Correspondence with Victoria Police prior to July, 2020 directed us to DHHS for clarification; CAV had also directed us to DHHS. However, when DHHS did provide clarification of the Directions, these were contained in private emails sent to an individual, rather than a public clarification on a website.
Recommendation 7
Victorian DHHS to appoint a role within the Department to act as a single point of contact for all sex industry inquiries.
Prior, during and post- COVID-19, DHHS has a regulatory role in relation to public health measures, safe sex practices and managing sexually transmitted infections. It therefore necessary to have a single point of contact within DHSS for all inquiries relating to the sex industry, during this pandemic and beyond.
Recommendation 8
The Victorian Government should prioritise providing public clarifications on the meaning and interpretation of Directions, rather than providing private clarifications via correspondence with individuals.
23 Consumer Affairs Victoria, Rules for Restricted Areas – Metropolitan Melbourne and Mitchell Shire (30 July 2020) Consumer Affairs Victoria
16. The Role of the Business Licensing Authority
The Business Licensing Authority (BLA) is responsible for administering the licensing and registration of sex industry businesses and sex workers in Victoria. Everyone who operates legally in the Victorian sex industry knows of the BLA and will have received at least annual correspondence from them in the form of licensing/registration renewal forms.
The BLA already assists individual private sex workers to access sex worker friendly community health services by providing brochures from RhED (community health centre) to all newly registered private sex workers. Throughout this pandemic, the BLA has had the potential to, and indeed could be considered to be responsible for, playing a constructive and helpful role in communicating clarifications to all the licensed/registered people working in the sex industry.
To date, we are only aware of one private sex worker who received an email from the BLA clarifying the status of private sex workers under the new Directions issued on 9 July 2020. Many other private sex workers who are registered with the BLA, including members of the board of this organisation, have received no correspondence from the BLA about coronavirus. On 15 July, 2020, the BLA respectfully declined our request to meet to discuss ways to clarify and communicate coronavirus Directions to the sex industry.
In the absence of such public clarification, people in the sex industry have become confused and frustrated.
“I was left to manage COVID 19 on my own. I kept asking the government, “Are we allowed to operate?” and they kept responding, “That’s a good question”. When escort agencies were allowed to operate, no one would tell me how I can safely look after my staff, and manage the virus. I wanted health advice about harm minimisation.
I reached out to DHHS on numerous occasions. I explained that I have the customer base and reach, but never received a reply. I had to ring around to find out whether our business is still allowed to operate. Eventually, I was directed to a NSW sex worker group’s website. In NSW! The communication from the government has been shocking. The BLA only clarified the status of escort agencies once we began demanding refunds for our $12,000 annual licence fees.”
Spokesperson from Paramour of Collins St (escort agency)
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 18 Recommendation 9
Each time coronavirus Directions change, the Business Licensing Authority is to email a clarification to all sex worker service providers (licensees), sex work brothel managers and sex work providers (exempt).
Such clarifications should use both legal terminology (eg. Sex work providers (exempt)) as well as standard sex industry terminology (eg. private sex worker). The clarifications should identify how each sector of the sex industry (including private sex work) is affected by each new Direction. The communications should clearly and simply state which sectors of the sex industry are permitted to operate and which are not. Despite not being defined in law, these communications should prioritise stating, in plain English, the status of private sex workers.
Recommendation 10
Each time coronavirus Directions change, the Business Licensing Authority is to publish on the Consumer Affairs Victoria website, a clarification as to which sectors of the sex industry are permitted to operate and which are not. Any such clarification must refer to the status of private sex workers.
It is important that such clarifications occur in a timely manner, preferably immediately once the Directions are changed. It is also important such public communications are translated into the three most common languages spoken by migrant sex workers24.
Recommendation 11
All public communications relating to COVID-19 and the sex industry to be translated into Chinese, Thai and Korean.
Recommendation 12
The Minister for Consumer Affairs to reinstate the Sex Work Ministerial Advisory Committee as required under s 67 of the Sex Work Act 1994 (Vic).
This committee met regularly until 2014, conducting research and authoring reports, including recommendations to the Victorian Government. Representatives from the BLA and various sex industry groups were members of the Committee. The committee provided opportunities for sex workers and others involved with the sex industry to express their views directly to the government. Reinstatement of this Committee is one way to improve mutual understanding between sex workers and the various regulatory bodies.
24 Inner South Community Health, Migrant and Multicultural Sex Worker Report 2012 (26 March 2013) Inner South Community Health, 3.1 Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic Inquiry into the Victorian Government's Response to the COVID-19 Pandemic Submission no. 58 19 17. The Future
The COVID-19 pandemic in Victoria has proven to be unpredictable and difficult to contain or eliminate. As conditions change on the ground, public health advice and Directions will naturally need to change. It is inevitable that resources will be stretched, and that Directions issued may not be able to take into consideration all the nuances to be found in every occupation and industry.
The Victorian Government has considered the various sex industry sectors that differ from one another and on the whole successfully introduced Directions reflecting these differences and nuances. And it has managed to do this despite incredibly complex and unfit-for-purpose sex industry laws that are cumbersome at the best of times. The Victorian Government is currently reviewing Victoria’s sex industry laws and no doubt many of the issues raised here will be addressed in that Review. At the time of writing, it appears as though this pandemic will necessitate some form of Directions for many months to come.
An ongoing challenge will be to effectively communicate Directions to the sex industry in a timely manner using terminology that is meaningful to those who work in the sex industry.
Sex Work Law Reform Victoria Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic