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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (SEX WORK REFORM) BILL

Introduction and First Reading

The Hon. S.W. KEY (Ashford) (10:33): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935, the Spent Convictions Act 2009, the Summary Offences Act 1953 and the Workers Rehabilitation and Compensation Act 1986. Read a first time.

Second Reading

The Hon. S.W. KEY (Ashford) (10:34): I move:

That this bill be now read a second time.

My bill seeks to amend a number of pieces of legislation to effect the Statutes Amendment (Sex Work Reform) Bill 2012. I will seek, later in my contribution, to table an explanation of clauses. I would like to thank everyone who has made the introduction of this bill possible. Special mention needs to be made to the Sex Industry Network (SIN), the Scarlet Alliance, the Australian Sex Workers Association, the Australian Services Union, the Working Women's Centre, the Equal Opportunity Commission, the Ashford electorate staff and volunteers, and minister Gago's staff.

We have spent a lot of time debating what should go in the bill and what model of reform we have been talking about. Submissions and assistance have also been available from SafeWork; individual sex workers; the National Council of Women; Business and Professional Women; Zonta International; the Law Society; the Hon. Kelly Vincent MLC; the Local Government Association; Women's Information Support Group; South Australian Unions; the parliamentary library; the ALP, particularly PLUS; Labor lawyers; Tony Piccolo MP (member for Light); lawyers Graham Harbord and Bob Lempens; the Minister for Planning; the Minister for Health and Ageing; the City of Salisbury; the Uniting Church; the New Zealand Workers Collective; and also the member for Enfield; the Hon. Tammy Franks MLC; and the Hon. Kelly Vincent MLC. We also had considerable assistance from the groundwork that was done by the member for Croydon, the Hon. Michael Atkinson.

While there was support for the decriminalisation of sex work in South Australia, a number of qualifications were also voiced in regard to all sex workers being decriminalised and where sex work should take place. I need to place on the record that, although I did have a very good response from many people, some of whom I have named, in regard to my first draft bill, and although there was an overwhelming view that decriminalisation was the model, there were certainly some concerns raised as well.

Over the past two years I have had the opportunity to visit many different jurisdictions—the ACT, Tasmania, Western Australia, New South Wales and Victoria—to discuss how their systems work or do not work. I also had the opportunity, when I visited the Netherlands, to speak to sex workers directly in their workplaces, and find out from them how that system worked, as well as to the justice departments and various public servants who had administration of sex work in the Netherlands.

Through my visits around Australia I have had an opportunity to speak to ministerial advisers, ministers, and in some cases premiers, in regard to how they think the sex work industry should or should not operate. I have had the benefit of attending many fora, meetings and films, many of which I organised, regarding information on this area. I have to thank members in this house and also the other place for their attendance and input. It has been really important to be able to have those debates with you.

There are a number of different models that operate in the sex industry both globally and locally, particularly locally in Australia. Depending on the country or jurisdiction, sex work can be criminalised, legalised or decriminalised. Advice from workers and sex worker organisations, as well as the considerable research I have done and had done for me, has led me to support the decriminalisation model.

I have been particularly influenced by both New South Wales and New Zealand. In the case of New South Wales, since 1995 sex service premises have been able to operate like other businesses, and they have also been limited by local government planning laws. Individual sex workers are able to operate, escort agencies are not subject to regulation, and street-based prostitution is allowed in some areas. Of course, street-based sex work in New South Wales has been a legal occupation since 1979.

Scarlet Alliance say that since 1975 the New South Wales sex industry has been able to operate without fear of police corruption or arrest. They go on to say that this is incredibly important as sex workers are only now beginning to feel they can seek police assistance without fear of prosecution or arrest and actually come forward and report instances of rape, assault, theft and other crimes against them like any other person.

One of the other pluses in this model is the rights of people with varying abilities and disabilities to access sexual expression. I am sure many older people have also availed themselves of sex work services, too. My bill, if passed, will allow this to happen in South Australia in a decriminalised model. It is funny, you know, my mother, Ms Steve Key, a social worker and activist, was advocating the need for all people, particularly the aged but also people with disabilities, to be able to access sex services—and this was in the late 1970s, early 1980s. Typically, and I am not sure that my siblings and I really understood what she was on about. For us it was yet another important social justice issue she would bring to our attention. Now when I look back on what she was saying, working both in the aged care area and the disability area and certainly as a health officer, she felt this was a really important change that needed to happen—and I must say that I totally agree with her.

We have had the opportunity recently of being educated by some of the people who work in the disability area, particularly Touching Base, and I think that for many of us in this place that has changed our view about the need for access to those services for people who choose to access them.

Obviously the New South Wales system has its problems, and the more I read the more I realise that there is still work to be done and there still needs to be reform. It is interesting to note some of the works. Author Eric Glatz, in his work entitled Prostitution rights says that decriminalisation takes the sex work industry from a jurisdiction of the criminal code. It means private sexual acts between consenting adults are placed outside the realm of criminal laws. It would essentially bring the informal practice of tolerance of sexual behaviour out into the open without spending dollars and endless energy marginalising and prosecuting sex workers or even incarcerating them.

New Zealand's Prostitution Reform Act 2003 (PRA) and its operation over the past five years has been extensively reviewed by a New Zealand government advisory committee. In its 177-page report from May 2008 it says in its conclusion:

The PRA has been in force for five years. During that time, the sex industry has not increased in size, and many of the social evils predicted by some who opposed the decriminalisation of the sex industry have not been experienced. On the whole, the PRA has been effective in achieving its purpose, and the committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously.

More recent data that reviews the New Zealand reforms says that the decriminalisation of New Zealand's sex industry has resulted in safer, healthier sex workers. The mid-2010 book entitled Taking the crime out of sex work: New Zealand sex workers' fight for decriminalisation, edited by L. Fitzgerald, C. Healey and G. Abel, reflects 772 sex workers who had been interviewed. They say that the relationship between sex workers, particularly street workers, and police has improved. Our evidence shows that there is compelling evidence that decriminalisation has achieved the aim of addressing sex workers' human rights and has a positive effect of their health and safety.

As a former worker advocate and trade unionist—I still consider myself to be an advocate, by the way, as I am sure we all do—I am keen to be able to deliver on sex workers having the same rights and responsibilities as other workers. This has been at the forefront of the campaigning that I have been doing. My attempts to achieve this, though, have been compounded by the fact—

The SPEAKER: Excuse me, member for Ashford. Can we have the noise level down a little bit please? It is getting very loud. Thank you.

The Hon. S.W. KEY: My attempts to achieve this have been compounded by the fact that the South Australian Fair Work Act 1994 does not really cater for commercial sex work, even with amendments, and particularly does not cater for contracts of employment in this area. In addition, it would have been difficult to establish an employment relationship within the context of commercial sex work.

Interestingly, the commonwealth Fair Work Act 2009 does cover private sector employment, and my advice is that there are some general protections for sex workers, regardless of their employment status. As the commonwealth act is under review presently, there may be an opportunity for national employment standards to apply to all permanent workers in the commercial sex industry.

Unfortunately, the word 'permanent' is a bit of problem, because many of the sex workers, certainly in South Australia, as I understand it, either work for themselves or work in ones or twos. It is not common that sex workers in South Australia work in sex work premises, although we may think that is the case; that may change.

Certainly, the usual industrial remedies that I would look for are not necessarily going to be easily translatable in this area, at least not for a while. There is scope, however, to introduce work, health and safety provisions into the industry and, should my bill be successful, this is something that I will be looking at. From memory, the ACT, New South Wales and Western Australia have a health and safety code of practice, so this is something we can look at.

I have had advice from many different sources, particularly people who work in the workers rehabilitation and compensation area, and I am advised that the provisions I have to amend the Workers Compensation Act 1986 can make provisions for both sex workers and also for employers who employ commercial sex workers.

I commend the bill to the house, and I hope that members will choose to support the decriminalisation model. I look forward to hearing contributions from other people in this place. I seek leave to have the explanation of the clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 5—Interpretation

This clause makes a consequential amendment by deleting the definition of 'common prostitute', a term which will no longer appear in the Act.

4—Amendment of section 270—Punishment for certain offences

This clause deletes section 270(1)(b), a paragraph dealing with common law offences relating to prostitution, and is consequential upon the abolition of those offences.

5—Variation of Schedule 11—Abolition of certain offences

This amends Schedule 11 of the Criminal Law Consolidation Act 1935 to include common law offences relating to prostitution to the list of common law offences abolished by that Schedule.

Part 3—Amendment of Spent Convictions Act 2009

6—Insertion of section 16A

This clause inserts a new section 16A into the Spent Convictions Act 2009. The new section provides that convictions for prescribed sex work offences (which are listed in new section 16A(2)) are taken to be spent for the purposes of that Act as soon as the new section commences.

Part 4—Amendment of Summary Offences Act 1953

7—Amendment of section 4—Interpretation

This clause deletes the definition of 'prostitute' from the interpretation section of the Summary Offences Act 1953, as the term will no longer appear in the Act.

8—Amendment of section 21—Permitting premises to be frequented by thieves etc

This clause amends section 21 of the Summary Offences Act 1953 to delete references to 'prostitutes' in that section.

The offence set out in the section (committed by a person who permits premises to be frequented by specified persons, or who is in premises that are frequented by specified persons) will no longer include prostitutes among the specified persons.

9—Substitution of section 25—Soliciting

This clause effectively amends the existing offence comprised in section 25 of the Summary Offences Act 1953 by limiting its operation to where a person is, in public, actively accosting or soliciting people for a purpose related to commercial sex work.

The prohibition does not extend to advertising for commercial sex services: the regulation of such matters occurs under the Development Act 1993 and similar legislation.

Former section 25(b)—loitering in a public place for the purpose of prostitution—will no longer amount to an offence.

10—Repeal of sections 25A and 26

This clause repeals sections 25A and 26 of the Summary Offences Act 1953.

Section 25A related to the procurement of persons for prostitution, and is based on the illegality of sex work. That will no longer be the case.

However, the repeal of the section does not affect the provisions of Part 3B Division 12 of the Criminal Law Consolidation Act 1935, which deals (amongst other things) with offences relating to sexual servitude, deceptive recruiting for commercial sexual services and the involvement of children in commercial sexual services.

Section 26 related to living off the earnings of prostitution. With sex work no longer, in general terms, being illegal, this offence becomes redundant. However, it is again worth noting that the repeal of this section does not affect the operation of other laws (such as the Criminal Law Consolidation Act 1935) regulating criminal behaviour, including where the behaviour occurs in the context of sex work.

11—Substitution of Part 6

This clause inserts a new Part 6 into the Summary Offences Act 1953, setting out some new offences that relate to the provision of sex work.

New section 27 defines key terms used in the new Part, including by clarifying what is, in fact, a sexual service.

New section 28 creates several new offences in the context of the provision of sexual services on a commercial basis. First, a person cannot request that he or she or any other person be allowed to have unprotected sex when engaging in a high risk sexual activity (which is defined in the section). Second, a person cannot require or encourage a person to engage in a high risk sexual activity without using an appropriate prophylactic. Third, a person cannot prevent or discourage another person from using an appropriate prophylactic when engaging in a high risk sexual activity. The provisions apply both to employers and clients of sex workers.

New section 29 creates an offence of providing, or causing or permitting the provision of, sexual services on a commercial basis at premises located within a prescribed distance of protected premises.

Subsection (2) of new section 29 sets out circumstances in which the offence does not apply, including where a carer organises for commercial sexual services to be provided to the person for whom the carer is caring at premises owned or occupied by the carer. It will not constitute an offence for an owner or occupier of premises to use the premises for the provision of sexual services on a commercial basis if the relevant protected premises are only established after the owner or occupier has commenced doing so.

Subsection (6) defines what constitutes protected premises: they are premises used for purposes such as providing child care centres, kindergartens, preschools, primary or secondary schools and religious services, as well as premises at which other services prescribed by regulation are provided.

The prescribed distance is different in the CBD to other areas: it is 50 metres in relation to the Adelaide CBD (reflecting the density of the area) and 200 metres in other areas such as suburbs and country towns.

It is a defence to an offence against the section if defendant is able to prove that he or she did not know, and could not reasonably have been expected to have known, that particular premises were protected premises.

Part 5—Amendment of Workers Rehabilitation and Compensation Act 1986

12—Amendment of section 3—Interpretation

This clause makes an amendment to the definition of 'employer' in section 3(1) of the Workers Rehabilitation and Compensation Act 1986 that is consequential upon the insertion of new section 6C below.

13—Insertion of section 6C

This clause inserts new section 6C into the Workers Rehabilitation and Compensation Act 1986.

The new section provides for a number of matters that are related to the repeal of certain offences relating to prostitution by this measure.

In other words, the fact that a person can, within limits, lawfully engage in the provision of commercial sexual services as her or his occupation means that that occupation should be included in the occupations to which the Workers Rehabilitation and Compensation Act 1986 applies, and so extends the protections that the Act provides in respect of the rehabilitation and compensation of workers who have been injured in the course of their work.

To do this the clause includes sex work to be work of a prescribed class, so that the arrangement between a sex worker and their employer is recognised as a contract of service, provided it satisfies the requirements set out in paragraph (a) of the new section.

It should be noted that by doing so, employers of sex workers will need to be registered under the Workers Rehabilitation and Compensation Act 1986 in the same way as other employers.

Section 6C(b) clarifies that a person to whom commercial sexual services are provided is not an employer for the purposes of the Workers Rehabilitation and Compensation Act 1986, nor is a person of a class prescribed by regulation (which may include, for example, a person organising the provision of commercial sexual services on behalf of a disabled friend).

Section 6C(c) provides that the WorkCover Corporation cannot, when considering whether to extend the protections of the Act to a self-employed sex worker under section 103 of the Workers Rehabilitation and Compensation Act 1986, refuse the person's application simply because he or she is engaged in sex work. This provision is intended to ensure that a sex worker is treated no differently from other applicants.

Schedule 1—Transitional provision

1—Application of section 59(1) of Workers Rehabilitation and Compensation Act 1986 to certain employers

This clause provides a transitional provision that provides a 'grace period' for employers of sex workers to apply for registration under the Workers Rehabilitation and Compensation Act 1986.

Section 59 of that Act provides an offence of employing a person in employment to which that Act applies if the employer is not registered with the WorkCover application.

The transitional provision will allow employers a reasonable time to prepare their applications and apply for registration.

Debate adjourned on motion of Dr McFetridge.

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