Coronavirus Laws: Is Sex Work Banned?

 

All forms of Sex Work Still Permitted in Victoria

From 11:59pm on Friday 22 January, 2021, updated coronavirus restrictions apply to Victoria. However, the minor changes to the coronavirus restrictions do not change the situation for the sex industry: all forms of licensed sex industry businesses and registered sex workers are still allowed to operate, subject to the usual sex work licensing laws.

Victoria currently has  COVIDSafe Summer restrictions.

Some conditions and restrictions continue to apply to the manner in which sex industry businesses can operate.

Allowed in Victoria

  1. private sex worker outcall bookings can occur
  2. private worker incall bookings (with applicable council and landlord approval)
  3. licensed brothels can operate with some restrictions such as a cap of 100 people, and density quotients
  4. licensed escort agencies can operate
  5. self-employed tantric massage, erotic massage, sensual massage and happy ending massage practitioners doing only outcall appointment can operate 
  6. non-sexual massage therapists doing outcall appointments are allowed with requirements like mask wearing
  7. self-employed tantric massage, erotic massage, sensual massage, or happy ending massage practitioners doing incall appointments can operate
  8. strip clubs may operate with some restrictions such as density quotients
  9. sex on premises venues (including gay sex saunas) can operate with some restrictions such as a cap of 100 people, and density quotients

You may now leave your home for any reason, including to go to work: see clause 5(1) of the Stay Safe Directions (Victoria) (No 11)

Brothels, sex on premises venues, and strip clubs permitted to operate: See clauses 8(14-15) of the Restricted Activity Directions (Victoria) (No 5)

Non-sexual massage therapy allowed with face masks: see clauses 10(1), 10(2)(a), 10(3), and 22(3)(c) of the Restricted Activity Directions (Victoria) (No 5)

Our Submission on Coronavirus and Sex Work

After receiving considerable feedback from the sex industry, we made a submission to the Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic. Our submission identified a need for the Victorian Government to provide clear, timely communication in plain English about what coronavirus restrictions mean for the sex industry. The fact that no written material has been provided in languages other than English is of particular concern, given that around 50% of sex workers in Victoria are migrant sex workers.

View our submission

View all submissions

Each state in Australia has a form of special coronavirus laws to combat the virus. Victoria is currently under the COVIDSafe Summer coronavirus restrictions which affect businesses, including sex industry businesses. By sex work, the Victorian government means physical, person-to-person sex work. The new Restrictions come from Directives issued under sections 190 and 200 the Public Health and Wellbeing Act 2008 (Vic), by the Deputy Chief Health Officer (Communicable Diseases).

Victoria Now Under COVIDSafe Summer Restrictions (as at 23 January 2021)

1. Do I have to wear a face mask when indoors?

Yes, masks are still mandatory in some indoor settings, including on public transport and when taking share rides like Uber. The main business settings where you must wear a mask are indoor shopping centres and other large stores.

If you leave home, take a mask with you and wear it any time you are inside one of these settings, apart from when you’re eating or drinking.

Sources

Clause 5(7)(a-b)of the Stay Safe Directions (Victoria) (No 11)

2. Are face masks still required inside brothels and strip clubs?

In most cases, no. Whether a mask is required will depend on whether a sex industry business is located in a market, market stall or retail shopping centre. New coronavirus Directions published on 23 January, 2021 list the types of indoors business settings where you are required to wear a mask.

Businesses not located in a market, market stall, or retail shopping centre

No masks required. Most likely to apply to:

  • brothels
  • strip clubs
  • sex on premises venues

as most, if not all brothels, strip clubs and sex on premises venues are located away from retail shopping centres, market stalls or markets. 

Businesses located in a market, market stall, or retail shopping centre

Masks required for clients, patrons and workers. Most likely to apply to:

Sources

Clause 5(7)(b)(iv) of the Stay Safe Directions (Victoria) (No 11)

3. Is the sex industry classified as a ‘high risk industry’ that requires a special COVID-Safe plan to operate?

No. The Directions list the industries classified as ‘high risk’, also known as ‘Additional Obligation Industries’. The sex industry is not on the list. 

Sources

Clause 5 of the Workplace (Additional Industry Obligations) Directions (No 16)

See the page “High Risk COVIDSafe Plan” on the DHHS website. 

4. What types of sex industry businesses are required to have a COVID-Safe Plan in place?

Special coronavirus workplace procedures now apply to all on site work premises which operate. Work premises means:

the premises of an employer in which work is undertaken, including any vehicle whilst being used for work purposes, but excluding an employee’s ordinary place of residence;

Sex industry and adult industry businesses that operate work premises are likely to include brothels, sex on premises venues, strip clubs, and private workers offering incall services (which are legally classified as a brothel).

Sources

Definition of work premises: see clause 10(53) of the Workplace Directions (No. 17)

5. Has the Victorian Government developed a guide on how to safely re-open sex industry businesses yet?

Yes. In January 2021, the Victorian Government updated its “Industry Restart Guidelines for the sex industry. These Guidelines apply to brothels, strip clubs and sex on premises venues. 

6. What does a COVID-Safe Plan require work premises to do?

The Workplace Directions (No. 17) outline what is required of all operating work premises. These requirements apply to all work premises, including sex industry work premises. The COVID-Safe special requirements applying to all work premises include:

  1. Develop, display, and implement a COVID-Safe plan for each workplace in which staff work onsite on the premises. This would apply to brothels, massage parlours, sex on premises venues, and strip clubs (clauses 6(3)-(4))
  2. Record keeping obligations, including recording the name and phone number of all staff and clients who visit an onsite workplace for more than 15 minutes. (clauses 6(7)-(10))
  3. Limit the number of people inside an indoor space, depending on the size of the room (clauses 6(13)-(15)) 
  4. No more than 100 members of the public allowed inside brothels, sex on premises venues and strip clubs 
  5. Put up clear signage stating the maximum number of people permitted in a publicly accessible space at an onsite workplace at a given time (clauses 6(16)-(18)) 
  6. Cleaning requirements (clauses 6(19)-(21)) 
  7. Not require staff to work if they show symptoms of coronavirus (clause 7(1)) 
  8. Advise staff to self-isolate and get tested if they display symptoms of coronavirus (clauses 7(2)(a-b)) 
  9.  Workers to notify their employer if they obtain a positive coronavirus test result (clause 8(2))
  10. If a workplace confirms a positive coronavirus case, employers must:
    1. notify WorkSafe of the positive coronavirus cases in their workplace (clause 8(3)(a))
    2. advise the infected worker to not attend work and self-isolate (clause 8(3)(b))
    3. undertake a risk assessment (clause 8(3)(c))
    4. undertake a comprehensive clean of the workplace (clause 8(3)(d))
    5. identify the close contacts of the infected worker (clause 8(3)(e))
    6. notify all other workers at the workplace that a positive infection has been detected (clause 8(3)(f))
    7. implement risk management measures (clause 8(3)(h)
    8. contact DHHS to provide them with information relating to your response to the infected person (clause 8(3)(i))
    9. if a workplace closes as a result of a positive infection, only reopen once obligations have been fulfilled, contact tracing is complete and the Department has given clearance to do so. (Clause 8(3)(j))

More information can be found on the Workplace Obligations page of the DHHS website. 

Sources

All references to clauses come from the Workplace Directions (No. 17)

Limit of 100 members of the public inside a brothel, sex on premises venue or strip club: Clause 8 (14)(b)(ii) of the Restricted Activity Directions (Victoria) (No 5)

Also, see DHHS’s page titled “COVIDSafe Plan(webpage reviewed 19/1/21) and “Creating a COVID-Safe workplace(webpage reviewed 19/1/21)

7. Where can I download a COVID-Safe Plan for my business?

The Victorian Government’s Coronavirus webpage provides a downloadable COVID-Safe plan that applies to all businesses that have on-site operations. This plan can apply to all businesses, including sex industry businesses. The High Risk COVIDSafe Plan does not apply to sex industry businesses as sex industry businesses are not classified as ‘high risk’.

COVIDSafe Plan website (webpage reviewed 19/1/2021)

8. Which sex industry licensing and registration requirements apply to my work?

As the sex industry re-opens, Victoria’s existing general sex work licensing and registration laws still apply. These existing licensing laws are restrictive and prohibit many aspects of sex work, including advertising and the location of service. For more information, please see our guide to sex work laws. We break down the laws by sector: private sex work, escort agency work, brothel sex work and street-based sex work.

The Law: A Guide for Sex Workers

9. I live in Victoria. Can I hook up and have UNPAID casual sex?

Yes, you can have up 30 adults (aged 18 or over) visitors to your house for social visits each day.

Sources

Clause 7(2)(h) of the Stay Safe Directions (Victoria) (No 11)

10. I’m a sex worker and I live outside Victoria. If I travel into Victoria, do Victoria’s sex work coronavirus restrictions apply to me?

Yes. Visitors to Victoria have to follow the same restrictions as Victorians. If you choose to travel to Victoria, you MUST follow Victorian coronavirus restrictions.

From 11 January, 2021, a new permit system applies to all domestic visitors to Victoria from other states/territories. 

For more information see the Victorian Travel Permit System page on the Victorian government website.

Sources

Sub-clauses 5(4) and 5(5) of the Stay Safe Directions (Victoria) (No 11)

11. What else do COVIDSafe Summer restrictions restrict me from doing?

This website covers how COVIDSafe Summer restrictions affect the sex industry, strip clubs, and sex on premises venues. To learn about how these coronavirus restrictions affect other areas of our lives, see the Victorian DHHS website “How we live – Information for all Victorians

12. When do these coronavirus laws in Victoria change?

They may be updated as early as 11:59pm on 29 January, 2021. The Victorian Government has the power to change coronavirus restrictions at any time. Until that time current COVIDSafe Summer restrictions allow all forms of sex work with on-site premises businesses requiring a COVID-Safe plan. After 30 January, 2021, the government may choose to extend, ease or alter the restrictions. 

Sources

Clause 4 of the Stay Safe Directions (Victoria) (No 11)

Extension of a Declaration of a State of Emergency (3/1/2021 – 29/1/2021)

Clause 4 of the Restricted Activity Directions (Victoria) (No 5)

Clause 4 of the Workplace Directions (No. 17)

13. What do the different Steps of restrictions mean?

In order to stop the spread of coronavirus, the Victorian Government can introduce special temporary laws called Directions. These Directions affect our lives in many ways, including:

  1. restricting where we can travel to
  2. requiring us to wear a face mask outside our homes
  3. ordering certain types of businesses to close
  4. restricting the times of day we can leave the house (a curfew)

Directions are classified in different Steps, with the strictest stage being Step 1. COVIDSafe Summer restrictions now apply to the whole of Victoria. There is flexibility regarding when the Victorian Government can change the level of coronavirus restrictions.

Source

Victorian Government: ‘COVIDSafe Summer

14. Who do I contact with further questions? 

For any questions about COVID-Safe plans for sex industry businesses, or for any questions about re-opening the economy, please email the Department of Jobs, Precincts and Regions on:  

ICC@ecodev.vic.gov.au

15. Which Victorian Government website provides the most useful information for the sex industry?

The Adult Entertainment Sector Guidance page provides the most detailed, sex industry specific guidance.

Adult Entertainment Sector Guidance

Who is Ordering the Restrictions on Sex Work?

The Victorian Department of Health and Human Services (Victorian DHHS).

Who Enforces the Restrictions on Sex Work?

Victoria Police, both the Sex Industry Coordination Unit (SICU) and suburban police stations. 

What are the Penalties?

Police can penalise breaches of this ban in two ways: they can issue an on-the-spot fine or a penalty to be determined at court. 

On the spot fines are $1,652 for individuals and $9,913 for businesses. Victoria Police have not yet publicly clarified whether individual private sex workers will be classified as ‘individuals’ or ‘businesses’. Penalties determined at court occur under section 203 of the Public Health and Wellbeing Act 2008 (Vic), with the maximum penalty being 120 penalty units (until 30 June 2021), equivalent to a maximum fine of $19,826.40.

Unlawful gatherings either indoor or outdoor can now attract fines of $4,957 for individuals.

The Age Article Refers to $4,957 Fine For Unlawful Gathering (28 September 2020)

Victorian Government Website Explains Penalties

Which Types of Penalty Have Been Imposed To Date?

According to media reports, the majority of fines imposed within the sex industry have been on-the-spot fines issued to both individuals and businesses.

Who Has Been Fined So Far?

According to media reports, the majority of fines have been imposed upon brothels and massage parlours, and on individuals working inside them. One client at a massage parlour was also fined. Media reports have not suggested that any private workers have been fined. On 12 September, 2020, ABC News reported that 80 sex workers, brothel owners and clients had been fined for coronavirus restrictions. 

What About Contact Tracing and the COVID-Safe App?

Contact tracing occurs when the government contacts people who they suspect have been in contact with someone who has an infectious disease. Contact tracing is not new, and has been used for years in relation to a number of infectious diseases. 

In order to speed up contact tracing during coronavirus, the Federal government has released a smartphone app called COVID-Safe, use of which is voluntary. Millions of Australians have already downloaded the app, but serious privacy concerns remain with how the data will be used and who will have access to it. 

Thorne Harbour Health has a guide to the CovidSafe app

Thorne Harbour Information on CovidSafe app

Centrelink Support

Information about government support payments is available on the Australian Government website.

Seeking Work Outside the Sex Industry

Many sex workers are currently considering their options and applying for work outside the sex industry. Once again, the law creates barriers to sex workers seeking alternative employment. Victoria’s anti-discrimination laws do not protect sex workers from discrimination by prospective employers. Fiona Patten’s Sex Work Review will consider many aspects of sex work, including any reforms to anti-discrimination laws.

© Sex Work Law Reform Victoria 2021

Last updated: 23 January 2021