Access the latest updates on Victorian sex work legislation/regulations and other legal info for Victoria….
UNDERSTANDING CONSUMER LEGISLATION AMENDMENT BILL 2019 (CLAB 2019)
The ‘Consumer Legislation Amendment Bill 2019’ (CLAB 2019) contains amendments to the ‘Sex Work Act 1994’. CLAB 2019 is now before the Legislative Council (the Upper House of Victorian Parliament). The amendments address the fact the ‘exempt register’, containing information on private escorts in Victoria, held under section 24 of the ‘Sex Work Act 1994’, was breached via Freedom of Information (FOI) process and currently remains able to be accessed in this way. When passed, the amendments contained in CLAB 2019, will prevent access to sex workers’ data contained on the ‘exempt register’ via FOI in the future.
Information that Vixen Collective has previously provided on this matter on this can be found under the heading ‘Breach of ‘exempt register’ risks sex workers safety and Consumer Legislation Amendment Bill 2019 (CLAB 2019)’, here:
Sex worker organisations have long opposed sex workers being made to register, the fact that this information is held by regulators/governments, and have called for the removal of sex worker registers as well as the removal of all information held on such registers, as part of campaigning for the full decriminalisation of sex work. But while registers still exist, it is the duty of government to ensure this information is secure.
Some concerns have been raised about wording changes relating to police immunity in CLAB 2019 and over access to individual sex workers’ data on the register in the future, we would like to provide feedback on these issues now.
Vixen Collective has directly contacted government seeking clarification on the legislation, have sought independent expert legal advice on these matters and have worked with Scarlet Alliance, Australian Sex Workers Association, to coordinate providing information back to community. It is based on this feedback, advice and on consultation within our own community that we respond.
Feedback from Victorian Government
The Department of Justice and Community Safety (DJCS) has corresponded with Vixen Collective, on behalf of Hon Minister Marlene Kairouz (Minister for Consumer Affairs) on the 21st of November to indicate that:
- Changes made are not intended as an increase of police powers but are “changes aimed at increasing security of the exempt register”.
- The new sub-section, 87 (2A) does not protect police officers if they are found to be acting outside of their legal duties.
- Sex workers on the ‘exempt register’ who wish to access their own data remain able to do so via the Business Licensing Authority (BLA).
The full statement from DJCS is attached as a PDF here:.
Independent Assessment of Amendments
Independent legal advice we have received regarding the amendments is that they likely provide an expansion of secrecy requirements in relation to the recording or disclosure of information within the ‘exempt register’.
The amendments now also prevent the recording or divulging of information regardless of whether or not that information directly concerns a person.
Put simply, the secrecy provisions have been expanded and this change limits risks that sex workers can be identified, even indirectly.
Under the current ‘Sex Work Act 1994’, section 88 (Immunity), already provides very broad immunity for police officers, this is not altered by the amendments in CLAB 2019. In certain circumstances the Crown/State of Victoria is liable for a police officer’s conduct that has caused loss/damage.
Put simply, police already have immunity under the current Act, and they have a lot of it – it’s hard to see how the amendments could really give them much more than they already have.
The new section 87 (2A), contains a section of text that states:
“A police officer does not commit an offence against subsection (2) if the police officer records or divulges to any person any information that is in the register referred to in section 24(2), whether or not that information concerns a person, if the recording or divulging is carried out in the performance of duties by the police officer under or in connection with any Act.”.
This text has made some people concerned.
What is key here is that police have to show that they are simultaneously acting “in the performance of their duties” and that this action is “under or in connection with any Act”, meaning an Act in law.
The ‘Sex Work Act 1994’ defines the ‘exempt register’ and specifies the parties who have lawful access. Acts that have particular relevance here are the ‘Victoria Police Act 2013’, which defines some of a police officer’s duties and powers, and the ‘Charter of Human Rights and Responsibilities Act 2006’ which speaks to decisions of public authorities that fail to give proper consideration to relevant human rights. The actions of police remain governed by these Acts and other laws.
This can be seen as a broadening of the ability of police officers to record or divulge exempt sex work service provider register information, however not without the restrictions outlined above.
Put simply, the police have powers under law but there also are restrictions on these powers under the law. The amendments do not provide protection to police if they reveal information from the ‘exempt register’ where it isn’t something they were meant to be doing as part of their job. In fact, for revealing information to be lawful it has to be something they were meant to be doing as part of their job AND also permitted under an Act of law.
Freedom of Information (FOI) access/access to sex workers own data:
As already indicated in Vixen Collective’s prior statement on this matter, feedback from Victorian sex workers has clearly indicated that workers do not wish members of the public to be able to access information from the ‘exempt register’ via FOI and the removal of this access is seen as a positive development.
The amendments do not alter the way in which sex workers register, amend information or interact with their own data that is held on the ‘exempt register’.
Sex workers provide their data on registration to the Business Licensing Authority (BLA) and can check/amend this data during annual returns, or if wanting to do this inside the annual return period can contact the BLA on 1300 135 452 (select option 3) or make a request via online form on the BLA website:
Aside from removing the ability of members of the public to access sex workers’ data held on the ‘exempt register’ the amendments to the ‘Sex Work Act 1994’ contained in CLAB 2019 have made no restriction on the ability to access information via FOI processes in Victoria.
We would note in closing that there is a strong history here in Victoria and around Australia of peer sex worker organising pushing back against oppressive laws and policies that impact our community. This history is based on utilising the knowledge within local sex worker community, often knowledge that spans back over decades, whilst also always recognising the need to consult widely and continually within community so that we represent the diversity of our community and ensure that the most marginalised in community remain heard.
We thank Victorian sex workers who have contacted us regarding this matter and also sex workers throughout Australia who have got in touch to learn more about this issue and to reach out to offer us support.
*As always, we note that Vixen Collective is a voluntary organisation and ask people to be patient in our response times as we prioritise direct peer support issues and (as you can imagine) we are busier than usual at the moment dealing with this issue (among many others).
Vixen Collective has frequently called on government, and is on record in doing so, to address a history of barriers to police and access to justice for Victorian sex worker community.
For those interested in learning more about these issues we recommend the reports ‘The Role of Victims of Crime in the Criminal Trial Process – Victorian Law Reform Commission, Feb 2016’, ‘Draft Sex Work Regulations 2016 – Consumer Affairs Victoria, Feb 2016’, ‘Access to Justice Review – Department of Justice and Regulation, March 2016’, all of which can be found here:
BREACH OF ‘EXEMPT REGISTER’ RISKS SEX WORKERS’ SAFETY & CONSUMER LEGISLATION AMENDMENT BILL 2019 (CLAB 2019)
In September 2019 Vixen Collective and Scarlet Alliance issued a joint public statement ‘Inaccurate Legal Information in Victoria Risks Sex Workers Safety’ which can be accessed on Vixen Collective’s website on a previous post on this page. This statement indicated that a ‘law guide’ had been published online in July 2019 by the group ‘Sex Work Law Reform Victoria’ (SWLRV) that contained inaccurate information in relation to sex work laws in Victoria. This statement called on Star Health (who manage local sex industry health service RhED) to remove the ‘law guide’ and institute policy that prevents this type of incident in the future as it is a risk to community safety. When dealing with the matter of the ‘law guide’ It was discovered that a person involved in SWLRV had, through a Freedom of Information (FOI) request, accessed information from the ‘exempt register’ that contains information on private sex workers in Victoria.
Sex worker organisations have consistently advocated that registration should be abolished as part of the full decriminalisation of sex work and that information held on such registers should be expunged – i.e. removed completely. Registration does not benefit sex workers but rather stigmatises our community, is a method of surveillance and monitoring that is not applied to other communities, can provide a basis for discrimination against sex workers, creates substantial risk for workers that do not register, and is a barrier to workers effectively engaging with police when we are victims of or witnesses to crime.
The ‘exempt register’ and who can access the information it holds is a significant concern to Victorian sex workers, with Vixen Collective receiving frequent inquiries from workers about the register itself and who has access to it.
When we were aware that the register had been accessed via FOI this created concerns that this had happened at all, that it had happened without either Vixen Collective or Scarlet Alliance being made aware and that it created a risk that this could occur again in the future.
A decision was taken to advise sex workers of this incident, via sex worker only spaces, in September. This information was not made available in public spaces at that time because of the risk that a precedent had now been set allowing members of the public to access information from the ‘exempt register’ via FOI and that this might create a risk of further breaches.
Vixen Collective has received extensive feedback from Victorian sex workers on this matter and this feedback, as well as previous consultation with community, has informed our advocacy on this issue.
ACTIONS TAKEN BY GOVERNMENT
As part of the Consumer Legislation Amendment Bill 2019 (CLAB 2019) amendments were proposed to the ‘Sex Work Act 1994’. Vixen Collective was not consulted directly prior to CLAB 2019 being drafted or introduced. These amendments include:
Ability to access the ‘exempt register’ via FOI:
We see the removal of the ability to access information from the ‘exempt register’ via FOI as a positive development and feedback from Victorian sex workers has clearly indicated that workers do not wish members of the public to be able to access information via the ‘exempt register’.
We note that the group SWLRV has asserted that the ability to access the ‘exempt register’ via FOI can in some way be used to “understand where support needs to be directed” in relation to sex worker community. In relation to this statement we would strongly respond that sex worker organisations have a long history of consulting directly within our own community and do not seek to utilise oppressive government mechanisms that that our community has long opposed and that we are actively seeking to abolish. We take this position because using these mechanisms in this way would be against the principles of ongoing sex worker advocacy but also because it is not an effective way of gathering information on our community. The most effective way of gathering information on our community is for peer organisations to engage directly with our community.
SWLRV has also asserted that the removal of the ability to access information from the ‘exempt register’ via FOI limits sex workers’ access to our own data – this is not the case. The removal of access via FOI does not change the way sex workers register, amend information or interact with the ‘exempt register’.
FOI processes are not a mechanism for sex workers accessing information from the ‘exempt register’ – they are an ongoing risk to sex workers data security that has been created and without the remedy within CLAB 2019 could be used in the future by other parties that could include researchers, media or even anti sex work groups.
Amendments not relating to FOI, including police powers:
As indicated above, Vixen Collective was not consulted prior to CLAB 2019 being drafted or introduced. Vixen Collective as the recognised representative body for sex workers in Victoria, in consultation with Scarlet Alliance (Australian Sex Workers Association), has contacted relevant members of Victorian Government regarding issues with CLAB 2019 that are of concern and will be able to provide feedback on this in due course.
As we have throughout this matter, we remain keenly interested to hear from Victorian sex workers regarding this issue and workers are able to contact us via email on: email@example.com
Or can contact Scarlet Alliance via: firstname.lastname@example.org
We do note that we are a voluntary organisation and ask people to be patient in our response times as we prioritise direct peer support issues and (as you can imagine) we are busier than usual at the moment dealing with this issue (among many others).
STATEMENT ON – BREACH OF ‘EXEMPT REGISTER’ RISKS SEX WORKERS’ SAFETY[Distributed to peer spaces on Sept 13th 2019]
..we have recently found out that an individual involved in SWLRV, who is also a volunteer for RhED, through a Freedom of Information request, was issued information on the ‘exempt register’ held under section 24 of the Sex Work Act. This is the register held by Consumer Affairs Victoria (CAV) that contains information on registered private sex workers in Victoria.
The information given out did not include identifying information on sex workers but was ‘aggregate data’ (summary data), which is total numbers of workers grouped into sets of post code locations.
We were not aware at the time this occurred because neither Vixen Collective or Scarlet Alliance were notified by any of the government departments involved and we have raised concerns about this failure and the fact that access was permitted.
The individual making the Freedom of Information request stated this information was sought for the purposes of “research he is undertaking into the impact the SW Act has had on sex workers”. However, there was a marked lack of transparency around this research — no information was provided as to any organisations associated with this research (e.g. a university or private company), the parameters of the research, or whether ethical approval was obtained for this research (e.g. from a university ethics committee).
It is of concern that any information at all was accessed from the ‘exempt register’, as this is outside the parameters set out in the ‘Sex Work Act 1994’ on who may access the ‘exempt register’. It is of concern that this happened without Vixen Collective and Scarlet Alliance being notified first, as we would have objected very strongly.
We note that access was opposed by Victoria Police as indicated by the testimony of Senior Sergeant Farrelly from the Sex Industry Coordination Unit (at the VCAT hearing) whose concerns were reported, “..one of his concerns was that, if some information was released, private workers and others might have less confidence in the register because they might wonder what else would be released.”
That information was accessed from the ‘exempt register’ sets a precedent that may make it easier for other parties – like researchers, media or even anti sex work organisations – to attempt to access information from the register in the future.
It is in the interest of members of our community to be aware that this disclosure of information from the register has occurred and to be able to consider what impact this may have on the integrity of the ‘exempt register’ in the future.
This is another example of why the full decriminalisation of sex work is necessary, as the registration of sex workers provides no benefit to our community, but rather increases stigma, compounds discrimination against sex workers and increases risk to members of our community who, seeking to avoid this, choose not to register and therefore face criminalisation.
INACCURATE LEGAL INFORMATION IN VICTORIA RISKS SEX WORKERS’ SAFETY
“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
Joint Vixen Collective and Scarlet Alliance Statement – Inaccurate Legal Information in Victoria
Read a plain English version of the joint statement here:
Joint Vixen Collective and Scarlet Alliance Statement – Inaccurate Legal Information in Victoria_Plain English
CLARIFYING “BODY SHOTS” IN ‘SEX WORK REGULATIONS 2016’
*Please note this is general information only and does not constitute legal advice*
When the ‘Sex Work Regulations 2016’ came into force on the 1st of June 2016 there was confusion over the ‘Advertising Controls’ section, specifically part 5(a), 5(b) and 5(c) – this section is commonly referred to as “body shots” as it encompassed changes that allowed sex workers to use full body pictures in internet advertising (where they had previously been restricted to head and shoulders only):
“..(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..”
Vixen Collective conducted a ‘snap consultation’ with Victorian sex workers in early June 2016 to understand the issues being experienced with the changes to ‘Advertising Controls’ and after discussions with Consumer Affairs Victoria (CAV) consulted St Kilda Legal Service on this issue.
In mid-December 2016 St Kilda Legal Service received feedback from the Deputy Secretary, Regulation & Director of Consumer Affairs Victoria, Mr Simon Cohen – indicating that CAV supported the following:
With regard to 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
With regard to 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
With regard to section 5(c):
- “Sexual act” is defined as per the term “sexual services” in the ‘Sex Work Act 1994’ section 3.
Access the ‘Advertising Controls’ section of the ‘Sex Work Regulations 2016’ here:
Read more about these changes and see the feedback from the CAV at the St Kilda Legal Service website here:
Vixen Collective thanks both Victorian sex workers – for contributing to the snap consultation – and St Kilda Legal Service – for contributing their time and energy without charge in assisting to achieve this important clarification of the regulations.
CONFUSION OVER ‘ADVERTISING CONTROLS’ IN NEW SEX WORK REGULATIONS
As indicated in Vixen Collective’s submission to the February review of the draft ‘Sex Work Regulations 2016’ the changes to the ‘Advertising Controls’ section have proved to be too vague and difficult to interpret to be usable.
Vixen Collective has conducted a ‘snap consultation’ with Victorian sex workers to collect feedback on the issues with the changes with the ‘Advertising Controls’ section and is working to address this directly with Consumer Affairs Victoria.
‘SEX WORK REGULATIONS 2016’ FAIL VICTORIAN SEX WORKERS
Despite substantial feedback on the draft ‘Sex Work Regulations 2016’ the newly released regulations have failed to take account of community feedback and contain only minimal changes to the ‘Advertising Controls’ section of the regulations.
See Vixen Collective’s Media Release here:
REVIEW OF ‘DRAFT SEX WORK REGULATIONS 2016’
The Victorian Government has released a draft of the proposed ‘Sex Work Regulations 2016’ which is available for review on the Consumer Affairs website.
Vixen Collective’s submission to the draft regulations can be accessed here: