Fight Banking Discrimination Against Sex Workers

Sex workers and sex industry businesses in Australia face widespread discrimination on the part of banks.

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What Exactly is Being Refused to Sex Workers?

All business banking services can and often are refused, including:

  • basic business debit accounts, basic transaction accounts, business debit cards
  • merchant facilities (EFTPOS, Credit card facilities etc.)
  • business loans
  • mortgages on property where the business is located
  • personal loans

Lack of access to basic banking services is not based on credit risk or other individually assessed financial risk. It is based on occupation or industry type.

Existing Australian banking regulation does not protect customers from discrimination on the basis of occupation or industry type. However, banking regulation is currently being reviewed. Sex workers and sex industry businesses Australia-wide have the chance to have their say on lack of access to banking services by making a submission to the review. We urge sex workers and sex industry businesses to make submissions by the 6 August, 2021. This banking review must be made fully aware of the extent of this problem. This type of banking regulation review only occurs every 3 years. Discrimination against sex workers has never been raised in previous reviews.

What You Can Do

The Banking Code Review is consulting with members of the public in relation to improving the Banking Code of Practice with submissions due by 6 August, 2021.

Any reference to small business is relevant to sex work and the sex industry. The Terms of Reference lay out what the Review wants people to write about in their submissions. The part of the Terms of Reference which most relates to the sex industry is clause 3 of the Scope, which reads:

‘The extent to which the Code contributes to banking services being inclusive, affordable and accessible for all customers, including: small business customers….’

The Review is looking at improving the Banking Code of Practice, which does not require banks to be inclusive and accessible for sex workers and small businesses more generally. The part of the Banking Code of Practice which most relates to the sex industry is Chapter 13, in Part 4 on page 21 of the Code. Chapter 13 does not currently refer to small business. Including small business in this Chapter would require banks to be inclusive and accessible to small businesses.

  • individual sex workers (even if you don’t currently have a business account)
  • strippers
  • porn performers
  • sex industry businesses (brothels and escort agenices)
  • sex industry business third parties (cleaners, escort agency drivers, managers, receptionists)
  • strip clubs
  • adult product retailers
  • small business owners in general
  • allies and supporters of the sex industry
    1. Are banking facilities essential to your business? Are bank accounts an essential service?
    2. Do you have a business bank account connected to your sex work? Even if you don’t, still make a submission. 
    3. Are you comfortable with your submission being made public? If not, request that your submission remains confidential.
    4. Will you use your real name or a work name/alias?
    5. Do you want your name removed from the published version of your submission?
    6. Are you a sex worker, stripper or porn perfomer? If so, you may want to say so in your submission.
    7. If you are a sex worker, do you operate lawfully/legally? If you do, you may want to say so in your submission. Banks are only supposed to offer financial services to businesses that operate legally. Many in the general community, including the banking industry, are unaware that sex work has been legalised or decriminalised in most Australian states/territories.
    8. Have you ever experienced banking discrimination on the part of one of the 22 banks covered by the Review? If so, you may want to tell the story, name the bank and identify the year in which this happened to you. Remember, this Review is only interested in hearing about banking discrimination if it occurred on the part of one of the 22 banks covered by the Review. If you were discriminated against by a merchant service, payment processor or a bank not on the list of the 22 banks in the Review, that will not be relevant to this Review.
    9. Do you expect to be discriminated against by banks based on your occupation/industry? If the answer is yes, you might want to say so in your submission. Can you, or do you want to operate a business without access to bank account facilities? If you believe business bank account facilities are essential, say so in your submission.

Yes1,  unless you request confidentiality. You have the option of:

  • Using an alias or your work name
  • Requesting the name on your submission be removed (redacted) from the published version of your submission
  • Requesting your entire submission remains confidential so that none of it is published.

To verify this information or for more information about the publication of submissions, please email: submissions@bankingcodereview.com.au

Not Sure How to Write a Submission to the Banking Code Review? Here’s an Example

Writing a submission is your way of telling the Banking Code Review how the existing Banking Code of Practice is failing sex workers and sex industry businesses. A submission doesn’t have to be complicated or lengthy; you don’t need legal or banking knowledge to make one. Basically a submission expresses your personal views on banking discrimination and how the Banking Code of Practice can be improved. The Banking Code Review has a webpage about making submissions.

First consider your privacy – a public submission will be published on the Banking Code Review website and can include your published name (which doesn’t have to be your real name).

A confidential submission is not published on the government website (you can still use an alias). 

See below for a suggested format for a simple submission by a sex worker. We also provide a complete sample submission.

Submission Guide for Sex Workers

Sex Worker Submission Guide Banking Code Review 2021
Sex worker submission guide
Sex worker submission example

Submission Guide for Sex Industry Businesses

We provide a suggested format for a simple submission by a sex industry business. We also provide a completed sample submission to help you.

Submission Guide for Sex Industry Businesses

Sample Submission for Sex Industry Businesses

Submission Guide for Non Sex Workers (Allies)

We provide a suggested format for a simple submission by non sex workers. We also provide a complete sample submission to help you.

Submission Guide for Non Sex Workers

Sample Submission for Non Sex Workers

You’ve Written Your Submission – How Do You Send It In?

 

Submissions are due by 6 August, 2021 and should be emailed to submissions@bankingcodereview.com.au

Step 1 – Add Page Numbers

If your submission is more than one page, insert page numbers on the document.

Step 2 – Send

We suggest sending your submission in either Word (or similar) or PDF format. You will need to compose an email accompanying your submission, indicating whether or not you want your submission published, or if you want your name removed for the published version of your submission. Below in blue is an example of text to put in the body of your email. Please change the wording to suit your situation:

Dear Banking Code Review

Please find my attached submission. I am happy for my submission to be published, but I request my name be removed from the published version of my submission.

Regards

Full Name

 

It is helpful to have as many public submissions from sex workers as possible. This will send a clear message to the review that banking discrimination is an ongoing problem for our community and that we want laws and regulations to protect us from such discrimination.

The Banking Code of Practice applies to 22 of Australia’s largest banks, including the Big Four banks.

Your Questions Answered

While most sex workers in Victoria are unable to work within the licensing system of sex work laws, it now appears that the Victorian may decriminalise sex work, with the media reporting a sex work decriminalisation bill is expected to be tabled by the end of 2021. Banks are only supposed to offer banking services to lawfully operating businesses. This means decriminalising sex work in Victoria would enable far more sex workers to apply for business bank accounts.

The Banking Code of Practice (The ‘Code’) is Australia’s primary form of banking regulation, requiring banks to treat their customers fairly. The Code applies to sole traders and small businesses operating Australia wide, not just in Victoria. The Code treats private sex workers and larger brothels and escort agencies in the same way – as ‘small businesses’.

The Code is enforced by the Australian Financial Complaints Authority (AFCA), which publishes almost all of its determinations (rulings).

Read AFCA determination on dispute between NAB and an escort agency

The Code is reviewed every 3 year, with the latest review occurring in the second half of 2021. Submissions are now open and are due on 6 August 2021.

The Banking Code of Practice applies to 22 of Australia’s largest banksincluding NAB, Commonwealth Bank, Westpac and ANZ. Payment processor companies, like Stripe, Square Payments and PayPal are not covered by the Code as they are not banks. Banks which are bound by the Code are the 22 members of the Australian Banking Association (ABA), a large organisation which represents the interests of its member banks.

The 22 member banks of the Australian Banking Association covered by the Code are:

AMP Bank

ANZ

Arab Bank Australia

Bank Australia

Bofa Securities

Bank of China

Bank of Queensland

Bank of Sydney

Bendigo and Adelaide Bank

Citigroup

Commonwealth Bank of Australia

HSBC

ING Bank

Macquarie

MUFG

ME Bank

MyState Bank

NAB

(bans all sex industry businesses)

Rabobank

Suncorp

United Overseas Bank

Westpac

   

 

Even though the Code doesn’t apply to some smaller banks in Australia, or to payment processor companies, the Code’s influence is significant. It is used as a general guide by other companies to how they ought to treat their customers.

The existing accessibility protections in the Code currently only apply to ‘customers’ (non business account holders), not ‘small businesses’, referred to as ‘inclusive and accessible banking’, see Chapter 13 of the Code.

Overall, the Code applies to individual non-business customers, sole traders (self-employed businesspeople such as private sex workers) as well as small businesses (such as escort agencies and brothels), but the existing accessibility protections contained within it only applies to customers. Both sex industry businesses (brothels and escort agencies) and private sex workers are considered to be ‘small businesses’ in the Code. This distinction is important, because the Code treats small businesses differently from other types of customers. Sex workers, including private sex workers, are classified as small businesses. Small businesses generally use business banking services.

There are legitimate reasons why banks can refuse to provide services to a sole trader or small business. One reason is if the bank has reason to believe a particular business is operating illegally. A belief that a business is operating illegally should be based on evidence not prejudice. This is why all states and territories in Australia urgently need to fully decriminalise all forms of sex work, so that sex workers can operate lawfully.

Technically, no. The Code does not refer to discrimination, it refers to ‘inclusive and accessible banking’ for vulnerable groups of ‘customers’. It does not provide for inclusive and accessible banking for sex workers, sex industry businesses and small business in general.

‘Chapter 13 Being inclusive and accessible’ requires member banks to be inclusive of:

  • older customers
  • people with a disability
  • Indigenous Australians, including in remote locations
  • people with limited English

Chapter 13 makes no reference to small business, occupation or industry type. This means the existing Code makes no requirement for banks to be inclusive and accessible for sex workers, sex industry businesses or small businesses more generally.

Banking discrimination can be addressed in a number of ways. State/territory anti-discrimination laws and federal banking regulations play different but important roles in tackling this systemic problem. 

Anti discrimination laws don’t protect sex workers in all states.  Sex workers’ rights activists, including SWLRV, are fighting to strengthen these laws.

Anti-discrimination cases can be difficult to prove and are very rarely used in the context of sex work, as they often require paying expensive lawyers to support tribunal legal action. This contrasts with large banks, which have billions of dollars to spend on lawyers to defend their discriminatory positions.

Breaches of the Banking Code of Practice are easier to enforce as investigations and public determinations (rulings) are conducted by the Australian Financial Compliance Authority (AFCA), at no cost to the sex worker.

The existing Banking Code of Practice puts the onus on sex workers to prove, in a tribunal using anti-discrimination laws, that discrimination has occurred. Strengthening the Code to require banks to be inclusive and accessible for small businesses will put the onus on the banks to demonstrate to the Australian Financial Complaints Authority (AFCA) that they are being inclusive and accessible for small businesses, as required by the Code.

An independent reviewer Mike Callaghan AM PSM has been appointed to conduct the review. Mr Callaghan has a background in Australian and international financial regulation. Mr Callaghan is independent and does not work at the Australian Banking Association or any of its 22 member banks. Banking Code Reviews occur every three years.

Written submissions to the review are due on 6 August 2021. The reviewer, Mike Callaghan, is due to complete his final report by 30 November, 2021. The report and its recommendations on how the Banking Code of Practice ought to be changed will be published along with the public submissions.

The Australian Banking Association and its 22 member banks will then consider Mr Callaghan’s recommendations. They do not have to adopt his recommendations. Following previous reviews, it has taken years for changes to be officially incorporated into the Code.

Fact Checking By Banking Lawyer

Professor Denis Nelthorpe AM has checked for the legal accuracy of this webpage regarding the current law, the Banking Code of Practice, and the Banking Code Review 2021. Professor Nelthorpe is a former board member with the Financial Ombudsman Scheme and a member of the Code Compliance Committee – Victorian LPG Industry. This is general information only and is not to be taken as legal advice. In the 1980’s, Professor Nelthorpe supported sex workers via workshops he delivered to the Prostitutes Collective of Victoria.

      1. See page 37 of the 2021 Independent Review of Banking Code of Practice CONSULTATION NOTE, July 2021 which reads ‘Consultation will include a public submissions process.’
      2. See definition of “You” on page 11 of the Banking Code of Practice
      3. See definition of “Small Business” on page 12 of the Banking Code of Practice

© Sex Work Law Reform Victoria 2021

Last updated: 18 July, 2021