Operating an adults-only business can sometimes be a legal minefield! The following information will give your some general guides for managing the Australian regulatory landscape.
If you have any queries or concerns please contact Eros.
- Therapeutic Goods Regulation
- Laws Regarding ‘Psychoactive Substances’
- Drug Paraphernalia Laws
- Regulating Vaping and Tobacco
- Sale of Classified Media
Therapeutic Goods Regulation
Some sexual performance enhancers and other sexual aids may be considered a ‘therapeutic good’ by the Therapeutic Goods Administration (‘the TGA’).
Some therapeutic goods can be sold via retail stores whilst others can only be sold at pharmacies. Moreover, therapeutic goods (and products containing banned or restricted substances) are frequently subject to recalls by the TGA.
It’s important that retailers are aware of any recall notices put out by the TGA in relation to products. Alerts can be monitored on the TGA website here.
Criminal Laws Regarding ‘Psychoactive Substances’
Some products sought to be sold by adult retailers may be criminalised under State or Territory drug offences.
This may be because product ingredients are scheduled as ‘drugs of dependence’ under relevant criminal laws or that they fall within broad bans on substances which have a ‘psychoactive effect’.
We recommend that members check the ingredients in any product sold against listed drugs of dependence applicable in your jurisdiction.
If you are within a jurisdiction that has broader definition of drugs of dependence to include a ‘psychoactive effect’ we recommend you act conservatively, and only sell goods that would not fall within that definition.
If you would like specialist legal advice on whether a good is likely to be subject to criminal laws, please get in touch.
Drug Paraphernalia
All states and territories have criminal offences applicable to drug ‘paraphernalia’ or ‘utensils’. This can encompass water pipes, ice pipes, bongs, hookahs and other products.
Generally, the wording of these offences is quite broad – encompassing possession of ‘anything which is used for the administration, consumption or smoking of a dangerous drug’.
Vaping and Tobacco
Tobacco retail is subject to specialist regulation in each State and Territory, it is recommended that retailers check with their local tobacco authority regarding compliance. In some States a tobacco license is required.
In many States and Territories, vaping products are treated as the equivalent to tobacco products and therefore subject to the same restrictions.
The Therapeutic Goods Administration has not approved the inclusion of nicotine in vaping products, as such sale of vaping products containing nicotine is illegal in Australia.
Sale of Classified Media
Most forms of media that are to be sold, exhibited or distributed in Australia (publications, films and games) must first be classified by the Australian Classification Board.
‘Films’ are classified as either G, PG, M, MA15+, R18+ or X18+ and ‘Publications’ such as magazines are classified as either Unrestricted, Category 1 (restricted) or Category 2 (restricted).
If a film or publication does not fit a classification criteria, it is ‘Refused Classification’. It is illegal to sell, exhibit or distribute a film or publication that is Refused Classification (or would likely be Refused Classification).
A variety of Federal, State and Territory regulatory offences apply for non-compliance with the classification code.
Only in the ACT and Northern Territory, can X18+ classified films be sold and they are subject to a licensing system.
It is recommended that you consult the relevant classification laws in your State or Territory if you plan to sell, exhibit or distribute adult media in your jurisdiction
- Regulation 4A (RC Adult Media and Drug-related Literature)
- Schedule 4 (Drugs)
- Schedule 8 (Certain Synthetic Chemicals)
- Schedule 12 (Goods Subject to Trade Practices Bans)
Certain items may be held up in customs if officials suspect there has been a violation of import restrictions, even if the good is approved. If you are having issues with the importation of goods, contact Eros.
Exporting goods out of Australia is regulated by the Customs (Prohibited Exports) Regulations 1958 (Cth) and contains near identical prohibitions as the import laws.
With exporting goods it is always worth keeping in mind the customs restrictions that apply to the receiving country.
- Sex Work
- Porn Production
- Adult Cinema
- Live Adult Entertainment
- Sex on Premises Venues
Sex Work
Sex work is legal (albeit with restrictions) in Victoria, NSW, ACT, NT and Queensland.
In Victoria and Queensland, sex work operates under a licencing system. In the ACT and NT sex work operates within a registration model and in NSW, sex work operates within a full decriminalisation model.
Private sex work is legal (but heavily restricted) in Tasmania. However, it is illegal to operate a brothel.
Most forms of sex work are illegal in Western Australia and South Australia.
The Scarlett Alliance keep an up to date summary of sex work laws nationally on their website.
Sex work regulation is a specialist area of the law and it important that you understand the full legal landscape before providing sex work services either individually or before operating a brothel or escort agency.
The following government agencies provide information on sex work regulation in their respective State or Territory:
- Consumer Affairs Victoria (VIC)
- Access Canberra (ACT)
- Prostitution Licensing Authority (QLD)
- NT Gov (NT)
- For NSW, see your local council bylaws.
As well as complying with any local licensing/registration scheme sex work premises will also need to comply with local council planning restrictions.
Porn Production
The current legal status of porn production in Australia is unclear.
Generally, it is prohibited to produce material likely to be classified as X18+ or Refused Classification in all States and Territories except the Australian Capital Territory, where X18+ production isn’t formally banned.
The ACT has never formally legalised production. Instead, a licensing scheme exists for the copying and distribution for X18+ classified material.
It is unclear whether porn producers need to comply with relevant law applicable to sex work in each State or Territory.
In regard to producing or streaming explicit images via a website, this is generally prohibited via Australian servers and subject to take down by the eSafety Commissioner.
Hosting explicit content on overseas servers may be legal, but it will depend on the internet content policies applicable in that jurisdiction.
Adult Cinema
Generally, X18+ material can only be exhibited in the Australian Capital Territory. Even then, an X18+ license is likely required.
An exception can be made to show a film that would otherwise be Refused Classification, X18+ classified or is yet to be classified in limited circumstances.
A variety of Federal, State and Territory regulatory offences apply for non-compliance with the classification code.
Live Adult Entertainment
Live adult entertainment venues may be subject to State or local council regulation.
In all states and territories local council approval is required and premises are required to be age restricted. Further restrictions may also apply to a liquor license within an adult entertainment venue.
In Queensland an adult entertainment permit is required.
Sex on Premises Venues
There are very few good definitions of a ‘sex on premises’ venue, however the Victorian Sex Work Act 1994 (Vic) defines one as:
“any venue where a person is required to pay an admission fee or charge to enter the venue for the purpose of engaging in sexual activities with another person who has also entered the venue on the same terms and who did not receive any form of payment or reward, whether directly or indirectly, for engaging in sexual activities.”
This would include ‘swingers clubs’ and other variants where people meet at a venue for sex, but payment is not being paid for a sexual service.
In some jurisdictions, local council approval is required to operate a sex on premises venue. However, in many jurisdictions venues are unregulated.
The role of the state government is to provide the overarching laws, regulations and policies in place. It is then the responsibility of the local councils to interpret and carry out approvals according to the state planning laws, regulations and policies.
Restricted Premises
Many forms of adult retail and adult entertainment venues are classified as restricted premises under planning laws.
The definition of what is a restricted premises varies from state to state. Where restricted premises are permitted and prohibited is determined by local government. For example, some councils allow adult retail to trade on high street or alongside other retail stores and small businesses, while other councils only allow adult retail to operate in light industrial zones
A similar type of regulation applies to ‘brothels’ under planning schemes.
Planning Applications and Appeals
If a local council rejects a planning application, the applicant is allowed to dispute the decision in the state-based civil administration court or tribunal. This court has the power to uphold or overturn a council decision. In some cases, the state government may step in and override both decisions but this mostly occurs for larger developments.
We encourage members to contact the Eros office to discuss development applications early in the process so that we may be able to provide assistance.
Like any other business, adults-only businesses are allowed to have signage to help customers identify their location.
Advertising should follow the voluntary Code of Ethics and the Code of Ethics Practice Note developed by the Advertising Standards Bureau (ASB).
If a community member makes a complaint to the Advertising Standards Board, you will be provided the opportunity to respond.
You can read more information about the process on the ASB website or call the Eros office if you would like assistance. In many instances, the ASB has made decisions on complaints in favour of our members.
Requirements for Adult Websites (including Retail Stores)
With the introduction of the federal government’s eSafety requirements under the Online Safety Act 2021, compliance requirements are now in effect. If your website has class 2 material (that is, material that has been, or is likely to be, classified R18+) it has to be behind a restricted access system that accords with the Restricted Access Systems Declaration 2022.
For more information about Restricted Access Systems (RAS) visit eSafety.
What does this mean for your website?
Step 1: (Mandatory) Application for access
You MUST have an access-control system when entering your website, for example:
It MUST contain:
- A warning that the website contains ‘adults-only’ content.
- A statement that the website ‘contains content intended for persons 18 years of age or older’.
- An agreement that the person entering the website is at least 18 years of age. For example: ‘By clicking “agree” you confirm that you are 18 years of age or older and accept our terms and conditions’.
- A link to any terms and conditions (if applicable)
- An acceptance button (Agree) or decline through which the user applies for access to the website.
- Safety information (or a link to safety information) about parental controls
The access-control system MUST include reasonable additional steps to confirm that the user is at least 18 years of age, such as using a credit card, providing other identity related information, or enabling additional functionality such as parental controls or metatags.
You MUST provide safety information – or a link to safety information – about how a parent or guardian may control access to content on your website at the point of accessing the website. This demonstrates a commitment to prevent children from accessing restricted material online. For example: “For more information on limiting access to adult-only websites visit eSafety”
Step 2: (Suggested) Additional Conditions:
You may adopt some additional conditions including:
- Not using nudity or explicit images or video content in marketing material
- Ensuring any overtly sexual nudity or video content (including product marketing material) is behind a restricted access system
Step 3: (Suggested) Display the Eros Member Badge on your website:
This provides consumers and the general public with the assurance that you are a reputable business and a member of your industry association.
Please get in touch with the Eros office to be issued the members badge.
Step 4: (Mandatory) Labeling your website RTA (Restricted to Adults):
As part of online safety, Internet Service Providers (ISPs) are taking further steps to provide better parental filtering and blockers, helping parents prevent children from viewing age-inappropriate content.
Eros encourages members to use a website label on adult websites, such as the “Restricted to Adults” (RTA label) developed by the Association of Sites Advocating Child Protection (ASACP) in order to demonstrate the adult industry’s commitment to prevent children from accessing restricted material online.
The RTA Label is free to use, voluntary, and universally available to any website that wishes to clearly and effectively label itself as being inappropriate for viewing by minors, to tag the website and enable parental controls.
Step 5: (Suggested) Terms and Conditions: eSafety Policy:
Members are encouraged to include an eSafety policy as part of your website’s terms and conditions. Eros has provided the following examples for members to use:
- This website is an adults-only website intended for persons 18 years of age and older, with a two-step age verification process upon entry and payment.
- This website is labeled with an RTA “Restricted to Adults” label that allows parental controls to filter or block this website.
- Customers must be 18 years or older to view or purchase products from our store.
- This website contains adult products for sexual wellness (adult novelty) and is not a pornography platform.
- This website complies with Australian Advertising Standards and is guided by the Adult Industry Association’s Code of Practice.
- Criminal matters.
- Local council disputes.
- Regulatory compliance issues.
- Community engagement.
- Media relations and crises management.
Some resources that may be able to assist you include the Eros Police Raid Kit and our best practice guidelines for operating an age restricted business.
