Bills

Statutes Amendment (Decriminalisation of Sex Work) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 May 2018.)

The Hon. T.A. FRANKS (16:15): I rise to continue my remarks that were briefly made in the last week of sitting, regarding the decriminalisation of sex work and the statutes amendment bill to decriminalise sex work that we are debating in this parliament. This is a reintroduction of the 2015 private members' bill that was brought to this place by the Hon. Michelle Lensink. It was passed in the Legislative Council in strong numbers, with 13 votes to 8, before lapsing at the end of last year in the House of Assembly, the other place, when the parliament was prorogued.

The bill also builds on the previous bill and the work of the Hon. Steph Key, the former member for Ashford, on the same subject. I acknowledge the many years of past work that have gone on here in the campaign for the decriminalisation of sex work. This is not the first attempt in this parliament at decriminalising sex work or effecting sex work reform. Those efforts date back to the 1980s, at least. Despite all these previous efforts, however, we are in a situation where South Australia has the most archaic and the oldest sex work laws in the country, and we need reform now.

There are approximately 2,000 sex workers currently operating in our state, many of whom work privately and are not employed by what is known as a brothel. This bill is based on the New Zealand model of decriminalisation of sex work and it seeks to achieve the following: safeguard the human rights of sex workers, protect sex workers from exploitation, promote the welfare and occupational safety and health of sex workers and create an environment conducive to public health. This bill will amend the Summary Offences Act 1953 and the Criminal Law Consolidation Act 1935, which criminalises activities related to sex work in South Australia.

The new legislation, if passed by this parliament, will bar minors from conducting sex work and prohibit the provision of services to children.

The PRESIDENT: The Hon. Mr Ridgway, the member seeks you to show courtesy.

The Hon. T.A. FRANKS: Mr Ridgway, it would be really appreciated if you could get off the phone—or at least not talk on the phone. Just listen. It would be nice if all the members in this council would listen to this debate. Thank you, Mr President, for your protection.

It will also address occupational health and safety concerns of sex workers. Due to criminalisation, sex work is unregulated and without industrial or workplace health and safety protections. Criminalisation has created an environment of stigma, discrimination and systematic exclusion that prevents sex workers from accessing health and support services and increases the risk of violence and abuse. It has also silenced sex workers from reporting to the police sexual abuse, harassment or damage to property caused by their clients.

Among a number of notable supporters, there are many in support of the decriminalisation model. Those include UNAIDS, the World Health Organization—indeed, the former Secretary-General of the United Nations, Ban Ki-moon, is on record—as well as bodies such as Amnesty International, which in 2015 announced their support for the full decriminalisation of all aspects of consensual work. The work that they did to develop that policy position included references to Australia.

I also acknowledge support for the model of decriminalisation from those sex workers themselves, such as the New Zealand Prostitutes Collective, as well as the Sex Industry Network in South Australia, Scarlet Alliance, the Sex Worker Action Group, Gaining Empowerment Rights and Recognition (SWAGGERR), as well as women's groups such as the YWCA, the Working Women's Centre, Zonta International, Soroptimists and the Women Lawyers' Association. As I introduced this bill last week it came with the support not only of the Women Lawyers' Association but of the Law Society of South Australia, both of whom put out media statements recommending the passage of this bill as it stands.

However, the stigma that is created by our current laws allows abuses for which we should not be standing. This bill, which previously went through a select committee, embodies a principle of 'nothing about us without us'. In the spirit of this I also welcome the supporters of this bill and those affected by the current laws who are not only with us today in the gallery but also those who have long advocated for this reform, such as Ari Reid and others who have had a voice in this space that certainly those of us who wish to listen have heard loud and clear.

Sex work is their occupation. This occupation has long existed and it will exist into the future. The antiquated laws surrounding the sex work industry in this state need an overhaul and sex workers themselves deserve and need the same rights and protections as any other worker. As it stands, this industry is often cloaked in criminality. This puts workers, who are in the majority female but by no means all female or female identifying, at risk every single day. Not only is their safety at risk but if they change their career later on their opportunities for different work or volunteering may be limited due to not only stigma but, of course, enforced discrimination, and if they accrue convictions they will follow them for the rest of their days.

Therefore, this bill also amends the Equal Opportunity Act to include discrimination on the grounds of being or having been a sex worker to the criteria for establishing discrimination. Whether you believe that sexual favours in exchange for money should or should not be a crime, it should not overshadow the fact that this is a human rights issue. The leading body on human rights, Amnesty International, has recommended decriminalisation as the model that will support those human rights.

The industry itself has been active in discussions and instrumental in shaping this bill which safeguards the rights of their workers. Most importantly, it is a bill that has involved and respected the input of those very workers that it concerns. A consideration of current laws may lead to some confusion, while the specific practice of sex work is not of itself actually illegal in South Australia. Exactly what is illegal and what is not is a little puzzling which is why, again, we have the need for such reform.

In the current Summary Offences Act, offences include soliciting, which is loitering or accosting someone in a public place, procuring for prostitution and living on the earnings of prostitution. Part 6 of the act refers to brothels with a range of offences including the keeping and managing of brothels, permitting premises to be used, and various others. Then there is the Criminal Law Consolidation Act which makes the keeping of a common bawdy house (a brothel) an offence.

Under this new bill sex in a public place will still be illegal; sex with a child will still be illegal; sex with a child purporting to be a sex worker will still be illegal; sex with someone who is not consenting will still be illegal; and trafficking and sexual servitude will still be illegal. None of these things will magically become legal because of the passage of this bill.

Despite some of the offences I have outlined, nowhere in South Australian law is there a specific offence of exchanging sexual services for money. For example, it may not be expressly prohibited for a person to engage in sex work itself but it is an offence to earn a living from its earnings or to work in a brothel. There are, therefore, gaping inconsistencies that demonstrate the need for reform.

The current laws are unworkable and from a policing point of view, in May 2016, when giving evidence before the select committee that was held into the previous version of this bill, SAPOL Assistant Commissioner Linda Fellows stated:

I think it is reasonable to say, and I think we have been consistent in our views over many years, that there are some definite challenges and difficulties in policing the current legislation as it exists. We do commit policing resources to the industry; however, it is a difficult thing under the current legislation to police, and I think some of the outcomes in our court matters, where we have proceeded to criminal charges, probably reflect those difficulties.

Meanwhile, I have recently been provided with evidence that in the past few months there has been an escalation of prosecutions in the Magistrates Court for offences under parts 5 and 6 of the current Summary Offences Act. A letter from Andrew English from the Legal Services Commission, Manager of the Criminal Law Practice Division, to Leah Marrone, President of the Women Lawyers' Association of South Australia, has detailed how duty solicitors at the Adelaide Magistrates Court have kept statistics on offences involving sex work between 3 August 2017 and 20 April 2018, noting the following:

The evidence would seem to suggest that SAPOL are embarked upon a significant operation of law enforcement in this area the likes of which we have not seen in South Australia for more than two decades.

To me, this underscores the need for urgent reform. So while interstate jurisdictions such as New South Wales have gone down a path of decriminalisation, there is currently a very strange use of police resources in South Australia, and as members of parliament we should be questioning what is achieved by all of this. Furthermore, it reinforces an environment where workers do not have a trusting relationship with the police and, therefore, are put at such greater risk of personal harm.

Activities are pushed underground and other potential illegal activities are unlikely to be reported to the police in this environment. We must listen to those people who work within the industry who wish to keep other illegal activities away from their workplaces in order to enjoy a safe working environment. With all of these inconsistencies, there is clearly a need for reform. In making these reforms, we must listen to workers themselves, and that is why I advocate for the model of reform of decriminalisation contained within this bill where laws against sex work activities are repealed by removing the references from the criminal law.

This enables regulations covering other areas such as health and employment, enabling a focus on the health and safety of the workers and their conditions. This approach is not a new one. It currently operates in both New South Wales and, of course, in New Zealand. The changes, in fact, took place in New Zealand in 2003, and in the last 15 years the sky has not fallen in on the land of the long white cloud, and it will not fall in here in South Australia should we pursue this model.

There has been no evidence of an increase in street work in New Zealand as a result of decriminalisation. Indeed, the opposite is true. Street work in that country has diminished as a result of decriminalisation. Last week, the Law Society of South Australia put out a statement endorsing this bill and this model. It states:

The Law Society welcomes the introduction in Parliament today of a Bill to decriminalise sex work. The Statutes Amendment (Decriminalisation of Sex Work) Bill provides for the full decriminalisation of sex work, which the Law Society believes is the best model for the protection of workers, most of whom are women in the sex industry. 'After several attempts to decriminalise sex work, it's high time that existing antiquated laws are overhauled and sex workers are afforded the same rights and protections as any other employee,' Law Society President Tim Mellor said.

Mr Mellor went on to say that the safety and wellbeing of sex workers is compromised by existing laws which criminalise sex work. The Women Lawyers' Association of South Australia President, Leah Marrone, also put out a media statement endorsing this bill:

Our Association stands strongly for women's rights to full bodily autonomy. The evidence is clear that decriminalisation increases health and safety conditions for Sex Workers. We think it is vital that these workers are granted the same rights and protections as other workers in the State. It is vital that prior convictions for these offences can be spent to allow those workers to move ahead with their lives without having those convictions preventing them from gaining employment in other areas, or being involved in volunteering or various other aspects of community life. There must be full decriminalisation. No other model is appropriate or will achieve these outcomes because other models, such as criminalising those who use sex work services, criminalise the women by default and keep the industry underground.

I would note that many who do work in the sex industry actually choose to, and we should respect that choice. They have bodily autonomy and to not give women their own agency certainly is not something that I would see as a feminist principle, although those proponents of the Nordic model might perhaps disagree.

To summarise the provisions of this bill, part 2 of the bill deals with the Criminal Law Consolidation Act 1935. Section 68AA will be inserted, prohibiting services from being provided to a child, with a maximum penalty of 10 years. The offence of keeping a bawdy house (that relates to landlords) is deleted, as are common law offences related to prostitution. Amendments to the Equal Opportunity Act 1984 in part 3 are important to remove discrimination against sex workers. These changes will assist people who either have other jobs or do not wish to work in the industry.

Discrimination on the grounds of being or having been a sex worker are added to the existing grounds currently listed in the act. Part 4 of the bill deals with the Spent Convictions Act 2009, rendering convictions for prescribed sex work offences as spent, therefore dealing with the adverse effects of a criminal record. The Summary Offences Act 1953 is amended in part 5. The offences of soliciting and procurement and living on the earnings are deleted, as are the sections that relate to brothels. Part 6 of this bill deals with the Return to Work Act 2014, to extend provisions of that legislation to cover those who work in this industry, the sex industry.

In this place, I know there have been many long and sometimes heated debates about this matter. Certainly, for some it is a moral issue, but I would point both new and continuing members to parliamentary reports from New South Wales and New Zealand which have found that decriminalising their laws has been effective in improving the health and safety of sex workers, as well as in reducing crime rates.

Also, I note that in 2005 this very bill in its previous form was referred to a select committee of seven members of the Legislative Council, they being the Hon. Robert Brokenshire, the Hon. John Darley, the honourable myself, the Hon. John Gazzola and the Hon. Michelle Lensink, as well as you, Mr President, and the Hon. Tung Ngo. This committee took evidence and reported after 18 months, and by a majority of four to three the committee agreed to support this bill. However, it is worth noting, Mr President, as you well know, that all seven members of this Legislative Council who were on that committee agreed that the body of the report is a true and fair representation of the evidence.

I refer members to the report of that select committee to inform their deliberations, and I note that there will no doubt be interest from members. I expect that this will be a conscience vote among many. It is actually a party vote for the Greens. We have a policy of decriminalisation. We respect the work of both the sex work organisations themselves, such as Scarlet Alliance, SIN and SWAGGERR, and of course Amnesty International, the World Health Organization and women's groups across the world. In this way, it is our party position to support decriminalisation.

I will be hosting, with other members who are supportive of a decriminalisation model, forums for members to ask questions, to be further educated. I welcome briefings, either in those forums or on a one-on-one basis, with interested members. I urge all members to speak to sex workers themselves about the implications of this bill for them and about their long campaign for decriminalisation. I also urge members to avail themselves of that select committee report. I look forward to an informed debate, I hope a historic debate, where we finally get this done. With those words, I commend the bill to the council.

Debate adjourned on motion of Hon. T.J. Stephens.