EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (Victoria) (Exemption – Sex Work Registration) Declaration 2022
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (Victoria) (Exemption – Sex Work Registration) Declaration 2022 (the Declaration). The specific provisions in the Declaration are outlined in Attachment A. The information in the explanatory statement is an aid to understanding the Declaration and should not be substituted for the Declaration.
Context and purpose
Part 3A of the Mutual Recognition Act 1992 of the Commonwealth (the MRA) provides for the automatic mutual recognition of occupational registrations (AMR). AMR will provide an entitlement for an individual to carry on an activity in a second State, under the registration covering the activity in their home State through Automatic Deemed Registration (ADR).
Part 3A of the MRA provides for the making of declarations that exclude certain registrations from ADR where a minister of a state is satisfied that the declaration is necessary because of a significant risk arising from circumstances or conditions in the declaration state, to consumer protection, the environment, animal welfare or the health or safety of workers or the public. The Legislation Act 2003 of the Commonwealth provides for the making of legislative instruments.
Summary
Through this Declaration, the Minister for Consumer Affairs, Gaming and Liquor Regulation (Victoria) has excluded two registrations from ADR for the period 1 July 2022 until the date on which the Sex Work Act 1994 (Victoria) is repealed in accordance with Part 6 of the Sex Work Decriminalisation Act 2022 (Victoria). This repeal is due on 1 December 2023. By virtue of the making of the Declaration, the Minister is satisfied that the exclusion is necessary because of a significant risk to consumer protection and the health or safety of workers. The Declaration provides an explanation of the specific risks arising from the registration in the context of the circumstances and conditions in Victoria.
Consultation
Victoria did not conduct consultation as the Minister for Consumer Affairs, Gaming and Liquor Regulation (Victoria) considered it inappropriate in the circumstances.
On 1 March 2022, the Sex Work Decriminalisation Act 2022 (Victoria) received Royal Assent. During August 2021, the Victorian Government undertook consultation with the sex work industry and key stakeholders on the proposed model for the decriminalisation of sex work in Victoria.
The licensing system which regulates the sex work industry, as prescribed by the Sex Work Act 1994 (Victoria), will be repealed by 1 December 2023. Consistent with this date, this instrument will end on the date of the repeal of the Sex Work Act 1994 (Victoria).
In the context of the impending structural reforms to the industry, which have been widely consulted on and the short timeframe for the extension, which merely maintains the status quo until 1 December 2023, consultation was not considered appropriate.
In preparing the declaration, the Minister for Consumer Affairs, Gaming and Liquor Regulation (Victoria) had regard to the expert information available and the positions of persons likely affected.
Attachment A
Details of the Mutual Recognition (Victoria) (Exemption – Sex Work Registration) Declaration 2022
Part 1 – Preliminary
Section 1 – Name
This section provides that this Declaration is to be cited as the Automatic Mutual Recognition (Victoria) (Exemption – Sex Work Registration) Declaration 2022 (the Declaration).
Section 2 – Commencement
This section provides the date on which the Declaration comes into operation. The Declaration comes into operation on 1 July 2022.
Section 3 – Authority
This section outlines the authority through which the Declaration is made. The Declaration is made under section 42S of the Mutual Recognition Act 1992 (Commonwealth).
Section 4 – Simplified outline of the instrument
This section explains that the purpose of this instrument is to exempt two specified registrations from the ADR provisions of the MRA, the application of the exclusion and the period of the exclusion.
Section 5 – Definitions
This section provides, for the purposes of this Declaration, self-explanatory definitions of the following terms:
- The Act is defined in this section as meaning the Mutual Recognition Act 1992
Section 6 – Exemptions
This section lists the specific paragraph of the MRA relied on to make the Declaration and the specific registrations excluded from ADR and the explanation of the risks.
The Declaration is made in accordance with paragraph 42S(1)(a) of the MRA, licences for sex work service providers and approved managers of a sex worker service providing business under the Sex Work Act 1994 (Victoria) (shown in column 1) is excluded from ADR because the minister making the Declaration is satisfied that there is a significant risk to consumer protection and the health or safety of workers (as outlined in column 2).
This means that an individual cannot carry on the activities authorised under these registrations in Victoria without the specific registrations. An individual may obtain the specific registrations shown in column 1 from the Local Registration Authority (LRA), the Business Licensing Authority (BLA), under Part 3 of Sex Work Act 1994 (Victoria).
In accordance with subsection 42S(2) of the MRA, this provision in the Declaration also provides a statement of the risk to consumer protection and the health or safety of workers (as shown in column 2).
The Sex Work Decriminalisation Act 2022 (Victoria) repeals the Sex Work Act 1994 (Victoria). This includes the licensing and approval schemes for sex work service providers and managers, which will be repealed by 1 December 2023. Until that legislation takes effect the existing framework for regulating sex work in Victoria will continue to apply.
The regulation of sex work varies vastly across jurisdictions in Australia, with varying levels of regulation and safeguards. In Victoria, the Sex Work Act 1994 (Victoria) currently permits sex work if the brothel or escort agency business operator is licensed. Sex workers who work at licensed brothels or escort agencies do not require any form of licence, approval or registration. This regulatory environment is not commensurate with the environment across other jurisdictions.
Whilst Victoria continues to work to a decriminalised model, abolishing the licensing and approval system isn’t deregulating the industry. In the lead up to commencement of the reforms, the Victorian Government is implementing a number of non-legislative mechanisms which will support the health and safety of sex workers, these include upskilling of key regulatory agencies such as WorkSafe Victoria, development of an appropriate public health framework, and education and support to industry and sex workers to transition to decriminalisation.
The ability to work with industry during transition and the efficacy of these transitional activities will be compromised by the entrance of an unknown number of industry participants through deemed registration at this time.
Enabling automatic deemed registration for sex work service providers and approved managers during and/or prior to the implementation of these mechanisms which support the repeal of the Sex Work Act 1994 (Victoria) would create significant risk to consumer protection and the health and safety of workers.
The following table replicates the provisions in the Declaration.
Exemptions for the purposes of paragraph 42S(1)(a) | ||
Item | Column 1 Registration | Column 2 Statement of risk |
1 | Licences for sex work service providers under Part 3 of the Sex Work Act 1994 (Victoria). | Enabling automatic deemed registration for sex work providers prior to the repeal of the Sex Work Act 1994 (Victoria) will create a significant risk to consumer protection and the health and safety of workers because of the extensive change currently underway in this sector. The Victorian Government is implementing a number of activities to support the health and safety of sex workers, including an education and support program for industry and sex workers to transition to the new arrangements. The ability to work with industry during transition and the efficacy of these transitional activities will be compromised by the entrance of an unknown number of industry participants through deemed registration.
|
2 | Approved manager of a sex work service providing business under Division 5 of Part 3 of the Sex Work Act 1994 (Victoria). | Enabling automatic deemed registration for approved managers prior to the repeal of the Sex Work Act 1994 (Victoria) will create a significant risk to consumer protection and the health and safety of workers because of the extensive change currently underway in this sector. The Victorian Government is implementing a number of activities to support the health and safety of sex workers, including an education and support program for industry and sex workers to transition to the new arrangements. The ability to work with industry during transition and the efficacy of these transitional activities will be compromised by the entrance of an unknown number of industry participants through deemed registration. . |
Subsection 4 provides a self-repeal date for section 6. The Declaration will sunset on the date which the Sex Work Act 1994 (Victoria) is repealed.
Melissa Horne
Minister for Consumer Affairs, Gaming and Liquor Regulation