The number of clients of sex workers during any given year is not known. Three Australian studies have found that approximately one in every six or seven men admit to having paid for sex at least once 6. Rissel found 2% of men surveyed reported paying for sex in the last year. Woodward et al go further by ‘say[ing] with confidence that at least one in every 30 men has sex with a sex worker during any given year and there are some indications that the true figure is substantially higher’.
Sex workers and their clients do not constitute a ‘discrete’ section of the population. They are members of the general community. Consequently sex work-related laws, regulations and practices are relevant to general practice and to health care professionals’ duties regarding the sexual transmission of HIV. In that context, it is important to note the extraordinary adoption of safe sex practice as an occupational health and safety response in the Australian sex industry, and consequently the minimal risk of HIV transmission at a population level.
Sex work laws and regulations are state based with assorted sex work practices variously decriminalised, legalised or criminalised across different jurisdictions. Some legislation is enforced: other is infrequently applied. Importantly, in addition to sex work related laws, HIV-related laws relating to non-commercial sex also usually apply to sex during commercial sexual encounters.
Specific sex work laws relating to HIV infection
Although there is no overt mandatory testing of sex workers in Australian states and territories, three jurisdictions (Australian Capital Territory, Queensland and Victoria) operate what might be considered a de facto system of mandatory testing of sex workers with resulting exclusion from the sex industry (or sections of it) if a worker refuses to be tested for sexually transmitted infections, including HIV. The structure of legislation and guidelines combine to ensure brothels will only employ sex workers who undergo prescribed tests:
- In Queensland, a licensee or approved manager of a licensed brothel must not permit a sex worker to work if infected with an STI (including HIV). It is a defence if the licensee or approved manager believed on reasonable grounds that the person had regular medical examinations and was not living with HIV (Section 89, Prostitution Act 1999). Regular medical examinations are defined as occurring every 3 months (Section 9, Prostitution Regulations 2000).
- In Victoria, it is an offence to allow a sex worker with an STI (including HIV) to work in a brothel, escort agency or other business. It is a defence if the person reasonably believed that the sex worker was undergoing regular health checks (quarterly blood tests and monthly swab tests) and reasonably believed the person did not have an STI (Section 19, Prostitution Control Act 1994). Of note, section 161 of the Public Health and Wellbeing Act 2008 requires brothel and escort agency proprietors to take reasonable steps to ensure that evidence of a sex worker’s attendance at a medical examination or the results of the examination are not used to induce a client to believe a sex worker is free from HIV infection. Private sex workers cannot work while they have an STI, including HIV (Prostitution Control Act, section 20), so must also adhere to monthly testing (as a defence should transmission of an STI occur).
- In the Australian Capital Territory, each owner and operator of a brothel or escort agency must take reasonable steps to ensure a sex worker does not provide commercial sexual services if he or she has an STI, including HIV (Section 24, Prostitution Act 1992). ‘Reasonable steps’ is not defined but is generally understood by owners and operators to mean that they must guarantee their workers are routinely tested. The Australian Capital Territory also requires registration of private workers. The ACT Prostitution Act also states (at section 25) that a person shall not, at a brothel or elsewhere, provide or receive commercial sexual services if the person knows or could reasonably be expected to know that he or she is infected with a sexually transmissible infection. Notably, that section also makes it illegal for a client with HIV (or another STI) to receive commercial sexual services.
In 2008, a man based in the Australian Capital Territory was found guilty of working as a sex worker while HIV positive (an offence under the Prostitution Act 1992). The public was alerted by media using incorrect and inflammatory headlines such as ‘Sex worker purposely spread STD’ (Jenkins4 2008). Early stories ran with the sensational estimate that as many as 250 people had been put at risk. In fact, no evidence was presented to suggest the man had practised unsafe sex or transmitted HIV (and consequently those charges were not laid).
The consequences of that prosecution and associated media included a drop in sexual health testing by sex workers from an average of 30 sex workers each fortnight to less than two a fortnight through the Sex Workers Outreach Project of the Australian Capital Territory mobile sexual testing service. Decreased testing rates were a result of fear that standard public health protocols had been abandoned and that other sex workers could get caught up in a similar 'media circus'. (Jeffreys5 2009).
GP deregistered for writing false medical certificates
In 2008, a Victorian doctor was deregistered by a Panel of the Victorian Medical Practitioners Board for writing some 985 Medical certificates in the names of 475 sex workers (which does not necessarily reflect the number of sex workers involved) without examining them.
See Medical Practioners Board of Victoria (2008) Dr Cindy Yau Fung Lee Wong  1 MPBV 13.
1Sex Services Premises Planning Advisory Panel. Sex services premises: Planning guidelines. Sydney: NSW Department of Planning, 2004. Available at http://www.scarletalliance.org.au/library/ssppg_04.
2Prostitution Law Reform Working Group, Prostitution Law Reform for Western Australia, Office of the Attorney General, Government of Western Australian. Sydney; 2007. Available at http://www.scarletalliance.org.au/library/wa_lwp_07.
3Victorian Medical Practioners Board (2008) Dr Cindy Yau Fung Lee Wong  1 MPBV 1.
4Jenkins, M. (2008) ‘Sex worker purposely spread STD’ The Australian. 18 January 2008.
5Jeffreys J (2009) 'Sex work: criminalisation and control' in Cameron S & Rule J (eds) The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality, National Association of People Living with HIV/AIDS. Available athttp://napwa.org.au/papers/2009/the-criminalisation-of-hiv-transmission-in-australia-legality-morality-and-reality.
6Rissel CE, Richters J, Grulich AE and de Visser RO (2003). Sex in Australia: ... Experiences of commercial sex in a representative sample of adults. Australian and New Zealand Journal of Public Health, 27, 2. Pitts MK, Smith AMA, Grierson J, O’Brien M and Misson S (2004). Who Pays for Sex and Why? An Analysis of Social and Motivational Factors Associated with Male Clients of Sex Workers. Archives of Sexual Behavior, 33, 4. Woodward C, Fischer J, Najman J, Dunne MP. Selling Sex in Queensland 2003. Available at here.