Decriminalisation of sex work

The Sex Work Decriminalisation Act 2022 decriminalised sex work in Victoria by:

• repealing the Sex Work Act 1994
• repealing public health offences specific to sex workers and business operators
• abolishing the licensing system
• establishing anti-discrimination protections for sex workers
• making changes to planning controls to treat sex work businesses like any other Victorian business, subject to the same rules and regulations.

These changes occurred in two stages in May 2022 and December 2023.

Sex workers and business operators continue to have the same occupational health and safety rights, duties and protections that apply in all other workplaces in Victoria. More information can be found on the WorkSafe website.

Evidence has shown that decriminalisation helps to:

• create safer working environments for sex workers
• reduce stigma and discrimination
• enhance sex worker access to care and support services
• support blood-borne virus (BBV) and sexually transmissible infection (STI) prevention efforts.

Removal of discriminatory health laws

A key aim of decriminalisation is to create a supportive enabling environment for the health and wellbeing of sex workers.

As part of the first stage of decriminalisation, several public health-related changes to the law took effect, including:

• an end to mandatory quarterly sexually transmissible infection (STI) and blood-borne virus (BBV) testing for sex workers
• repeal of offences for:
  • working as a sex worker with an STI or BBV
  • permitting a sex worker to work with an STI or BBV
  • engaging in sexual services without the use of a condom.

Evidence has shown that punitive approaches to sexual health can be counter-productive and serve as a barrier to care access. Instead, peer education about STIs and BBVs, voluntary condom use and improved access to voluntary testing and treatment are the pillars of successful STI and BBV prevention.

A 2022 needs assessment conducted by the Australian Research Centre in Sex, Health and Society found that sex workers in Victoria:

• have a high level of sexual health literacy
• have low rates of BBVs and STIs
• get tested regularly and consistently use condoms at work
• play a key role in educating other sex workers and community members about safer sex
• frequently experience occupational stigma when accessing health services.

To support voluntary testing and condom use in the transition to decriminalisation, funding was provided to expand sex worker peer education and outreach and develop anti-stigma training for health care workers.

The department has also developed three key guidance documents through consultation with sex worker organisations and other key stakeholders:

• STI and BBV prevention and management guidance for the sex industry
• Guidance for sex workers living with HIV
• Guidance for primary care practitioners providing sexual health care to sex workers

It is no longer illegal in Victoria to work as a sex worker with an STI or BBV.

This includes HIV. Advances in HIV treatment and research mean that people living with HIV can have sex without risking passing the virus on. When taken as directed, modern anti-retroviral therapy effectively reduces the amount of the virus in the blood. Levels of HIV in the blood, or viral load, can become so low that the virus can no longer be passed on to others. This is known as an undetectable viral load.

Anyone in Victoria who is diagnosed with an STI or BBV has a responsibility to take reasonable steps to prevent passing the infection on to others.

Reasonable steps will depend on individual circumstances. They can include:

• consistent condom use with a compatible lubricant
• accessing treatment as soon as possible
• follow up testing to determine if the treatment has worked
• achieving and maintaining an undetectable viral load (for HIV)
• following a health professional’s advice about what sexual activities to avoid while infectious.

Repeal of Public Health and Wellbeing Act provisions for business operators

Public health provisions for brothels and escort agencies in the Public Health and Wellbeing Act 2008 have been repealed.

The department’s STI and BBV prevention and management guidance for the sex industry includes a section for business operators. The department recommends that business operators continue to follow best-practice prevention methods such as:

• providing accurate sexual health education
• providing information about where to access voluntary STI and BBV testing
• providing free condoms in different sizes and compatible lubricant
• developing a workplace policy that supports workers to negotiate condom use with clients
• providing training on how to undertake health checks and what to look for
• ensuring clients know to expect a health check
• supporting workers to refuse or change a service for any reason, including signs of a possible infection.

Sex workers and business operators in Victoria also have occupational health and safety rights, duties and protections beyond sexual health. More information can be found on the WorkSafe website.

Business operators should be aware of recent changes to consent law under the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022. Changes include:

• an updated definition of consent
• inclusion of non-consensual condom removal, tampering or non-use as a criminal offense
• updated circumstances in which a person does not consent to an act, including
  • when there is a fear of harm
  • when there is an abuse of a relationship of authority
  • when the person is a sex worker and engages in the act under the false or misleading representation that they will be paid.

Monitoring and evaluation of the health impacts of decriminalisation

The Centre for Social Research in Health (UNSW) has been funded to conduct a five year study to monitor and evaluate the health impacts of decriminalisation. The research team will track how key indicators of sex worker health and wellbeing change over time, including sexual health and safer sex practices, mental health and experiences of stigma and discrimination.

This research will build on existing evidence from the needs assessment conducted by the Australian Research Centre in Sex, Health, and Society to inform the sex work reform process.

This high-quality evidence base will help Victoria to assess and adapt the public health response, identify gaps in service provision, and support other jurisdictions to make evidence-based policy decisions.

Citation: Macioti, Paola Gioia; DeVeau, Ryan; Millen, Miranda; McGlasson, Casey; Siangyai, Bung; Sinclair, Gina; et al. (2022). Understanding the health and social wellbeing needs of sex workers in Victoria. La Trobe. Report.