Statutes Amendment (Decriminalisation of Sex Work) Bill

I seek leave to move Notice of Motion, Private Business No. 3 in an amended form.

The Hon. J.M.A. LENSINK: Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935, the Equal Opportunity Act 1984, the Spent Convictions Act 2009, the Summary Offences Act 1953 and the Return to Work Act 2014.

Read a first time.

Second Reading

The Hon. J.M.A. LENSINK ( 16:25 :16 ): That this bill be now read a second time. 

I acknowledge that this work is largely the member for Ashford the Hon. Steph Key's most recent iteration of the bill which was supplied to the House of Assembly I think in May of 2014—at least I certainly saw a draft—and I indicate that this legislation is a conscience vote for the Liberal Party and I do this as a private member. Just to skate over the history of discussion of prostitution or sex work reform legislation, between 1980 and 1999 there were several attempts at reform with some very close votes in both chambers. There were a number of select committees which did a great deal of work and I think particularly of note is the 1996 report of the Social Development Committee.

In more recent history there has been a hiatus, until 2012 under the sponsorship of the member for Ashford. On 31 May 2012, she introduced the Statutes Amendment (Sex Work Reform) Bill 2012 into the House of Assembly, which was defeated on 15 November. An amended bill was brought in on 16 May 2013, that being the Statutes Amendment (Decriminalisation of Sex Work) Bill. Then there was the bill from May last year, which I understand did not progress because of the prorogation of parliament.

While there has been no further legislative activity since, there has been ongoing discussion regarding law reform in the media, with strong support for a decriminalised model among a range of women's organisations including Business and Professional Women, Soroptimist International, Zonta International, the YWCA and the National Council of Women. I also acknowledge that there are a number of members in this place and in the other place who support reform of our current legislation, and their work also needs to be acknowledged.

The practice of prostitution or sex work perse is not illegal in South Australia, or perhaps, if I take the lawyers' advice, strictly speaking not necessarily illegal. What is illegal and what is not is quite a mish-mash, hence the many attempts to reform the legislation. First of all, in the Summary Offences Act, clause 25 refers to 'soliciting', so that is loitering in a public place or perhaps accosting someone in a public place. It is also illegal to procure for prostitution—that is clause 25A—and then there is the offence of living on the earnings of prostitution, which is clause 26.

Part 6, which starts at clause 27 through to 32, refers to brothels and a range of offences, including the keeping and managing of brothels, permitting premises to be used and various others. Then we come to the Criminal Law Consolidation Act, which at clause 270 makes the keeping of a common bawdy house—which, I have to be honest, I had to look that one up to know what that meant, and I think it is aimed at landlords—an offence under the act.
There is a very significant section in there which relates to sexual servitude, which I understand was brought in by the former Liberal Attorney-General, Hon. Trevor Griffin of blessed memory. We can actually say that now; we always used to joke about that, but he is unfortunately no longer with us.

In the Criminal Law Consolidation Act, 65A is the definition section; 66 covers sexual servitude and related offences and makes it illegal to compel another person to provide commercial sexual services; 67 refers to deceptively recruiting someone for commercial sexual services—if you dupe someone into it; and 68 is the use of children in commercial sexual services. In introducing those particular clauses in October 1999, in his second reading speech the Hon. Mr Griffin said the following:

This Bill addresses the ways in which people can be forced to become part of the sex industry against their will. It addresses the commercial sexual exploitation of children , and the slave-like conditions often imposed on drug addicts or illegal migrants in the prostitution industry. These issues were considered by the Model Criminal Code Office rs Committee of the Standing Committee of the Attorneys-General in its Report on Slavery Chapter 9 : Offences against Humanity , November 1998.

The MCCOC Report recommended a definition of sexual servitude based on two concepts. The first is a victim's incapacity to cease providing commercial sexual services or to leave the place where such services are being provided. The second is that such incapacity is caused by threats of force or deportation or any other kind of threat, made to the victim or to another (for example, the victim's child).

He goes on to say that:

This Bill is based on the sexual servitude provisions of the Commonwealth Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999, which was enacted following the release of the MCCOC Report. To do this the commonwealth used its external affairs powers…the commonwealth act specifically leaves room for complementary state legislation. 

The reason that I have gone into that in some detail is just to state that there is certainly no intention to remove those from the Criminal Code. I think we all support those particular provisions. However, what is not on the statute books is a specific offence that says that the exchange of sexual services for money is an offence against the law.

I think it is important to outline those particular provisions, because there is certainly a range of inconsistencies. The former police commissioner, Mal Hyde, was fairly unequivocal about the fact that the laws in South Australia are out of date and unnecessarily tie up police resources. He made the following statements:

That the moral issue of prostitution is not one for police to debate. Any legislation must address possible harms associated with prostitution and any regulatory system that is put in place must be practically effective and workable for police.

Our former shadow attorney-general Stephen Wade received the following comments from SA Police in the context of the 2012 bill in relation to enforcement, and I quote:

The policing of brothel-based prostitution is problematic due to the restrictive nature of current legislation and precedent set by South Australian courts. The matter of Police v Boileau in 1999 provided police with practical difficulties in improving the two elements of offences related to brothels, the payment of money and that a sexual act took place for that payment.

This altered the then investigative approach to one which now proactively focuses on issues associated with brothel-based prostitution such as illicit drugs, illegal immigrants, organised crime and minors.

This approach also includes working with relevant local councils and other partners such as the Australian Federal Police and the Department of Immigration and Citizenship regarding suspected offences of sexual servitude and people trafficking.
There are also the statistics in relation to how many offences are recorded annually by the police, While I think overall the trend, it is fair to say, is that soliciting has gone down, the other offences are not highly recorded, which I think is a fair indication that this is not an area that is successfully brought to court.

The industry itself reports that police will target businesses that receive complaints or are suspected of employing illegal migrant workers. The industry also reports that raids are conducted on brothels on a periodic basis and that police officers employ certain methods to try to establish evidence that can then be used in court. The end result is that workers do not have a trusting relationship with police and therefore are personally at greater risk of harm and activities are pushed underground, which is more likely to lead to failure to report other potential illegal activities to police.

The reason I focus so much on those issues is that I think that is one of the areas that people often raise in concern. However, as the Hon. Tommy Franks mentioned in her matter of interest today, we really need to listen to the people who work within the industry. They certainly wish to keep other illegal activities away from the places in which they work and they would like to have a safe environment in which to work, and I think the attempts to reform these laws over the years have certainly arisen out of a concern for the safety of people who are within the industry. That is certainly my motivation for supporting this legislation and promoting this particular bill.

Ari Reid (whom I acknowledge is in the gallery today), Sharon Jennings and Tarquin Coles were interviewed in October last year by Mr Peter Goers (we love Peter Goers). At that stage, she had been a sex worker for 17 years and she said:

I have worked in really shocking brothels with shocking work conditions. I have had zero rights… with my friends and people I care about, my colleagues, I've heard the most horrendous stories. I've heard of people calling to have the glass fixed on their broken window before they call ed the police because someone smashed their window and they're too scared to call the police, people handing over money to someone because they thought they were a cop an d been too scared to call the cops. 

I think that very well illustrates the concerns that many people would have about criminal elements and corruption within the police. The point that I am trying to make, perhaps rather clumsily, is that, because the laws in South Australia are so inconsistent and do not lead to a clean platform of what the understanding of the laws are, a number of offences will go unreported, and that is an environment for other illegal activities to flourish rather than vice versa.

There is a range of models for how laws can be treated by various jurisdictions and a range of those operating throughout Australia and New Zealand. The first model is the criminalisation model which, I think it is fair to say, either focuses on the supply side (that is, the selling of the service, which is the workers) or on the demand side (which is the clients who may seek to purchase it). In South Australia, we certainly focus on the demand side. I expect that in other second reading speeches there will be a range of different incidents that people may report on which relate to the collecting of evidence, and so forth, which is then attempted to be used in court, either successfully or unsuccessfully, and some of that goes against common sense.

There is also the demand side, which I think has gained a bit more currency in recent times through the so-called Scandinavian model, which I can only characterise as radical feminism meeting the religious right.

I would urge honourable members, or other people who may suffer from reading Hansard, to obtain a document from our Parliamentary Research Library that was published in February 2012 entitled, Different Approaches to Prostitution Regulation: A Comparative Analysis, by Dr Leah Skrzypiec and Eva Dimopoulos. That document goes through these in some detail, but in relation to the feminist argument, it states the following:

There are two major sides to the general feminist position on prostitution: the radical and the liberal. For the radical feminist, prostitution always seems problematic. It is viewed as perpetuating gender inequalities and acts of prostitution are held to be acts of violence against women. As such, women participating in the industry are viewed as victims. Radical feminists therefore oppose prostitution and argue against its legalisation or decriminalisation as this helps to normalise and perpetuate the sex industry, which in turn harms women.

Further, it talks about other points of view and it states:

Christian teachings outline that sex is a sacred and intimate act reserved for a heterosexual married couple. As such, it vehemently opposes the commercialisation of sex and the encouragement of sex outside of marriage.

We have seen that those two different points of view have found some common ground in the Scandinavian model. With legalisation, which can also be a regulated model, we have the regulation of brothels, inspections and sets of KPIs—or not KPIs so much as perhaps inspection regimes for various things. There have been attempts in South Australia to implement various models, and I note that that is the approach which is taken in Victoria, Queensland, the ACT and the Northern Territory.

The third is the decriminalisation model, which is where laws against prostitution are repealed. Those references, within the criminal law acts, are removed from the statute books. That enables regulations covering other areas such as health and employment, which therefore focus on the health and safety of sex workers and their conditions. This approach currently operates in New South Wales and New Zealand. I understand that those changes took place in New Zealand in 2003, and there have not been any increases to the industry in New Zealand.

In South Australia, these statistics and comments are taken, and I hope accurately paraphrased, from industry representatives in South Australia. I understand that there is a small and stable workforce of up to 1,000 people operating, up to 100 brothels, and the activity mainly takes place around Adelaide. Most workers operate alone or in pairs from private premises and generally individuals work in the industry from between five to seven years.

A forum was held by Business and Professional Women, Zonta and Soroptimist's—and I do not recognise the logo of the other organisation—on 23 February 2012. Ms Ari Reid referred to what she called myth busting. In those comments she said that most sex workers have better sexual health practices than the general population and their own health is better; the drug of choice is nicotine; workers come in all shapes and sizes, and so forth; they do not have a high rate of childhood sexual abuse, which I think ties into comments that I made earlier about workers often being portrayed as victims; and most people in the industry see it as a job.

That brings me to this issue that is often raised in relation to exploitation of people working in the industry. A number of people who are not familiar with the industry, I think, make certain assumptions about people who do work in the industry, and people are often unfairly characterised as having had a difficult upbringing or perhaps having some drug problem and so forth, and I think that is certainly not accurate for the people I have met who work in the industry.

In any case, we have some very strong sexual servitude laws. The penalties for some of these offences are contained in section 66 of the Criminal Law Consolidation Act. A person who compels another to provide or to continue to provide commercial sexual services is guilty of an offence. If that person is a child, the maximum penalty for the person who compels them is imprisonment for life, if the child is under 14; if the child is under 18 years, imprisonment for 19 years; or in any case—so, this is for compelling an adult—imprisonment for 15 years.

Indeed, the deceptive areas also have similarly very high penalties. So, that argument that is often used to say that people are coaxed into the industry under false pretences and then are held there against their will, I think, would be very much in the minority and not representative of what actually takes place in our state.

I will talk about the provisions that are within the bill. The Criminal Law Consolidation Act: we are inserting a new section 68AA that services may not be provided to a child. The reference to a 'bawdy house' is deleted. There is the abolition of certain offences section which is added to that and relates to prostitution. The amendment of the Equal Opportunity Act is important for people who perform other jobs who may be discriminated against, so one of the things that I think a number of people who have raised concerns about decriminalisation say is that we need to provide options for people who may wish to exit the industry.

By amending the Equal Opportunity Act, we can assist people who either have other jobs or who may wish to exit the industry. There is a range of existing provisions within that legislation that have to do with discrimination on a range of grounds including marital domestic partnership, pregnancy, care and responsibility, religious dress and so forth. There is a range of amendments which add the ground of being or having been a sex worker to those as well.

The Spent Convictions Act, again, is important for people who may have a particular conviction and will affect their future criminal record, so there are amendments to include somebody who has an offence in that section to be part of the Spent Convictions Act. The Summary Offences Act: the offences of soliciting and procurement and living on the earnings are deleted as are the sections that relate to brothels. Amendment of the Return to Work Act (as of 1 July 2015) to provide for people who work in that industry is to be covered by provisions which relate to people who are workers, which I might also add will mean that they will need to be subject to paying WorkCover levies.

So, those are the provisions that are within the bill. I think it is important that this bill be tabled prior to the winter break so that people can start considering what their views are, the 69 members of this parliament. Certainly, on our side we all have a free vote, so people will need to consider what aspects of that they are prepared to support. If there are particular areas that they would like some further information on the Hon. Steph Key will be organising some briefings and I will be a part of those, and there may be other things that people may wish to raise. With those remarks, I commend the bill to the council.