Statutes Amendment (Decriminalisation of Sex Work) Bill

Second Reading

I rise to speak on the Statutes Amendment (Decriminalisation of Sex Work) Bill 2018 and it is with much pride that I do so. I had wondered, given the history of this matter, whether we would ever come to this day, but I am proud to say that we have. The outline of the proposed legislation, which has had scrutiny through its introduction and passage in the other place, has been a valuable addition.

May I outline first that the Statutes Amendment (Decriminalisation of Sex Work) Bill seeks to progress reform to remove offences relating to prostitution and the keeping of brothels from our criminal law, both the Criminal Law Consolidation Act and the Summary Offences Act. Furthermore, the bill ensures that current and former sex workers cannot be discriminated against under the Equal Opportunity Act and that they are covered through return to work provisions. Finally, the bill brings offences relating to prostitution, brothel keeping and street soliciting under the spent convictions regime, allowing prescribed sex work offences to be spent convictions. I will turn to each of these key components shortly.

The bill I speak of today is nearly identical to the bill proposed by the Hon. Michelle Lensink MLC, introduced into this parliament in 2015, and that of Steph Key, MP of the time, introduced in 2013. The 2015 bill was subsequently the subject of a select committee report published on 30 May 2017. Although it was passed without amendment by the Legislative Council on 5 July 2017, that bill did not ultimately pass the House of Assembly prior to the prorogation of parliament.

The bill before us today reflects the lengthy work of that committee and those members on it and takes into account amendments provided in the Legislative Council only weeks ago. I believe that these amendments work to strengthen the bill for our sex workers and brothel keepers but will also deal with some community concern around advertising and police powers.

We are joined on this day by an historic group of people in the chamber, many of whom have paved the way for the full decriminalisation model to be progressed in our parliament and the basis upon which we are able to debate this today. Specifically, I would like to thank attendees from Zonta, the YWCA, the Sex Industry Network, SHINE SA, the Working Women's Centre, Business and Professional Women, and the Health Services Union.

I would also like to thank the Hon. Tammy Franks MLC, the Hon. Michelle Lensink MLC, Duncan McFetridge, former member of this parliament, and my colleague the member for Reynell, who joins me today to second this bill. I also wish to thank the Hon. Steph Key and the Hon. Diana Laidlaw, who cannot join us today but who have been with us every step of the way in working towards a full decriminalisation model.

As a firm believer in this cause, I see decriminalisation as the only model that will comprehensively afford sex workers and women their fundamental rights and protections. By decriminalising sex work, we can provide the predominantly female and often highly vulnerable cohort the opportunity to be afforded basic health care, report instances of abuse to the police, seek work opportunities and contribute to society without the overarching stigma of their choice of work.

The sale of sex has existed since time immemorial and will continue to exist with or without the passage of this bill. However, the bill can improve the health and safety conditions of workers and reduce crime rates, which is the experience of other jurisdictions that have implemented decriminalisation. I refer particularly to New South Wales and New Zealand, which have decriminalised sex work in 1979 and 2003 respectively. This bill, at its heart, is about choice: the choice to work in whichever industry you like, the choice to disclose details of actions to the police without the fear of prosecution and the choice to cease working in the industry should you choose to do so.

I will now move to key components of this bill. Under the bill, at clauses 9 to 19 inclusive, the protections of part 5B of the Equal Opportunity Act 1984 are extended to a former or current sex worker, which is to be defined as a 'person who provides sexual services on a commercial basis', and their relatives or associates.

The amendments will have the effect of treating discrimination on the grounds of being or having been a sex worker in the same way that part 5B of the Equal Opportunity Act currently treats discrimination on the grounds of marital or domestic partnership status, the identity of a spouse or domestic partner, pregnancy, association with a child, caring responsibilities and religious appearance or dress. Generally speaking, it will be unlawful to discriminate against a former or current sex worker and their relatives or associates by treating them unfavourably in employment and education or in relation to land, goods, services and accommodation.

Under section 6 of the Equal Opportunity Act, a person—that is, the discriminator—treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances in which the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance. The equal opportunity commissioner has advised that the amendments simply add a new ground to the act. The commissioner has no concerns about this, noting that exemptions can be applied for.

Clause 20 of the bill allows for prescribed sex work offences to be spent convictions. Under this clause, convictions will be taken to be spent if they were an offence against keeping of a bawdy house, section 270(1)(b) of the Criminal Law Consolidation Act; permitting premises to be frequented by prostitutes, section 21 of the Summary Offences Act; soliciting in a public place, section 25 of the Summary Offences Act; procurement for prostitution, section 25A of the Summary Offences Act; living on the earnings of prostitution, section 26 of the Summary Offences Act; the keeping and management of a brothel, part 6 of the Summary Offences Act; or a common law offence related to prostitution.

The Spent Convictions Act 2009 sets out the law on when a conviction is not disclosed on your criminal record. A spent conviction is a conviction that, subject to exceptions, cannot be disclosed on a police check and is not required to be disclosed in response to questions about criminal history. Some exceptions to this rule include certain categories of employment, character tests and screening applications. Unless applying for particular types of work, a person who has spent convictions does not have to disclose them to prospective employers, and employers cannot refuse to employ someone on the basis of spent convictions.

Regardless, spent convictions are disclosable in relation to working or volunteering with children, people with disability, vulnerable people or people in the aged-care sector. This includes working with children checks. In these circumstances, the screening unit operated by the Department of Human Services undertakes an examination and consideration as to whether a current or former sex worker poses a risk to children and thus whether a working with children check should be granted. This is done on a case-by-case basis. Additionally, people with sex work-related spent convictions are eligible to apply to a magistrate for an order that their spent conviction is not disclosable, even in relation to these exceptional types of work.

Clause 23 of the bill inserts police powers to enter and search premises used for commercial sex services if there is reasonable cause to suspect an offence has recently been, or is about to be, committed or to secure evidence of an offence. Under section 32 of the Summary Offences Act, currently police have the power to enter and search premises that are reasonably suspected to be brothels. Retaining a right of entry in certain circumstances is important when decriminalising sex work; however, it should not overreach the decision of parliament to decriminalise brothels and sex work.

As such, this clause ensures that there is adequate and appropriate police power to enter premises used for commercial sex services where there is reasonable cause to suspect that an offence has been recently committed or is about to be committed. This clause ensures a balance is met between entering premises in the investigation of a crime and simply entering premises with no reasonable cause. There must be a reasonable cause to suspect an offence is occurring.

The Commissioner of Police has noted their opposition to a bill that gives police no power to enter premises where crimes such as child exploitation, child trafficking or otherwise are occurring. South Australia Police are provided effective measures to protect sex workers from illegal exploitation, to prevent the involvement of minors and to prevent organised crime entering the industry, without a broad right of entry power affecting potentially much more of our community.

Clause 24 of the bill repeals offences relating to soliciting in a public place for the purposes of prostitution under section 25 of the Summary Offences Act, procuring a person for prostitution under section 25A, and living on the earnings of prostitution of another person under section 26. The retention of these offences in their current form displaces the criminalisation model and erodes the purpose of this reform.

Despite this, I have seen a strong interest from both sides of the parliament to see an amendment limiting where soliciting can occur. On the face of it, suggestions like the creation of declared precincts are utterly inappropriate as a solution to the supposed perils of soliciting, as I imagine we would simply see precincts encompass entire suburbs.

Looking at the New South Wales experience, the New South Wales Summary Offences Act provides that a person on a road shall not, near or within the view of a dwelling, school, church or hospital, solicit another person for the purpose of prostitution. This model covers both soliciting clients by prostitutes and soliciting prostitutes by clients. I consider that a model akin to this may be a worthy option to ensure broader community concerns are addressed and will be considering amendments to the same.

Finally, I turn to regulation and licensing. I do not believe that licensing structures have a place in any debate around the decriminalisation of sex work. This view is shared by current licensed jurisdictions like New Zealand, New South Wales and Queensland, which, I have been advised, are progressing towards full decriminalisation. South Australia has the opportunity to learn from the mistakes of other jurisdictions and progress with a fully decriminalised model, yet one which enshrines advertising restrictions, protections for vulnerable persons, exit assistance and police powers.

I am acutely aware that other models proposed by decriminalisation opponents are simply a mechanism to detract from true reform. Quite simply, sex workers oppose licensing models on the grounds that it compromises their safety for similar reasons to the existing laws and shows ignorance as to what the decriminalisation of sex work means.

The bill has been sent to the Law Society of South Australia for its comment and I look forward to sharing that response with this place and working with the society on any amendments that would add to the decriminalisation of sex work in South Australia. On that note, I encourage all members on both sides of politics to take an opportunity to meet with the Sex Industry Network and other advocates to learn about what decriminalisation truly means to someone on the front line.

I urge members to hear about the way sex workers interact with members of our disabled community who might not otherwise have opportunities, hear about the stigma and derogatory behaviour that occurs on the streets and listen to the educated, bright and conscientious women leading this charge for reform. There have been significant miscommunications and mistruths about what this bill will and will not allow.

In the coming weeks, I will be holding a comprehensive briefing with my colleague the member for Reynell, which I hope all members will attend. This is not a political issue. This is a basic question of fundamental rights and the rights for all to feel safe in the workplace. We need an open dialogue on this reform and I welcome all opinion and comment from my colleagues in this place and stakeholders in the wider community, but we must remain respectful during debate and outside commentary.

I end with this: our parliament is left with two options. We either persevere with the status quo, effectively ignoring sex workers as the victims of crime and perpetuation of the stigma around this industry, or we progress with decriminalisation and see a stronger protection for workers and women. I implore all my colleagues on both sides of the house to consider this carefully and support the decriminalisation of sex work.