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The deregulation of market sex

ByRobert Silverman

The Author

Robert Silverman is the pen name of a journalist and academic with extensive Australian and international experience in teaching, researching and writing on politics and history.

Daniel Andrews ‘permanent pandemic legislation’ of late last year and the recently enacted Sex Worker Decriminalisation Bill (2021), passed in February this year, were given scant attention by the mainstream media. Yet these bills have had and will continue to have a significant effect on the life of Victorians. Many would be unaware of and even astounded by the almost complete demolition of safeguards built around the sex industry in the Sex Work Act of 1994.

Just as the pandemic legislation gave the Victorian premier unprecedented powers, as great as if not greater than emergency law, so the new sex worker bill deregulates the sex industry. While this legislation sets out to end ‘industry-specific discrimination’ and treat sex work like any other work, it discriminates against all other industries in the state. They are subjected to strict regulation in various forms, whereas the sex industry has been mainly left to regulate itself. 

The new bill removes virtually all restraints on sex work, including the mandatory testing of sex workers for blood-borne viruses (such as HIV) or sexually transmitted infections (STIs). The legislation allows them to ply their trade even if they are infected. According to the HIV lobby, advances in treatment mean that those affected can have safe sex without passing the virus on – if they take antiretroviral therapy. However, there is no regulation to ensure they do, and it cannot be assumed that all will. 

(Pictured: Fiona Patten, head of the Reason Party. Source: Fiona Patten)

The legislation was the fruit of a parliamentary inquiry chaired by Fiona Patten, head of the Reason Party, herself a former sex worker. Whether she was the right choice to head the parliamentary inquiry rather than a neutral figure is the first question to be asked. The Coalition Against Trafficking in Women Australia (CATWA) highlights the obvious conflict of interest in Patten’s appointment, given her longstanding ties to groups that have a vested interest in the deregulation of the sex industry.

After 14 days of taking submissions, the committee’s report was never made public, with survivors of prostitution, according to CATWA, excluded from telling their stories.

Another group, the Women’s Forum, expressed its “collective horror” at the legislation. Julie Bindel, a researcher who has studied the effects of prostitution in many countries, says in an article quoted by Women’s Forum that decriminalisation “reframes prostitution as a straightforward commercial transaction”, which hides the truth about the harm and abuse at the heart of the global sex trade.” She says deregulation also serves the interests of brothel owners and pimps, as the opponents of this legislation describe them.

Some, if not many, sex workers have only resorted to sex work to pay their living costs. Some, if not many, come from a dysfunctional background involving family violence, sexual abuse, and drug dependency. Their work options are limited, yet there is nothing in this legislation to help them escape the sex work trap in which they find themselves.

Ms Patten says the legislation will treat sex work “the same as any other work.” However, sex work is not the same as any other work. No job is ever just the same as other work. Sex work is not like changing a tyre down at the local garage or calling in a plumber to fix a blocked drain. Sex work has significant social and health implications for the whole of society. If sex workers no longer have to engage in safe sex, to remove “industry-specific discrimination,” surely workers should not have to wear hard hats on site, and food processors should not have to wear protective gloves and hair nets.

(Photo: Nathan Dumlao)

Sex work is being decriminalised in two stages: the first was enacted in May 2022, and the second is expected by December 2023, when the repealed Sex Work Act 1994 will pass into history.

The legislation exempts “small owner-operator sex work businesses” from needing a licence or having to register with the Business Licencing Authority. Licencing fees for more commercial enterprises were halved by 50 per cent by July this year and will be cut by a further 25 per cent by July next year. All other industries in the state must pay the full whack in licence fees. So why is the sex industry being favoured? 

The bill repeals the definitions of brothel and brothel proprietor, escort agency, proprietor, sex worker and sexual services as given in section 3 of the Public Health and Wellbeing Act 2008. What they are to be called now it does not say .

The new legislation must mostly be read by looking at the old legislation to see what has been removed. For example, sections 12 and 13 of the Sex Work Act 1994 have been repealed. Section 12 made it an offence for sex workers- and section 13 for their clients- to “recklessly loiter” at any time in or near a place of worship, hospitals, schools, child-care centres, or public places regularly frequented by children (such as parks and playgrounds).

Under section 36 (b) of the new bill, sex workers and potential customers are prohibited from loitering near these locations between 6am to 7pm and “at any time” on prescribed days (presumably public holidays). The bill stipulates nothing about hot weather when families are frequently out in city parks and playgrounds after 7pm.

Section 18a (safe sex practices) of the 1994 legislation stated that “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.” Both client and worker must also take all reasonable steps to minimise the risk of STIs. This section has now been repealed in the new legislation.

Section 19 of the 1994 Sex Act stated that the provider or manager of a brothel or escort agency must not allow a sex worker to offer their services when he or she is aware the sex worker has been infected with an STI. Unless the provider or manager can provide evidence to the contrary, it would be assumed they did know and thus would be liable to penalties. Section 20 stated that the sex worker must not work while infected with an STI. Again, unless he or she can prove otherwise, presuming the sex worker knew of the infection. These two sections have now been repealed.

Section 18 of the Summary Offences Act (1966) stated that it is an offence while in a motor vehicle to use words or gestures within the hearing of people in a public place likely to offend a reasonable person. Presumably, this would apply to ‘kerb-crawling’ by men accosting women from their cars: this section has also been repealed.  

Following section 38b of the new bill is a new section (38c) which has been inserted under the heading ‘Offence to allow a child on premises used for commercial sexual services.’ This section states that “a person who carries on a business that provides commercial sexual services or who assists in the management of that business must not allow a child who is over 18 months of age to enter or remain on the premises at which that business is carried on, unless those premises are primarily used as residential premises.” 

This provision is intended to ensure that “it is not an offence for sex workers operating home businesses to allow their own children to reside in their homes.” In other words, while the child is watching television in the sitting room, mother or father can be satisfying as many clients as they like elsewhere in the home. 

What would child psychologists have to say about this, given the level of crime and violent treatment of women historically associated with sex work?

Owners of flats, houses, hotels, boarding houses etc. no longer have the right to refuse tenancy to men or women engaged in sex work and local councils have no powers to override the legislation. Accommodation can no longer be refused to sex workers on the grounds of their trade: they can only be ejected for the reasons that apply to all renters, such as damage to property and the non-payment of rent.   

For moral reasons alone, many Victorians would agree not to want to rent their property to a sex worker knowing this new legislation, and there is no requirement that such individuals should disclose their occupation. However, once sex workers are inside the apartment or house, as long as they pay the rent and don’t trash the place, it could be impossible for the owner to remove them.

The bill allows a sex provider to set up a business anywhere there are shops as if sex is no different from any other commodity you might buy. However, even if not to Fiona Patten, it is not just a commodity like the fruit and vegetables you might pick up at the supermarket.

(Photo: Mathilde Langevin)

‘Industry-specific discrimination’ is needed to protect sex workers, their customers and society from the criminality historically associated with the sex trade, including violence against women and sex trafficking. Advocates of deregulation argue that criminalisation violates sex workers’ human rights, but other human rights are involved here, too.

The new act inserts a new section into the Crimes Act (1958) allowing a sex worker to be “rewarded” with the supply of a drug dependency “within the meaning of the Drugs, Poisons and Controlled Substances Act (1981)”, which made it a criminal offence for someone to use or attempt to use a drug of dependency without a lawful excuse. At this point, it might be worth pointing out that the use of methylamphetamine (ice), heroin and ketamine in Melbourne is the  highest in any Australian city, with cocaine use in Victoria doubling in recent years. According to the National Drug and Alcohol Research Centre, 5.2 per cent, more than one in 20, Victorians, said they had used cocaine in 2019-20 – doubling the figure from 2016-17 .

These changes to sex industry legislation are evidently the payoff to Fiona Patten for providing one of the crucial votes needed to get Andrews’ permanent pandemic legislation across the line. However, she subsequently had to suffer the disappointment of the Reason Party being placed below the Animal Justice Party and the Liberal Democrats in federal ALP preferences for the May federal elections. She said she would now reconsider her support for the Andrews government in the state elections on November 26, where we saw the Andrews government win another term. Patten expressed, “I am taking this personally. It does make me question the relationship I thought we had.”

In the eyes of its feminist opponents, the new legislation strengthens the hold of men over women’s bodies and is regressive, not progressive, as it has been touted. Furthermore, no other industry is allowed to regulate itself. So just, why has the sex industry been given this privilege? Time may provide us with these baffling answers.



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