Hall, Courtney --- "Red Light Districts and Black Letter Law: How Sex Worker Collectives Reshape the Balance of Power Created by Modes of Legal Regulation" [2024] UNSWLawJlStuS 17; (2024) UNSWLJ Student Series No 24-17

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RED LIGHT DISTRICTS AND BLACK LETTER LAW:

HOW SEX WORKER COLLECTIVES RESHAPE THE BALANCE OF POWER CREATED BY MODES OF LEGAL REGULATION

COURTNEY HALL

I INTRODUCTION

In the morning, the women of the Saheli sex workers collective get ready for work. This process is mostly out of sight, and only betrayed by the clap of sandals down marble hallways. They poke their heads around doorframes, share trays of tea and fuss over who does or does not want sugar. ‘They are sisters,’ Tejaswi tells us. Tejaswi is the director of the Saheli HIV/AID Sex Workers Collective – a community-based organisation that operates in Pune’s red-light district to provide medical and pastoral care services to sex workers. Saheli is comprised of and led by sex workers whose experiences inform the collective’s needs-based approach to advocacy and care.^[1]

More than just a slogan, the notion that ‘sex work is real work’ has been mobilised by collectives as a labour organising tool, allowing sex workers to make claims to the State and demand their involvement in regulatory decision making. By maintaining a watchful eye and strong arm over the sex work landscape, collectives are well positioned to create and implement creative solutions addressing the present needs of sex workers. This article will explore how sex worker collectives reshape structures of power associated with the legal regulation sex work in Australia and India.

The first part will overview the narratives of sexual exploitation empowerment which have thus far inform theoretical and legal treatments of sex work. This section will survey the modes of legal regulation pursued by the Indian and Australian government, to highlight how the State’s approach to regulating sex work effects the working conditions and social pressures on sex workers. The second part will discuss labour perspectives on sex work and compare the operation and objectives of Pune’s Saheli collective, New South Wales’ (‘NSW’) “Sex Worker Outreach Project” (‘SWOP’) and the Federal Scarlett Alliance. By situating these collectives within the events giving rise to their mainstream recognition, this part will demonstrate how sex worker collectivise around their identity as workers to make claims to the State and invert the power balance established by legal regulation. Finally, this article will canvas the potential for sex worker collectives to absorb the functions of labour unions, thereby strengthening their collective bargaining power vis-à-vis brothel owners. This section concludes with an explanation of the practical and legal challenges which surround the sex work labour union movement.

II NARRATIVES OF EXPLOITATION AND EMPOWERMENT

A Theoretical Perspectives on Sex Work

The idea that ‘prostitution is oldest profession in the world’ suggests that there has always been some relationship between sex and money.^[2] However, feminist theories disagreement on this point insists that it is not that simple. Sex workers’ autonomy and capacity to consent to is consistently a flashpoint of debate, with proponents occupying diametrically opposed standpoints.^[3]

The first position, expressed in the polemic articles of radical feminists, finds that sex work can never be rationally consented to since sex workers are, without exception, victims of patriarchal exploitation and oppression.^[4] From this perspective, the term ‘sex work’ is itself a misnomer which wrongly insinuates that consent can vitiate forms of gendered violence within the political economy. As a logical consequence, all aspects of sex work should be abolished and quarantined from other acceptable notions of ‘sex’ and ‘work’. In opposition, liberal feminists take a somewhat contractarian view, reasoning that the choice to pursue sex work is, or can be, rational even if motivated by economic necessity.^[5] This view moors itself to liberal ideals of “individualism, equality of opportunity and the free market of sexual life”, to suggest that the State should take the same interest in regulating sex work as it does with any other business transaction.^[6]

The time dedicated to mediating these debates has not, however, reduced the scope of disagreement. Finding a middle ground between these perspectives might prove impossible since choice and coercion are malleable concepts that straddle the vast continuum of experience.^[7] Even if either view could convincingly argue the objectivity of its interpretation, sex work so clearly crosscuts between and beyond conceptions of gender in the political economy that its inclusion in feminist knowledge stretches the theory’s working commitments. Take for example a theorised interaction between brothel-based sex work, liberal and radical perspectives, and feminist conceptions of the public/private divide: is this work public or private? If it is private, should liberal feminism be concerned with the State regulating transactions in private sphere? Or if gendered violence has no spatial characteristics, why would radical feminists care about the public commercialisation of sex, when you could get similar, if not the same, forms of exploitation at home for free?^[8]

This exercise is not to suggest that either perspective is misinformed, nor that sex work is wholly incompatible with feminist theory. What it does show however, is that theory might not adequately manage or extinguish the polyvalence of sex work. As the next section will show, sex work’s multiplicity has troubled regulatory schemes in the Australian and Indian context.

B Legal Models for Regulation

Despite sex work’s tenuous connection to the vocabulary of theory, the impulse to confine and regulate sex work has thus far proven irresistible to lawmakers. This tendency has seen the emergence of four distinct frameworks for regulation: the prohibition, decriminalisation, social control, and pro-work models.^[9]

1 India and the Prohibition Model

India’s framework for regulating sex work resonates with the prohibition model.^[10] After ratifying the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others, India’s Parliament enacted the Immoral Traffic (Prevention) Act, 1956 (‘ITPA’).^[11] The ITPA does not criminalise the act of offering consensual sex for money, but instead proscribes all transactions surrounding or related to the trade of commercial sex. This includes sex workers soliciting and/or undertaking of sex work in a public place, and further implicates those who take part in the business structure of sex work, either by knowingly living on the earning of a sex worker or knowingly allowing a sex worker to use a premises as a brothel.^[12] As a result, sex work is only lawful if solicited and conducted in private spaces.

Importantly, the ITPA defines ‘prostitution’ to include any ‘sexual exploitation or abuse’ of a person for commercial purposes.^[13] The does not differentiate between trafficked persons and those engaging in voluntary adult sex work, on the view that all sex work is inherently exploitative.^[14] However, the ITPA’s invocation of the ‘exploitation approach’ to prohibition does not explicitly accord itself with the radical feminist view that prostitution is a serious form of male violence against women. Instead, sex work is framed as “the manifestation of ... man’s failure to control his animal will within the limits of the institution of marriage”.^[15] Critically then, the ITPA’s view that sexual exploitation is inherent in both voluntary and involuntary sex work utilises a false tautology to justify prohibition in defence of the martial institution.

But despite the formal prohibition of all aspects of sex work, lawmakers’ willingness to “tolerate [sex work] as a necessary evil” allows for the continued operation of brothels, albeit in a precarious legal space.^[16] The lack of political will among police and government official to strictly enforce the ITPA has seen to the emergence of an informal zoning system that permits the discrete indoor practice of sex work. This however does not prevent police harassment of sex workers, with ‘random’ brothel raids placing sex workers at the whim of the State’s machinery. Interestingly, sex workers formally charged with an offence under the ITPA are not treated criminals per se, but ‘fallen women’ in need of rehabilitation.^[17] As such, the IPTA imposes indefinite detention in ‘protective homes’ as a purportedly benevolent alternative to jail time.^[18] Clearly then, a conception of sex workers as victims of exploitation permeates India’s prohibition model.

2 Australia and the Decriminalisation, Social Control, and Pro-work Models

Although each Australian jurisdiction adopts a different model of regulation, the legislation broadly agrees on one thing: it is not always illegal to sell sex.^[19] The conflicting approaches of NSW, Queensland, and Western Australia (‘WA’) illustrate the diversity of opinion within a political community that otherwise takes a laissez-faire view of sex work.^[20]

NSW was the first Australian jurisdiction to adopt the decriminalisation approach, permitting most forms of voluntary adult sex work. Local councils are the primary regulators of commercial sex premises and are responsible for imposing various environmental controls to minimise the adverse impacts.^[21] By contrast, Queensland imposes a licensing system on some sex work businesses, permitting them to operate notwithstanding the criminalisation of sex work. The licensing scheme legalises and tolerates certain forms of sex work so long as operators meet legislated probity standards.^[22] This approach treats sex work as an undesirable reality requiring containment in accordance with the ‘social control’ approach.^[23] Finally, all commercial sex premises remain illegal in WA, but brothels and escort agencies continue to operate in light of official non-prosecution guidelines.^[24] These guidelines codify social tolerance towards sex work, so much so that the Kalgoorie red light district has operated openly on the same street as the local police station since 1902.^[25]

Although these regulatory frameworks express variation in social and political wills regarding the management of sex work, the substance of each framework is in a constant state of flux, with momentum generally towards decriminalisation.^[26] In February 2024, the Queensland government tabled a Bill to decriminalise sex work by removing specific offences from the Criminal Code and repealing the Prostitution Act.^[27] These reforms are underscored by the prevailing view that decriminalisation is the shortest route to eliminating the choice between working safely or working legally.^[28] This view accords with theoretical consensus that decriminalisation brings sex work within the auspices of labour regulation, allowing sex workers to access legislated worker’s rights and safety standards.^[29]

But beyond supressing ‘underground’ crime associated with sex work, the theory that decriminalisation produces safer working conditions has not been adequately tested in Australia.^[30] The existing body of empirical studies into labour practices in NSW brothels produce conflicting accounts of the benefits of decriminalisation. For example, Sullivan’s comparative survey of brothel working conditions in NSW and Queensland concluded that decriminalisation conferred relatively “better outcomes” by “moderat[ing] the power of sex-business operators”.^[31] However, Orchiston’s field interviews on the same topic found that fair minimum working conditions were not met in either state, but despite their inclusion in the purview of the generalist workplace safety inspectorate, NSW brothels were less likely to comply with Work Health & Safety (‘WHS’) laws because of limited regulatory engagement with the sex industry.^[32] The reluctance to enforce minimum safety standards confirms the observation that decriminalisation frameworks are coupled with an ‘ambivalence’ towards the legitimacy and legality validity of sex work as work.^[33]

III SEX AS WORK: COLLECTIVISING AS WORKERS

A Labour Perspectives on Sex Work

Work is a complex and multifactorial subject which requires the State to map out and respond to a range of socially constructed, legal relationships. As discussed in the previous section, sex work has, thus far, been treated as a plaything of contemporary feminists and lawmakers. As a result, conflicting subjective assessments on the quality and social value of sex work crosscut against one other, multiplying the axes along which sex workers are surveilled, regulated and controlled. However, these assessments rely on an evaluation of the inherent nature of sex work, rather than the manner in which the work is structured. Whereas discourse on the latter consideration has allowed proponents to “create their own prostitute” and devise regulation managing their actual or hypothetical vulnerability, focus on the structural and environmental aspects of sex work necessarily draws attention to the labour dimension of sex.^[34] In other words, sex work as work.

A labour perspective prizes open analysis of intersecting factors which shape sex workers’ experience in the workplace and in society as a whole. These factors include identities such as race, ethnicity, gender, class, and caste, as well as contextual elements like the availability of economic alternatives, the (il)legality of sex work, and the degree of managerial responsibility exercised in the work environment. From this perspective, sex workers’ mobilisation around their shared identity as workers offers an alternative to other prevailing characterisations which view sex workers as either potential criminals, hapless victims of sexual violence, or some combination of the two. The identity of worker also has a diagonal quality, able to intersect and cut through these dominant perspectives. Importantly, this approach does not call into question the self-determination of sex workers, but instead takes note of the individual, cultural and economic elements which constitute work. It is then a misnomer to assume that sex workers ‘sell their body’. Instead, it the sale of embodied labour that makes it necessary and appropriate to consider sex work as work, and thus a legitimate beneficiary of legal protection.

This perspective is captured by the pro-work regulatory approach which calls for the extension of employment and human rights laws to sex workers. Doing so would align the regulation of sex work with conditions outlined in international instruments such as the International Covenant on Economic, Social, Cultural Rights, which recognises the right to work and obliges the States to ensure that such work is under ‘just and favourable conditions’, with the right to form and join trade unions.^[35] The pro-work approach necessarily runs alongside a partial decriminalisation regime which permits all aspects of the voluntary adult sex, while still proscribing and harshly penalising those responsible for the trafficking or forced involvement of children in the sex trade.^[36]

B Collectives in a Contradictory State

Having thus far wedged sex work between regimes which distain, partially tolerate, or sustain ambivalence towards its practice, the pro-work model may seem a far cry from the modes of regulation currently deployed by the State. Nonetheless, national responses to the HIV crisis are illustrative of the extent to which the State is reliant on and therefore willing to co-operate with sex workers as workers. Although Australia and India experienced the advent of the HIV epidemic differently, in both contexts, sex workers were treated as vectors of disease in law and discourse.^[37] Against this treatment, sex worker collectives were able to leverage their knowledge and lived experience to demand involvement and decision-making power in working with the State to prevent HIV transmission.

The use of biopower to regulate Indian sex workers bodies dates back to the 1860’s, when the British Colonial State introduced the Contagious Diseases Act. This Act sought to prevent the spread of venereal diseases to British soldiers, by mandating medical examinations and detention for sex workers.^[38] Created in a moment of empire, the long colonial shadow cast by this law covers the Indian government’s response to the HIV epidemic. Starting in the mid-1980’s, public health campaigns identified sex workers as a group ‘at risk’ of HIV infection, resulting in increased police surveillance and harassment in red-light districts.^[39] Against these pressures, sex worker organisations like the Saheli collective emerged as an informal site of labour organising, taking the lead in mobilising culturally appropriate education, STI testing, and condom distribution. Upon realising that managing transmission requires more than ‘theoretically based’ government intervention, NGOs like the Gates Foundation’s Avahan program began infusing resources into sex worker organisations.^[40] On the instruction of sex worker collectives, the Avahan program recognised sex workers as workers within the informal labour market.^[41] This characterisation has fed into the program’s engagement with State governments, thereby legitimising sex workers claim to collective identity as workers, and placing them in positions of power and decision making in the administration of HIV prevention strategies.^[42]

It is important to note that collectives like Saheli were not formed to interact with and address the State and transnational NGOs. The precarious illegality of street and brothel-based sex work has long demanded that sex workers collectivise and conspire to address forms of exploitation in the red-light district.^[43] The fruits of these efforts remain unseen by the public but have contributed to the development of normative practices within brothels, allowing workers to eject violent customers or those who violate the terms of service, and providing sex workers alternative means of work outside of brothels. Nonetheless, the inversion of power caused by the HIV epidemic opened a new discursive space in which sex workers could leverage their participation in programs promoting the ‘social good’ when negotiating with the State and civil agencies.^[44]

This accumulated bargaining power came to use in 2006, when the Indian Parliament tabled reforms to the ITPA, repealing the offence of solicitation and inserting a new provision seeking to criminalise visiting a brothel for the purpose of sexual exploitation of a trafficked person.^[45] Although the proposed model of asymmetric discrimination formally threatens those seeking out commercial sex, in substance, the criminalisation of demand drives the red-light industry further underground, threatening the livelihoods and safety of sex workers.^[46] These concerns, alongside the reforms obstruction of effective HIV/AIDs programs were raised by sex worker collectives in a Select Committee examination, and the Bill ultimately lapsed.^[47]

More recently, the Indian Supreme Court has positively recognised sex worker’s collective claim as ‘workers’, by finding that ‘sex work is a profession’ and that “sex workers are entitled to equal protection of the law”.^[48] Judicial acceptance of sex workers’ entitlement to a life of dignity as guaranteed by art 21 of the Indian Constitution, seals in law the State’s engagement with sex workers not as criminals, but equal citizens.^[49] Thus, by taking the hand extended to them during the HIV crisis and pulling it in favour of self-governance, sex workers are empowered to claim definitional authority. Despite maintaining ‘HIV/AIDS’ in their name, the declining public interest in HIV/AIDS prevention has allowed the Saheli collective to focus resources on projects improving working conditions and advancing sex workers civil rights.^[50]

Similarly, the HIV crisis induced the formation of the Scarlet Alliance, the current peak body for sex worker advocacy in Australia. In 1989, the Scarlet Alliance started its life as a trust organisation, unifying existing state and territory sex worker collectives to gain entry to the Australian Federation of AIDS Organisations, and receive federal funding needed to mobilise HIV prevention strategies.^[51] Beyond unifying goals and co-ordinating pathways for sharing resources among constituent branches, the Scarlet Alliance has challenged state and territory governments’ reluctance to fund regional sex worker organisations in their own names.^[52] Since then, the Scarlet Alliance has taken on a greater advocacy role, representing its constituent sex workers and collectives in government negotiations and law reform proposals.^[53] As Australian jurisdictions move towards decriminalisation, the Scarlet Alliance’s appeals to the government are increasingly made in the tenor of human rights protection, urging compliance with international instruments to place Australia’s regulatory approaches broadly in line with the pro-work model.^[54] Even when falling short of decriminalisation, these rights-based appeals have informed the removal of discriminatory legislation mandating quarterly STI/HIV testing for sex workers in Victoria and Queensland.^[55]

At the State and Territory Level, regional collectives like NSW’s SWOP operate as functional limbs to the Scarlet Alliances advocacy work.^[56] Prioritising community engagement and self-governance, SWOP delivers direct service provisions to sex workers, including outreach, education, and personal protective equipment.^[57] However, like Saheli, SWOP’s government funding is nominal and tied to their engagement with HIV/STI prevention programs.^[58] These constraints force SWOP to prioritise competing interests among their constituents – a task which is made considerably more difficult by the transient and diffuse nature of sex work in NSW. Unlike Pune’s red-light district which consolidates majority of the cities sex worker population, sex work is geographically and occupationally fragmented in NSW. SWOP is then challenged to unify, and respond to workers across brothels, escort services, OnlyFans, and other emerging forms of work.^[59] The NSW government’s ambivalent, decriminalisation approach does not challenge SWOP’s assertion that ‘sex work is real work’. In fact, it does not care. By regulating brothel-based work via ordinary environmental planning and WHS laws, the State claims to treat the sex work as formally equal to other industries. SWOP is then left to ‘pick up the slack’ left by unwilling regulators, dealing with sex workers claims of managerial abuse and unsafe workplace practices.^[60]

Demonstrated in different modes, a comparison of Indian and Australian sex worker collectives demonstrates how sex work inhabits a uniquely contradictory position to the State. Whether characterised in law and discourse as criminals or vectors of disease, the State is nonetheless reliant on the sex worker community to achieve its policy goals. In both examples, public health campaigns wanting to target sex workers as a ‘high risk’ group challenged the State to recognise sex workers as workers.^[61] Nonetheless, the capacity of sex worker collectives to narrate these claims to identity foregrounds their role in reshaping the balance of power sustained by modes of legal regulation.

IV WHY NOT UNIONISE?

Sex worker collectives have emerged as an informal mode of labour organising and collective bargaining, enabling workers to make demands to the State and insist on being involved in decision-making. What then distinguishes sex worker collectives from traditional labour unions? In some ways, sex worker collectives’ advocacy falls within the register of ‘collective bargaining’ contemplated by the Conventions of the International Labour Organisation.^[62] Through their advocacy, sex worker collectives have demonstrated an interest in addressing unequal power relations and facilitating workers self-determination against adverse modes of legal regulation. Consequently, organising with the object of negotiating improved working conditions might seem a natural progression tipping the scales in favour of sex workers industrial rights. This could include the establishment of award wages, the enforcement of applicable minimum labour standards and access to employment benefits like paid leave.

Importantly, sex worker collectives have thus far directed their attention towards the State’s treatment of sex workers, leaving relatively untouched the relationship between sex workers and brothel owners. A pivot towards labour unionism would therefore engage modes of bargaining directed towards the proprietors of commercial sex, rather than the state itself. However, the Australian context provides instructive examples of the practical and legal challenges preventing this turn in focus.

The first (and only) attempt to integrate Australian sex workers with a registered trade union occurred in 1995, when a sex worker recruitment officer was appointed to the NSW Liquor, Hospitality and Miscellaneous Workers Union (‘LHMWU’).^[63] During sex workers short lived participation in the union, the LHMWU negotiated 13 unfair dismissal settlements for topless dancers and assisted with one action heard before the NSW Industrial Relations Commission.^[64] Despite its industrial success, unionist’s responses were mixed, with one member protesting sex workers’ inclusion on the basis that they “don’t want to be known as the best ‘fucking’ union in the country”.^[65] A later attempt to involve sex workers in the organised labour movement occurred through the ‘Sex Worker Union’, which formed to advocate the creation of a Sex Industry Modern Award and make submissions to the Senate Standing Committee’s Inquiry into the Fair Work Bill 2008.^[66] Although it is unclear why these unions dissolved, a survey of the practical and legal challenges attending sex worker unionism hint at the present incongruence of sex work collectives with the objects of traditional labour unions.

A Practical Challenges

Collective bargaining with the object of enforcing applicable labour protections against brothel owners is practically challenging, with most risks borne on workers. First, where sex workers understand their work as illegal or immoral, they are unlikely to view themselves as having labour rights.^[67] This phenomenon exists irrespective of sex work’s jurisdictional (il)legality and affects worker’s willingness to provide their personal information for union membership. The possibility that sex workers personal information could be misused to ‘out’ workers to their family, friends and the police, contributes to strong scepticism over the intentions of sex worker unions. Even if unions could guarantee the anonymity of members, sex workers still risk being ‘outed’ by brothel managers for their involvement in collective bargaining or labour law enforcement actions adverse to business interests.

Secondly, sex work is deeply enmeshed with the informal economy. As a widespread practice, brothels either do not keep proper financial records or refuse to provide workers with payslips, timesheets, or other financial accounts.^[68] On the one hand, this practice insulates brothel owners against the risk of litigation by raising evidentiary burdens for sex workers and their unions when mounting industrial claims against their employer. But to some extent, the informality of sex work is embraced by workers as allowing them to generate income outside the regulatory purview of the State.^[69] In Australia for example, being paid ‘cash-in-hand’ allows sex workers to selective declare their income to Centrelink and the Australian Tax Office, entitling them to financial benefits that offset the unpredictability of earnings from sex work.^[70] Similarly, in India, voluntary adult sex work disproportionately attracts workers who are often displaced from their home and must generate income to support themselves or their dependents.^[71] Thus, where there is a desire to remain in the informal economy, sex workers are unlikely to welcome labour unions’ intention to bring sex worker closer to the regulatory purview of the State.

Finally, the transient and geographically dispersed nature of sex work contributes to its characterisation as a ‘slack’ labour market.^[72] Depending on the supply of workers and degree of managerial control possessed by brothel owners, workers efforts to withhold labour through traditional union strikes could result in sex workers being replaced by less demanding substitutes. This specific power imbalance drives competition between workers and incentivises deference to managerial authority in order to remain on the roster. Clearly then, the conditions needed to create and sustain a culture of sex worker labour unionism remain uniformly difficult to achieve.^[73] Although sex workers have demonstrated the intention and ability to collectivise, their collective efforts are predominantly directed towards obtaining self-governance and definitional authority in actions recalibrating the balance of power vis-à-vis the state.

B Legal Challenges

Even if there was sufficient will to organise within the confines of labour union form, the contractual arrangements underpinning sex work remain a key battle ground and means through which brothel owners or interested third parties can legally obfuscate collective action claims.^[74] The legal relationship between sex workers and brothel management is typically organised in two forms – as employees or independent contractors.^[75]

In Australia, the characterisation of brothel owner-worker relationship along contractual lines effects the availability of collective bargaining and statutory minimum labour standards. Put simply, the Fair Work Act facilitates collective bargaining only for employees.^[76] Conversely, independent contractors have a lesser right to collective action, and are required to obtain the permission of the Australian Competition and Consumer Commission before undertaking collective bargaining with brothel owners.^[77] However, given the variation in workplace practice, it is often not self-evident which of these categories a particular brothel-worker relationship falls into. Orchiston’s survey of brothel-worker contracts and workplace policies demonstrates the extent of this confusion. These contracts often contained terms either outright denying that the workers are employees or affirm their status as an independent contractor.^[78] Despite the ‘arm’s length’ treatment of sex workers in contract, various codes of conduct annexed these agreements contained employee-like conditions antithetical to contracting, requiring the worker to arrive to rostered shifts, perform non-sexual duties on the premises and conform with specified dress, grooming and behavioural requirements.^[79]

When determining whether a worker is an employee or contractor, Australian courts are required to consider the ‘totality’ of the relationship between the parties, alongside the working arrangements and circumstances of the matter.^[80] But despite the sizeable body of case law fleshing out the indicia of employment, only two Australian industrial cases have considered its application to sex workers. In Phillipa v Carmel the relationship between a live-in sex worker and the brothel madam was considered one of employment, albeit ‘not [to be] a relationship which neatly fits within the sorts of analyses which have been used in the past to distinguish between a contractor and an employee’.^[81] Conversely, in Lucy Helft v Top of Town, the absence of a direct financial relationship between the parties contributed to the FWC’s finding that the applicant sex worker was an independent contractor.^[82] But to some extent, the absence of a strong financial relationship between the parties is characteristic of the informality of sex work itself. Therefore, on another view of the ‘totality’ of the relationship, this factor might only speak equivocally to the workers characterisation as an independent contractor.

The dearth of case law considering whether and to what extent sex workers are rights bearing subjects of labour regulation makes it considerably more difficult for collectives to identify with and organise as labour unions. The Australian context demonstrates the ‘perfect storm’ of practical and legal challenges which leave sex workers un-unionised and award free. In view of these practical and legal challenges, it is clear that the identity of worker is intentionally political and amorphous, identifying with a set of values and practices, rather than a specific legal relationship. Mobilising around the somewhat vague, albeit value laden identity of ‘worker’ allows sex worker collectives to focus on the prerogatives of the pro-work agenda, without necessarily embroiling themselves in the legal, industrial, and ideological disputes which surround the notion of labour. Indeed, organising with the objectives of labour unions would require sex worker collectives to narrow their claim and direct their focus towards brothel owners, rather than the State.

V CONCLUSION

By mobilising around their shared identity as workers, sex worker collectives recalibrate the balance of power sustained by legal modes of regulation. Although the landscape of sex work is invariably shaped by modes of legal regulation, collectives like Saheli, the Scarlett Alliance and SWOP level the playing field by advocating for a pro-work approach to sex work. By leveraging their position as workers, collectives have incited progress towards the mainstream recognition of sex workers as rights bearing subjects of the State. Although it seems unlikely that sex worker collectives will absorb the functions of labour unions, their work has proven invaluable in narrating a new chapter of feminist advocacy.

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^[1] Saheli HIV AIDS Karyakarta Sangh Pune, ‘What We Do’, Saheli HIV AIDS Karyakarta Sangh Pune (Web Page, 2024) <https://sahelisangh.org/index.php/what-we-do/>.

[2] Svati P Shah, ‘Sex Work in the Global Economy’ (2003) 12(1) New Labor Forum 75.

[3] Alice Orchiston, ‘Precarious or Protected? Evaluating Work Quality in the Legal Sex Industry’ (2016) 21(4) Sociological Research Online 173.

[4] Catharine A MacKinnon, ‘Prostitution and Civil Rights’ (1993) 1(1) Michigan Journal of Gender and Law 14.

[5] Katie Beran, ‘Revisiting the Prostitution Debate: Uniting Liberal and Radical Feminism in Pursuit of Policy Reform’ Minnesota Journal of Law and Inequality 30.

[6] Ibid 31.

[7] Prabha Kotiswaran, ‘Has the Dial Moved on the Indian Sex Work Debate?’, Economic and Political Weekly (online, 2019) <https://lawsofsocialreproduction.net/wp-content/uploads/2019/06/cl_liv_22_010619_prabha_kotiswaran.pdf >.

[8] Sreyashi Ghosh, ‘Beyond Spaces: Debunking Public/Private Divide in Understanding Violence Against Women in India’ (2017) 1(1) International Journal of Gender Studies 76.

[9] Jaya Sagade and Christine Forster, ‘Recognising the Human Rights of Female Sex Workers in India: Moving from Prohibition to Decriminalisation and a Pro-Work Model’ (2018) 25(1) Indian Journal of Gender Studies 30.

[10] Ibid.

[11] Immoral Traffic (Prevention) Act, 1956 (‘ITPA’).

[12] Ibid s 7, 4.

[13] Ibid s 2(f).

[14] Sagade and Forster (n 9) 34.

[15] Law Commission of India, The Suppression of Immoral Traffic in Women and Girls Act, 1956 (Report No 64, March 1975) [1.5].

[16] Ibid [1.7].

[17] Gaurav Jain v Union of India and Ors [1997] 745–54 SCC 1950.

[18] ITPA (n 12) art 19(3); Krishna P Akshay, ‘The Rehabilitation of Sex Workers in India with a Special Emphasis upon the Right to Life of an Individual under Article 21 of the Indian Constitution’ (2023) 4 Indian Journal of Law and Legal Research 9.

[19] Victoria Nagy and Anastasia Powell, ‘Legalising Sex Work: The Regulation of “Risk” in Australian Prostitution Law Reform’ (2016) 28(1) Current Issues in Criminal Justice 1.

[20] Ibid.

[21] Orchiston (n 3) 3.

[22] Barbara Sullivan, ‘When (Some) Prostitution Is Legal: The Impact of Law Reform on Sex Work in Australia’ (2010) 37(1) Journal of Law and Society 85.

[23] Sagade and Forster (n 9) 31.

[24] Criminal Code Compilation Act 1914 (WA) s 190; Prostitution Act 2000 (WA) s 14; Basil Donovan et al, The Sex Industry in Western Australia: A Report to the Western Australian Government (Report, 2010) 32–4.

[25] Jarrod Lucus, ‘“You Can’t Make Money in Kalgoorlie Anymore”: 115-Year-Old Brothel the Last Standing in WA’s “Wild West”’, ABC News (online, 8 July 2019) <https://www.abc.net.au/news/2019-07-09/brothel-closure-leaves-last-bordello-on-historic-hay-street/11289954>.

[26] Alice Orchiston, ‘Brothels as Workplaces: Exploring Labour Regulation and Compliance in Australia’s Legal Sex Industry’ (PhD, University of Sydney, 2017).

[27] Alex Brewster, ‘Bill to Decriminalise Sex Work Tabled in Queensland Parliament Today’, ABC News (online, 14 February 2024) <https://www.abc.net.au/news/2024-02-15/qld-new-laws-to-decriminalise-sex-work-before-parliament/103467110>; Explanatory Memorandum, Criminal Code (Decriminalising Sex Work) and Other Legislation Amendment Bill 2024 (Qld) 2.

[28] Queensland Law Reform Commission, A Decriminalised Sex Work Industry for Queensland: Report Summary (Report No 80, March 2023).

[29] Sagade and Forster (n 9).

[30] Orchiston (n 3) 13–6.

[31] Sullivan (n 19) 104.

[32] Orchiston (n 3) 11.

[33] Penny Crofts et al, ‘Ambivalent Regulation: The Sexual Services Industries in NSW and Victoria — Sex Work as Work, or as Special Category?’ (2012) 23(3) Current Issues in Criminal Justice 393.

[34] Wendy Chapkis, Live Sex Acts: Women Performing Erotic Labor (Routledge, 1997) 221.

^[35] International Covenant on Economic, Social and Cultural Rights), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); Gowri Vijayakumar, Shubha Chacko and Subadra Panchanadeswaran, ‘“As Human Beings and As Workers”: Sex Worker Unionization in Karnataka, India’ (2015) 6(1) Global Labour Journal 81.

^[36] Sagade and Forster (n 9) 40.

^[37] Chaitanya Lakkimsetti, ‘“HIV Is Our Friend”: Prostitution, Biopower, and the State in Postcolonial India’ (2014) 40(1) Signs: Journal of Women in Culture and Society 201.

^[38] Ibid.

^[39] Sameena Azhar et al, ‘Diversity in Sex Work in India: Challenging Stereotypes Regarding Sex Workers’ (2020) 24(6) Sexuality & Culture 1774.

^[40] Sema K Sgaier et al, ‘How the Avahan HIV Prevention Program Transitioned from the Gates Foundation to the Government of India’ (2013) 32(7) Health Affairs (Project Hope) 1265.

^[41] Ibid.

^[42] Smarajit Jana et al, ‘The Sonagachi Project: A Sustainable Community Intervention Program’ (2004) 16(5) AIDS Education and Prevention 407.

^[43] Gowri Vijayakumar, ‘Sexual Laborers and Entrepreneurial Women: Articulating Collective Identity in India’s HIV/AIDS Response’ (2020) 67(3) Social Problems 507.

^[44] Lakkimsetti (n 32) 223.

^[45] The Immoral Traffic (Prevention) Amendment Bill, 2006.

^[46] Vijayakumar (n 39) 510.

^[47] Standing Committee on Human Resource Development, Parliament of India, Report on ‘The Immoral Traffic (Prevention) Amendment Bill (Report No 182, November 2006).

^[48] Budhadev Karmaskar v The State of West Bengal [2022] 20 SCC 204, 11.

^[49] The Constitution of India, art 21.

^[50] Saheli HIV AIDS Karyakarta Sangh Pune, Annual Report 2020–21 Rise up Project (AAVAJ Project) (Report, 2021).

^[51] Andi Sebastian “Sex Workers and AIDS: Who’s in Bed with Whom?’ (1990) 4(5) National AIDS Bulletin 10.

^[52] Ibid 11.

^[53] Scarlett Alliance, 2022–2023 Federal Pre-Budget Submission (Report, 2022) <https://treasury.gov.au/sites/default/files/2022-03/258735_scarlet_alliance.pdf>.

^[54] Zahra Stardust, ‘Protecting Sex Worker Human Rights in Australia’ (2014) International Bar Association Human Rights Working Group News 1, 30.

^[55] Elena Jeffreys, Janelle Fawkes, Zahra Stardust, ‘Mandatory Testing for HIV and Sexually Transmissible Infections among Sex Workers in Australia: A Barrier to HIV and STI Prevention’ (2012) World Journal of AIDS 203–11.

^[56] Scarlett Alliance, Annual Report 2022–23 (Report, 2023) 29 (‘Annual Report’).

^[57] SWOP, ‘What Do We Do’ Sex Workers Outreach Project (Web Page, 2024) <https://swop.org.au/what-we-do>.

^[58] Orchiston (n 27) 221.

^[59] SWOP, Annual Report 2022-2023 (Report, 2023) 13.

^[60] Ibid.

^[61] Lakkimsetti (n 33).

^[62] Right to Organise and Collective Bargaining Convention (ILO No 98) opened for signature 1 July 1949, 96 UNTS 257 (entered into force 18 July 1951); Shae McCrystal, ‘Collective Bargaining Beyond the Boundaries of Employment: A Comparative Analysis’ 37 Melbourne University Law Review 663.

^[63] Gregor Gall, ‘Sex Worker Organising in Australia, Netherlands, Germany, Canada and New Zealand’ in Sex Worker Union Organising (Palgrave Macmillan UK, 2006) 123.

^[64] Ibid

^[65] Kristen Murray, ‘Sex Work as Work: Labour Regulation in the Legal Sex Industry in Victoria’ (Master’s Thesis, University of Melbourne, 2002) <http://hdl.handle.net/11343/38844> .

^[66] Orchiston (n 27) 219–21.

^[67] Ibid 224.

^[68] Ibid 218.

^[69] Ibid 216.

^[70] Ibid, refering to Dovedeen Pty Ltd v GK [2013] QCA 116 (17 May 2013) [36].

^[71] Padma Govindan, ‘Rethinking Emancipation: The Rhetorics of Slavery and Politics of Freedom in Anti-trafficking Work in India’ (2013) 15(4) Interventions 511; Shakthi Nataraj and Sutapa Majumdar, ‘Theorizing the Continuities between Marriage and Sex Work in the Experience of Female Sex Workers in Pune, Maharashtra’ (2021) 10(2) Social Sciences 52.

^[72] Gall (n 51) 301.

^[73] Gregor Gall, ‘Sex Worker Collective Organization: Between Advocacy Group and Labour Union?’, ed Susan Durbin and Steve Fleetwood (2010) 29(3) Equality, Diversity and Inclusion: An International Journal 289.

^[74] Oliver, Amy et al, ‘In the Nude: Factors Determining the Employment Status of Sex Workers’ [2018] CanterLawRw 4; (2018) 24 Canterbury Law Review 91.

^[75] Orchiston (n 27) 79–80.

^[76] Fair Work Act 2009 (Cth); Shae McCrystal (n 63) .

^[77] ACCC, Small Business Collective Bargaining: Notification and Authorisation Guidelines (Commonwealth of Australia, December 2022) 1.

^[78] Orchiston (n 27) 81–2.

^[79] Ibid 84-87.

^[80] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21.

^[81] [1996] IRCA 451 [31].

^[82] [2022] FWC 2656.