Bills

Statutes Amendment (Decriminalisation of Sex Work) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2014.)

Dr McFETRIDGE (Morphett) (10:32): I have been looking at some notes in my files. On all these issues, as members of parliament we keep these files and, looking at my notes on prostitution reform over the years, I found the speech notes that were prepared for me back on 6 September 2012 and, unfortunately, I can read those again today. I have forgotten how many times we have had to deal with this issue in this place, and it is not going to go away, just like voluntary euthanasia and a lot of other conscience issues. This is the job of this place: this is the job of members of parliament, to debate these issues.

I encourage all members in this place, even if you do not agree with these issues, if you want to serve your constituents correctly (that is, reflecting their conscience, not your own), you should support this legislation through its second reading and then you have the opportunity in the committee stage to go through every clause and every line, and I am sure that the member for Ashford, and others in this place who are supporting this legislation, can then answer your questions.

You can thoroughly examine the bill and, if you do not agree with it, that is the time, because we do not get much time: we get 10 minutes to speak about this this morning, but in committee you get a much longer time to speak about this. To me, that would be the best tactic for anybody who has issues, queries or opposes this legislation.

This legislation has been introduced by the member for Ashford again, and I applaud her courage for this because, as a member of parliament, you need to stand up and be counted. I think I mentioned the other day that my wife received a letter telling her to pray for me because I am going to hellfire and damnation because I actually speak about these issues. I get up and talk about these issues.

Those sorts of insults to my family members I really object to. Do it to me: do not do it to my family. Come to see me, tell me what you are thinking and I will tell you what I am doing—and that is representing my constituents, the constituents of Morphett. If they do not agree with the point I am putting across in this place with this legislation, they are more than able to vote me out at the next election. I had an increased majority at the last election, so I must be doing something right. Even with those who might be considered to be conservative Christians in my electorate, we have a very good dialogue on many issues and they support my intent in representing them.

This particular piece of legislation, Statutes Amendment (Decriminalisation of Sex Work) Bill, not to be confused with the 2012 one, is here again and it will keep coming. I understand that parliament is going to be prorogued, so today will not be the finalisation of this legislation. We will see it again, I hope. The member for Ashford will reintroduce it in the next session of the parliament and we will be able to debate it then and debate it to its full extent.

In the meantime, I encourage all those who have issues with this—who support it, who oppose it in any way, shape or form—to write to us. Write to us, phone us, email us, but do not try to do what has happened recently to the Fleurieu Milk Company and use a social media site to try to castigate and berate without any real knowledge and force people to retreat because of an overwhelming, unfair attack upon them. This will not happen in this case, though, I can guarantee that. We have the courage of our convictions in this place, and I hope that members stand up.

The Statutes Amendment (Decriminalisation of Sex Work) Bill is an opportunity to bring the sex industry into the 21^st century by considering it work like any other work. This provides those engaged in the industry a range of work and human rights provisions currently denied them. Sex workers are severely disadvantaged in the current circumstances while sex work is not considered 'work' and while those engaged in it are stigmatised by current attitudes.

They are less likely to seek assistance when they are at risk from unscrupulous clients or in some cases from those who are involved in the industry. I had some people come to talk to me the other day about the involvement of crime and the behaviour of some of the pimps. There are issues there that need to be sorted out, and this is why you need to be able to regulate these industries, as I was saying to one of my colleagues a few moments ago. You cannot just allow it to drift on the way it has in the past.

As to prohibition—whether it be alcohol, tobacco or sex work, in this case—you are never going to stop it, so you might as well grasp the nettle and make sure that you are going to protect people who could possibly be exploited as parts of this particular section of society.

Recently, New Zealand decriminalised the industry, and I note that the national government were re-elected with a record majority in their own right, so it obviously did not do them any harm. I tell the conservative members on this side of the place and any others in here to look across the ditch and see what happened there. The sky has not fallen in because of this change.

The New Zealand report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003 reports that decriminalisation of the sex industry has not led to an increase in the number of sex workers operating in New Zealand. This is the other furphy, that we will have a brothel on every corner of every street; that is not going to happen. There are safeguards put in place to protect not only individuals but also the broader society.

The bill before the house does not allow younger people to enter the sex industry. The age of consent remains the same. This bill does not seek to promote under-age sex industry engagement; that remains the same: the age is 18. The bill does not permit those under 18 years of age to procure sex work services. The bill does not allow those under 18 to perform sex work. By decriminalising sex work, the bill provides for individuals to benefit from the rights afforded to other workers, including occupational health and safety provisions.

Currently, street-based sex workers are severely disadvantaged. They are more likely to be prosecuted than indoor workers. They are also subject to greater levels of violence and more likely, according to international research, to experience greater pressure to use unsafe sex practices than other sex workers. In some areas street-based sex workers are the most visible part of the sex industry, sometimes drawing strong reactions from some parts of the community.

Any estimate of the size of any sector or the sex industry is difficult, as activity in this area may be temporary or sporadic. New Zealand's decriminalisation of street-based sex workers has meant that sex workers and their clients do not have to be as wary of their activities. Workers are safer, their activities and negotiations are not hidden or clandestine.

By focusing on industrial issues and by protecting the rights of sex workers, we can ensure that owners and operators of sex work premises, including brothels, comply with relevant legislation. We can also require that sex work businesses display safe sex and health promotion messages, and that operators ensure only safe sex is practised. The bill will not allow sex work businesses to operate within 200 metres of schools, childcare centres and churches, and this will be further limited to 50 metres in the Adelaide Central Business District.

By moving to decriminalisation of the sex industry we are removing the need for prostitution-specific regulations imposed by the state. Existing statutes and regulations will cover employment conditions for other industries. Those involved in sex work have the same right and responsibilities as other workers (for example, paying taxes). From a pragmatic perspective, the sex industry will likely remain a constant in society, and on that basis it should be made as safe as possible for its predominantly female workforce. The continued criminalisation of the sex industry will continue to cause damage to the women involved.

New South Wales has decriminalised sex work; since 1995, New South Wales brothels have been able to operate like other businesses. Victoria controls the sex industry through a combination of planning processes and a licensing system. Western Australia prohibits all forms of prostitution; however, brothels have for many years operated under a de facto policy whereby, although technically illegal, they are free to operate.

The sex industry was legalised in Queensland in 1999. Sexual services can be provided by sole operators or in licensed brothels. The Prostitution Act 1992 in the ACT regulates certain aspects of prostitution. It provides for licensing of individual sex workers and brothels in certain circumstances. Its legal framework is one of partial legislation. The Northern Territory provides for licensing of escort agency businesses and regulates sex work.

In summary, it is time for South Australia to move away from a criminalised model to a more liberal approach, and therefore ensure greater protection for workers. I encourage all members in this place to look at this legislation. If they do not want to speak on it during this debate in this particular session of parliament, I advise them to go away and have a look at what the bill is about, speak to me or to the member for Ashford, who is the font of wisdom on this. We will be speaking to other people. We are continually being lobbied about the Nordic model—

The Hon. S.W. Key: I am the font of wisdom in theory.

Dr McFETRIDGE: In the theory and the legislation behind the protection of sex workers. There is a need to look at all models, and I am looking at the Nordic model at the moment. I know there are some issues there. If that is one that is going to be acceptable to members of parliament, perhaps that is where we start. Then we can move on and make sure that the outcome we have is a long-term solution for a long-term problem. This has been going on for thousands and thousands of years, and anybody who thinks for a moment that they are going to prohibit or stop it is dreaming.

Ms BEDFORD (Florey) (10:42): Sex workers in South Australia have endured may years of ostracism and marginalisation within our community. In this 21^st century, sex workers should not still only be judged against moralistic principles which impact negatively upon the way they are considered and the opportunities afforded them.

Why do people enter the sex industry? While there are some research findings concerning Australia, overseas research, particularly from New Zealand, through the Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, published in May 2008, is helpful in understanding this phenomenon.

Like any industry, there is a combination of factors. For young street workers, there are instances of abuse and neglect, a breakdown in caregiving, school exclusion, homelessness, and a general lack of money. Other factors reported to draw people to work in the sex industry include excitement, encouragement from others involved in sex work, and a way of seeking affection. Of most importance is that sex work can offer more money than is available through other avenues. Other research regarding Australian sex workers shows that most had entered into the sex industry to support families, pursue higher education, pay off debts and to buy cars or houses. In this regard, people engaged in the sex industry are no different to other Australian citizens.

The bill before the house—the Statutes Amendment (Sex Work Reform) Bill—addresses a number of matters that bring the sex industry in line with the 21^st century workplace provisions. It also seeks to redress the inappropriate and unfair administrative practices concerning the Spent Convictions Act 2009. This act has a general provision in section 8 that:

(1) A conviction for an offence…is spent on completion of the qualification period for the conviction.

Members might need to be reminded that section 7 of the Spent Convictions Act 2009 gives direction regarding the determination of qualification periods:

(1) Subject to this Act, the qualification period for the conviction of a person for an offence is—

(a) in the case of an eligible juvenile offence, other than where the person was dealt with as an adult—5 consecutive years; or

(b) in any other case—10 consecutive years, from the relevant day for the conviction for the offence.

(2) If during the qualification period for a conviction (the first conviction) the person is convicted of another offence (the second conviction), the time that has run as part of the qualification period for the first conviction is cancelled and the relevant day for the second conviction becomes a new relevant day for the first conviction (and a conviction for a third offence within the period that then applies will have a corresponding effect on the first and second convictions, and so on for any subsequent conviction or convictions).

(3) In addition—

(a) if at the end of a period that applies under subsection (1) or (2) the person is a registrable offender under the Child Sex Offenders Registration Act 2006 who is subject to reporting obligations imposed by Part 3 of that Act, the qualification period is extended so as to expire when or if those reporting obligations cease or are suspended under that Part; and

(b) if during the period of extension that applies under paragraph (a) the person is convicted of another offence, the conviction has the same effect on any previous conviction that is subject to the period of extension that a second or subsequent conviction has on a previous conviction or convictions under subsection (2).

(4) For the purposes of subsections (2) and (3)(b), a conviction for a second or subsequent offence will be disregarded if—

(a) the offence is a minor offence (including in a case where the conviction with respect to the minor offence is constituted by a finding under section 3(5); or

(b) the conviction is quashed; or

(c) the convicted person is granted a pardon.

(5) A period under a preceding subsection may commence before the commencement of this Act and, in such a case, the qualification period will be completed—

(a) on the commencement of this Act; or

(b) on the day on which the qualification period would have been completed if this Act had been in force continuously since the day of the relevant conviction,

whichever is the later.

However, in practice, sex workers who have been convicted of an offence often do not realise the number and range of offences against them until they find themselves in need of a police clearance, whether that is to work in another area or even to assist with reading, perhaps, or other activities at their child's school or sports group.

Consider this case: a young woman takes a job at a health studio in the 1990s. She has no qualifications and is happy to take the position of receptionist. She is unaware that there are 'extras' being provided at this health studio. Police raid the studio and this young employee is holding the keys to the establishment because she has been charged with opening up the premises for business each day. She also takes moneys from customers for the massages they have received. The police charge her with being on the premises, living off the earnings of prostitution and keeping premises for prostitution.

Many years later, she finds that, although she has worked her way through a professional degree, she cannot find more than casual short-term work because her employer or employers are alerted to the history of her convictions and they are not in fact spent, as she had been led to believe. There is little, if any, chance of her obtaining work in human services and very limited, if any, potential in engaging in employment regarding children. Her ability to secure full-time work is affected even though she has completed her degree. Her credit rating is affected. She cannot secure a loan; it is very difficult to purchase a house or a car. If she wanted to establish her own business in other fields it cannot be assured that insurers will facilitate insurance coverage.

More significantly, it is important that we appreciate that while we do not recognise the sex industry as work there is no WorkCover for sex workers; neither is there provision for superannuation. Therefore, from the sex worker's time in the industry there are no nest eggs to draw on for post work financial support. We are therefore forcing this group of workers to be welfare dependent, possibly for housing and certainly for their pension.

This type of marginalisation is quite significant. However, I am advised women in these circumstances endure significant levels of stress, which in time contribute in many cases to a deterioration in their mental health. Imagine not being able to share or disclose some part of your past and not applying for positions with better terms and conditions or payment because you are fearful that your unspent convictions will surface.

While we do not know the full range and extent of the number of women and men affected by this set of circumstances, we do know that many are not able to make their full and true contribution to the community in which they and we live. There are not able to fully participate in the economy and contribute as other workers do. We also deny them the opportunity to enjoy their full potential in our economy, in our community and society in general, and we certainly limit the options in many ways in many areas. A lot of doors are closed, despite the provisions of the Spent Convictions Act 2009. Therefore, it is really a matter of discrimination.

This bill provides for amendments to the Spent Convictions Act 2009 by changing section 16A to 'have convictions of a person for a prescribed sex work offence' to be 'taken to be spent'. I am clear the long-term ramifications for how we see and judge the sex industry, support people who have been convicted of sex industry offences and subsequently live peacefully within our community will have major benefits for all of us. In commending the bill to the house, I am advised that there will be a number of briefings arranged as with the last bill, so there will be ample time for people to understand and contribute to the debate.

The Hon. P. CAICA (Colton) (10:49): I rise in support of the member for Ashford's Statutes Amendment (Decriminalisation of Sex Work) Bill which seeks to enhance the working terms and conditions and subsequent standing in the community by recognising that this work should be afforded the protection that most of us in the community enjoy in our daily working lives. I commend the member for Ashford for again bringing this bill to the house.

There are members of the community and, indeed, of this house who claim that the bill actively works to undermine the status of women in the community by supporting the sex industry in which, those opposed claim, the people engaged are abused and exploited. I say that not addressing the matters is in fact making matters worse. Consider the following.

People in the sex industry, men and women, are subject to a range of marginalised processes by many parts of our community. It is not my intent to explore here today why individuals enter the industry. That has been canvassed by other members recently—as recently as just a moment ago. However, it is clear that, by defining the industry as 'work', we can provide some occupational health and safety measures that cannot always be assured at present.

The bill seeks to decriminalise the sex industry by allowing it to operate under a legislation model, and permit it, provided it is conducted in accordance with that legislation and regulations. By providing a way to manage the industry, and by bringing it under a legal framework, we enhance the situation in which such workers are found and, at the same time, we minimise the potential activity of those individuals or activities not supported.

Through decriminalisation, laws that prohibit, criminalise or restrict the act of prostitution are repealed so that sex work is seen as being equivalent to all other work; that is, we recognise that sex work has been and continues to be an inevitable part of our society. The objectives of specific regulation are to minimise harm to those involved in the industry.

It is time that the sex industry is recognised. I would say it is well past the time here in South Australia for sex industry workers and the sex industry to be recognised as a legitimate business and, as such, come under conventional employment and health regulations and be subject to standard local council business. Those involved in the industry will thereby have the same rights and responsibilities as other workers.

As mentioned in the member for Florey's contribution, or maybe it was the member for Morphett's, they will also be obliged to, as we all are, pay taxes for the work that they undertake. Sex industry workers argue that this type of model provides the best for their needs, as it removes the ongoing stigma of prostitution and subsequent discrimination and allows workers access to the rights and protections held by other workers in legitimate employment.

If we address a human rights perspective in which the core position is that women, regardless of the industry, have a right to work in any chosen field and be in control of their earning potential, decriminalisation is therefore the best means to achieve the goals that I noted above. Recognising the sex industry as legitimate in its employment status allows sex workers to enter into legally binding employment contracts—a fundamental expectation of most in the Australian workforce but, to date, denied those engaged in the sex industry.

When prostitution is constructed as a criminal act, it prevents sex workers from reporting crimes and violence committed against them. The criminal nature of illegal prostitution has, in other states, been reported to be the target of harassment of those regulating, including police, and therefore establishes a distrust of those regulators.

Currently, sex workers, of both genders, are not protected. Worse, once convicted—and it was interesting to hear the member for Florey's contribution on this matter—South Australian sex workers are apparently discriminated against and marginalised for a very long period of time. Members of this house have been advised that the spent convictions provisions of the Spent Convictions Act 2009 are not applied uniformly, and individuals have reported that they have been surprised to find out that, on seeking a police check for any number of purposes, their transgressions have not been expunged and many subsequent opportunities afforded most in this community are denied despite industrious and diligent endeavours to live a model citizen's life in the interim.

Why must a woman, convicted because of her naïveté in taking, in her late teens, a receptionist position in a health studio that provides massages continue to pay for that decades later? It is not unusual for women in such circumstances to be denied opportunities for long-term permanent employment, despite the academic credentials achieved by some, and a credit rating of any sort. For example, how are they to secure a car, long-term accommodation or a mortgage?

Those in the community who are opposed to the sex industry say that sex workers should just get out and move into some other form of employment. How can this happen when they are faced with sustained, systemic discrimination and marginalisation? We should also remember that there are sex workers who prefer to remain in the industry. That said, should they be condemned to not having economic, social and work rights that the rest of the community takes for granted?

Previous speakers have mentioned the decriminalisation that has occurred in the sex industry in New Zealand and I want to make this point: we are seeing a very good relationship over there between the equivalent of SafeWork here in South Australia, WorkSafe; the health department; the police; and everyone who has undertaken their obligations in discharging their responsibilities under the regulations. What we have there is a much safer and more defined industry that is not only protecting those workers in the industry but, indeed, what we hope to achieve here in South Australia, which is protecting consumers of that particular industry.

As mentioned earlier, we have also seen that New South Wales has decriminalised the sex industry. Since 1995, as mentioned by the member for Morphett, brothels were able to operate like any other business. Throughout Australia, there have been moves to ensure that this industry is properly regulated, for the reasons that I and other speakers before me have articulated. It is certainly my view, and I believe it ought be the view of this house, that it is high time for South Australia to move away from an archaic criminalised system and to take on a more liberal approach, ensuring greater protection and inclusive community standing for sex workers.

In fact, I find it quite incredible that we are here again today speaking on this matter. It is high time that we remedy what is a glaring anomaly here in South Australia. The member for Morphett will tell me if I am wrong in what I say but, to paraphrase the member for Morphett, South Australia was once a leader in progressive aspects of our community and I think on this issue we have certainly been dragging the chain in addressing an issue that needs to be addressed. Quite simply, it is not going to go away. It is going to continue to operate within our community. There will continue to be those people who work in the sex system. Currently, they work in a sex system that makes their operations illegal.

We need to remedy this. We need to remedy it for a variety of reasons, not least of which is to afford those workers in the sex industry the necessary protection that they deserve through regulation, and to protect those consumers who will continue to seek those services, even if it remained a criminal activity. I urge every member of the house to support this bill and I again commend the member for Ashford for her role in bringing this matter to the house for its consideration.

Debate adjourned on motion of Mr Gardner.