Coronavirus Laws: Is Sex Work Banned?

 

All Forms of Sex Work Still Banned in Melbourne

From 11:59pm on Sunday 27 September, 2020, two new sets of coronavirus restrictions will continue to apply to two regions of Victoria. These regions are 1) the metropolitan Melbourne region, and 2) the rest of Victoria. Each has a different set of coronavirus restrictions. From late September 2020, the Victorian Government will gradually ease coronavirus restrictions via a number of “Steps”. According to these Steps, the sex industry will be one of the last industries to re-open. 

In the metropolitan Melbourne region, all forms of sex work are banned under Step 2 restrictions.

On 6 September, 2020, the Victorian Government announced a plan to allow industries to gradually begin to re-open as coronavirus restrictions are eased over many months. The plan involves a number of “Steps”. There are no fixed dates for when these Steps will apply. Regarding adult entertainment and brothels, the re-opening Steps plan for metropolitan Melbourne is the same as regional Victoria. The Victorian Government has not yet clarified the status of escort agencies or private escorts in relation to future Steps.

First step

Some industries allowed to re-open, with conditions and some restrictions. All adult entertainment and brothels remain completely closed.

Second step
(Melbourne
now)

More industries allowed to re-open, with conditions and some restrictions. All adult entertainment and brothels remain completely closed. 

Third step

Even more industries allowed to re-open, with conditions and some restrictions. All adult entertainment and brothels remain completely closed. 

Last step

Even more industries allowed to re-open, with conditions and some restrictions. Strip clubs allowed to re-open with conditions and restrictions. Brothels remain completely closed.

COVID Normal

All industries permitted to re-open, with a COVIDSafe Plan. This includes the sex industry and strip clubs.

 

 

Adult Entertainment and Brothels

There are no fixed dates for the Steps

 

Sources

Victorian Government: Industry restriction levels: Metro Melbourne

Victorian Government: Industry restriction levels: Regional Victoria

Statement from the Victorian Premier (6 September 2020)

On 7 September 2020, the Business Licensing Authority (BLA) provided translated resources about coronavirus restrictions and sex work in Victoria. The BLA said these translated resources are current as at 7 September, 2020. Translations are in Korean, Thai and Chinese.

Directions are special coronavirus laws. The Directions refer to the metropolitan Melbourne region as the "Restricted Area". They refer to the rest of Victoria as the "Relevant Area".

Directions Applying to Metropolitan Melbourne Only

Area Directions (No 8)

Restricted Activity Directions (Restricted Areas) (No 10)

Stay at Home Directions (Restricted Areas) (No 16)

Directions Applying to the Rest of Victoria (Outside Metropolitan Melbourne)

Restricted Activity Directions (Non Melbourne) (No 6)

Stay Safe Directions (Non Melbourne) (No 2)

The Following are Banned in the Metropolitan Melbourne Region:

      1. private sex worker incall bookings
      2. all brothels must remain closed (this includes both licensed and unlicensed)
      3. all massage parlours offering happy ending massage must remain closed
      4. all non-sexual massage therapy shops (non-sexual massage parlours) must remain closed
      5. all escort agencies must remain closed
      6. private sex worker outcall bookings
      7. self-employed tantric massage, erotic massage, sensual massage and happy ending massage practitioners must not operate (both incall or outcall bookings)
      8. strip clubs must remain closed
      9. all sex on premises venues must remain closed

Restricted Activity Directions (Restricted Areas) (No 10) are now enforceable pursuant to the Public Health and Wellbeing Act 2008 (Vic) s 200(1)(d).

The greater Melbourne region is still under Second Step restrictions. Under Second Step restrictions,  the Victorian Government provides a list of the types of workplaces permitted to remain open. This is called the “Permitted Work Premises” and is found on the “Business and Industry – Restrictions by Industry” page of the Victorian DHHS website. 

Stripping (explicit entertainment), escort agencies, brothels, private sex work, massage parlours, non-sexual massage shops and sex on premises venues (includes gay sex saunas) are NOT on the list of permitted businesses/workplaces. This means none of these types of work are permitted. The Restricted Activity Directions (Restricted Areas) (No 10) list some exceptions; that is, some additional workplaces that are allowed to operate. Again, stripping (explicit entertainment), escort agencies, brothels, private sex work, massage parlours, non- sexual massage shops and sex on premises venues (includes gay sex saunas) are NOT on the list of exceptions. 

For more information see clause 7 of the Restricted Activity Directions (Restricted Areas) (No 10)

For the rest of Victoria (outside metropolitan Melbourne), escort agencies, private worker outcalls and non-sexual massage are allowed.

The Following are Banned in the the rest of Victoria (outside metropolitan Melbourne):

      1. private sex worker incalls
      2. all brothels must remain closed (this includes both licensed and unlicensed brothels)
      3. all massage parlours offering happy ending massage must remain closed
      4. self-employed tantric massage, erotic massage, sensual massage and happy ending massage practitioners must not operate (both incall or outcall bookings)
      5. sex on premises venues
      6. strip clubs

Ban on brothels, private worker incalls and strip clubs: see clauses 7(1), 7(2)(k) of the Restricted Activity Directions (Non-Melbourne) (No 6)

See legal definition of brothel in s 3 of Sex Work Act 1994 (Vic)

See legal definition of sex on premises venue in s 3B of the Sex Work Act 1994 (Vic)

See definition of strip clubs in clauses 17(65)-17(66) of the Restricted Activity Directions (Non-Melbourne) (No 6)

Definition of ‘sexually explicit entertainment’ in s 3 of the Liquor Control Reform Act 1998 (Vic)

See also the ‘Shopping and retail: Regional Victoria third step’ page on the DHHS website.

Allowed in Rest of Victoria (Outside Metropolitan Melbourne):

  1. private sex worker outcalls are allowed
  2. escort agencies are allowed to operate
  3. self-employed tantric massage, erotic massage, sensual massage and happy ending massage practitioners offering only outcall bookings are allowed
  4. non-sexual massage therapy shops are allowed (non-sexual massage parlours), with limits on the number of clients in the venue and other conditions such as mask wearing
  5. non-sexual massage therapists doing outcall appointments are allowed with requirements like mask wearing

The new Directions permit some forms of sex work. But the health advice remains clear and simple: as much as possible, remain at least 1.5 metres away from all people.

Some forms of work permitted: Clauses 6(1)(a) and 6(2) of the Stay Safe Directions (Non-Melbourne) (No 2), which permits travel for work that cannot be done at home.

1-3. Private sex worker outcalls, escort agencies and self-employed erotic massage therapists doing only outcall bookings allowed:

Escort agencies are not on the list of ‘entertainment facility’ businesses that must remain closed under clause 7(2)(k) of the Restricted Activity Directions (Non-Melbourne) (No 6)

legal definition of escort agency found in s 3(1) of the Sex Work Act 1994 1994 (Vic)

4. Non-sexual massage therapy allowed: see clauses 9(3) and 17(6)(c) of the Restricted Activity Directions (Non-Melbourne) (No 6)

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 is introducing strict laws to combat the virus. Different parts of Victoria currently have Second and Third Step coronavirus restrictions in place affecting businesses, including sex work businesses. By sex work, the Victorian government means physical, person-to-person sex work. (The ban does not apply to solo web-camming and suchlike.) 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).

Metropolitan Melbourne Still Under Second Step Restrictions
(as at
28 September, 2020)

1. Second Step coronavirus restrictions now apply to metropolitan Melbourne. Which Melbourne council areas are affected?

As at 28 September, 2020, Second Step coronavirus restrictions now apply to the metropolitan Melbourne region, which includes the following council areas:

Banyule Hume Moreland
Bayside Kingston Mornington Peninsula
Boroondara Knox Nillumbik
Brimbank Manningham Port Philip
Cardinia Maribyrnong Stonnington
Casey Maroondah Whitehorse
Darebin Melbourne Whittlesea
Frankston Melton  Whyndham
Glen Eira Monash Yarra
Greater Dandenong Moonee Valley Yarra Ranges
Hobsons Bay    

Sources

Victorian DHHS Victoria’s Restrictions levels

Definition of ‘metropolitan Melbourne’ in s 3 of the Planning and Environment Act 1987 (Vic)

Schedule 2 of Planning and Environment Act 1987 (Vic)

2. I live in metropolitan Melbourne. Can I hookup and have UNPAID casual sex?

No. You can no longer visit friends or family living in another household unless they are your intimate partner. You may visit your intimate partner. Only your intimate partner can visit you. In this context, a family member who is your intimate partner would be your spouse, boyfriend or girlfriend.

A small number of people can visit for specific reasons. There remain many restrictions on who can visit you. Casual sex partners are not permitted under existing restrictions on visitors to your house.

Sources

Clause 7(1)(j) covers ‘intimate personal relationships’, sub-cl 11(1) covers private gatherings and sub-cl 11(2)(c)(i) covers care/compassionate care. These clauses come from the Stay at Home Directions (Restricted Areas) (No 16)

Social Bubble: see ‘Social bubbles and visitors to your home’ on the ‘Social gatherings: Metropolitan Melbourne first steppage of the DHHS website.

3. I live in regional Victoria, outside metropolitan Melbourne. Can I hookup and have UNPAID casual sex?

No. If you live in regional Victoria, you cannot have visitors to your house except for a small number of specified reasons. Unpaid casual sex does not fall into any of the specified reasons for having visitors over to your house. 

Sources

See clause 7(1)-(4) of the Stay Safe Directions (Non Melbourne) (No 2)

4. I’m a sex worker and I live in regional Victoria. If I travel into Melbourne, am I then allowed to do sex work?

No. The complete ban on all forms of sex work in metropolitan Melbourne applies to all people, including those who happen to be in the metropolitan Melbourne area.

5. 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 regional Victoria (outside metropolitan Melbourne), you MUST follow regional directives. Similarly, if you choose to travel to metropolitan Melbourne, then you MUST follow the directives specific for that region also. The different directives for different regions are listed above, at the top of this webpage.

Sources: Sub-clause 5(4) of the Stay at Home Directions (Restricted Areas) (No. 16)

6. I’m a client of sex workers. Am I allowed to pay to see a sex worker in Victoria?

Yes, but only if:

A. both you and the sex worker live outside metropolitan Melbourne, and;

B. the sex worker sees you at your home/apartment or a hotel/motel booked in your name.

You would also need to be sure that there was nothing preventing you from having guests at your home/apartment/hotel, such as being ordered into quarantine by DHHS, which means you cannot have ANY contact with anyone for a period of time (usually two weeks). 

Obviously if someone is in quarantine, they cannot see a sex worker under any conditions.

The new Directions do allow clients to see sex workers. But the health advice remains clear and simple. As much as possible, remain at least 1.5 metres away from all people.

Sources

Clause 7(2)(c) of the Stay Safe Directions (Non Melbourne) (No 2)

Escort agencies are not on the list of ‘entertainment facility’ businesses that must remain closed in sub-clause 7(2)(k) of the Restricted Activity Directions (Non-Melbourne) (No 6)

Legal definition of escort agency found under s 3 of the Sex Work Act 1994 (Vic)

7. What else do Second and Third Step restrictions restrict me from doing?

This website covers how Second and Third Step 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 “Victoria’s Restriction Levels

8. What about working from home? Can sex workers see clients in the sex workers’ home?

No. All forms of sex work remain completely banned for both sex workers and their clients in Metropolitan Melbourne.

Second Step restrictions require people to work from home if they can do so. However, a sex worker working from home is legally classified as a brothel, and all brothels must remained closed. This means a private sex workers are banned from doing incalls.

The legal definition of brothels in Victoria is very broad and includes a single private sex worker seeing a single client for an incall booking

The legal definition reads:

brothel means any premises made available for the purpose of sex work by a person carrying on the business of offering or providing sex work services at the business’s premises;

Source

Definition of brothel in s3 of Sex Work Act 1994 (Vic)

9. I want to pay to visit a sex worker. Does that count as visiting my ‘intimate partner’?

No. All forms of sex work remain completely banned for both sex workers and their clients in metropolitan Melbourne.

Steps 1 and 2 restrictions do allow visits to intimate partners. But sex work means commercial sex where there is payment for the sexual services. Sex work is of a business nature. An intimate partner refers to an unpaid intimate relationship of a personal nature. 

10. Does sex work count as ‘necessary goods and services’?

No. Under Steps 1 and 2 restrictions, people are allowed to leave their home for necessary goods and services. The Directions list what counts as a necessary good or service. Sex work, brothels, escort agencies, strip clubs and sex on premises venues are not on the list. 

Sources

Clauses 5(1)(a) and 6 of the Stay at Home Directions (Restricted Areas) (No. 16)

11. Can I do sex work for ‘care or other compassionate reasons’?

No. Under Step 2 restrictions, people are allowed to leave their home for ‘care or other compassionate reasons’. The Directions list what counts as a ‘care or other compassionate reasons’. Sex work, brothels, escort agencies, strip clubs and sex on premises venues are not on the list. 

Sources

Stay at Home Directions (Restricted Areas) (No 16); sub-clause 5(1B)(b) includes leaving home for ‘care or compassionate reasons;’ cl 7 addresses ‘leaving home for care or other compassionate reasons.’

12. When do these strict coronavirus laws in Melbourne change?

It is unknown/unclear/uncertain, however they will be reviewed at 11:59pm on 11 October, 2020. Until that time current strict Second Step restrictions that ban all forms of sex work remain in place. After 11 October, 2020, the government may choose to extend, ease or alter the restrictions.

Source

Extension of Declaration of State of Emergency (declared 13 September, 2020)

13. When do these strict coronavirus laws in regional Victoria change?

11:59pm on 11 October, 2020. Until that time current restrictions that ban some forms of sex work remain in place for regional Victoria. After 12 October, 2020, the government may choose to extend, ease or alter the restrictions.

Sources

Extension of Declaration of State of Emergency (declared 13 September, 2020)

Clause 4 of the Stay Safe Directions (Non Melbourne)

Clause 4 of the Restricted Activity Directions (Non-Melbourne) (No 6)

14. Can I be sure that escort agencies are allowed to operate outside metropolitan Melbourne?

Both the Department of Health and Human Services (DHHS) and Consumer Affairs Victoria (CAV) websites refer to certain forms of sex work that are banned in regional Victoria (outside metropolitan Melbourne). However, on the list of banned business types, neither of these websites mentions escort agencies.

See clause 7(2)(k) of the Restricted Activity Directions (Non-Melbourne) (No 6) on the DHHS website and the reference to sex workers on the Consumer Affairs Victoria website.

Any queries about coronavirus restrictions and sex work should be directed to the Department of Health and Human Services.

COVIDDirections@dhhs.vic.gov.au

15. 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. Melbourne currently has Step 2 restrictions, with the rest of Victoria under Step 3 restrictions. There is flexibility regarding when the Victorian Government can change the level of coronavirus restrictions.

Source: Victorian Government: ‘Coronavirus (COVID-19) roadmap to reopening’

Is Webcamming Allowed?

Yes. Webcamming or other  electronically broadcast performances are allowed both in greater Melbourne and the rest of Victoria.

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

Sources and More Information

Business and industry – restrictions by industry

Extension of Declaration of State of Emergency

(expires 11 October, 2020)

Area Directions No. 8

How to Stay Safe and Well (DHHS)

What Do Medical Experts Say?

Thorne Harbour Health is Victoria’s leading health provider for LGBTI Victorians and people living with HIV. Thorne Harbour Health currently advises ALL Victorians against having casual sex. 

Read Advice Against Casual Sex

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 2020

Last updated: 1 October 2020