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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-09-06 Daily Xml
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STATUTES AMENDMENT (SEX WORK REFORM) BILL

Second Reading

Second reading debate resumed.

Ms BEDFORD (Florey) (10:42): Sex workers exist throughout the world and here in South Australia as well, and they have endured and continue to endure ostracism and marginalisation within our community. I am concerned that in the 21st century sex workers are still judged almost exclusively against principles which impact upon the way they are considered and the opportunities afforded to them. This has further impact on the rights they can expect in their workplaces, their daily activities and their futures.

Why do people enter the sex industry? There are some research findings concerning Australia: overseas research, particularly from New Zealand, through the report of the Prostitution Law Review Committee and the operation of the Prostitution Reform Act 2003, published in May 2008, is quite helpful at understanding the phenomenon. Like any industry, there is a combination of factors. For young street workers there are instances of abuse and neglect at home, a breakdown in care giving, school exclusion, homelessness and a general lack of money.

Other factors reported to draw people into the sex industry include excitement, encouragement from others involved in sex work and a way of seeking affection. Of most importance, sex work can offer more money than is available to a particular worker through other avenues. Other research regarding Australian sex workers shows that most had entered the industry to support families, pursue higher education, pay off debts and to buy houses or cars. In this regard people engaged in the sex industry are no different from other Australian workers or citizens.

The bill before the house at this time, the Statutes Amendment (Sex Work Reform) Bill, addresses a number of matters that bring the sex industry into line with 21st century workplace provisions. I have every confidence and commend the member for Ashford and acknowledge her diligence and inclusivity in the sensitive work she has done on this bill and on the issue. The bill seeks to address the inappropriate and unfair administrative practices concerning the Spent Convictions Act 2009. In particular, this area of the spent convictions has long been of interest to me through contact with constituents, who remain unfairly impacted by offences, some relatively minor, committed in their youth. This act has a general provision that in section 8 states: 'A conviction for an offence is spent on completion of the qualification period for the conviction.'

Members will, I hope, reflect on that section of the Spent Convictions Act 2009 at section 7, which gives direction regarding the determination of qualification period:

(1) Subject to this section, 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 [of the act]; 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 to even assist with reading or other activities at their child's school or sports groups.

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, and police raid the studio. 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 for 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 or short-term work because her employer or employers are alerted to the history of her convictions and they are not spent, as she had been led to believe. There is little if any chance of her obtaining work in human services and limited of any potential in engaging employment regarding children.

Her ability to secure full-time work is affected even though she has completed a degree. Her credit rating is also affected. She cannot secure a loan; it is very difficult for her 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 cover.

More significantly, it is important that we appreciate that, while currently we do not recognise the sex industry as work, there is no WorkCover for sex workers and neither is there provision for superannuation. Therefore, from the sex workers' 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, contributes 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 there are many who are not able to make their full and true contribution to the community in which they and we all live. They are not able to fully participate in the economy and contribute as other workers do. They are not able to change jobs or professions. We also deny them the opportunity to enjoy their full potential in our economy, our community and society in general, and we certainly limit their options in many ways and in many areas. A lot of doors are closed, despite the provisions of the Spent Convictions Act 2009.

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 that the long-term ramifications for how we see and judge the sex industry supports people who have been convicted of sex industry offences and who subsequently live peacefully within our communities will have a major benefit for all of us; and for this and many other reasons, I commend the bill to the house.

Mr HAMILTON-SMITH (Waite) (10:50): Can I, first, commend the member for bringing this bill to the house. I know that she does it very genuinely, and I think it is a very important issue. I do remember the previous debates on this subject in previous parliaments that took different forms.

Can I say that, at this stage, I am not certain how I will vote in regard to the bill. I am happy to listen to the debate, and can I signal to the proponent of the bill that I would like to see it go into committee because I would like to ask her some questions about various clauses of the bill before I decide. So, although I may support it at the second reading, I may ultimately vote against it in the final reading once it has been through committee, and the reason for that is as I will explain.

First of all, I think that members—I cannot speak for other members, but in my own case—should vote on this matter based on their conscience but also with some consideration as to the views of their electorate and what is in the best interests of people involved in this industry. Can I say that I think it is often described as the oldest profession. I am quite certain that we will have prostitution with us for as long we survive as humanity.

However, it brings with it a range of related ills in many cases which hurt society and which hurt individuals considerably, and what we are trying to do here is come up with a law that, at the end of the day, will be fair and reasonable to everyone, and that is not easy. I remember when I previously dealt with this matter, I was attended at my office by a group of very enterprising young women who were engaged in the sex business and who put to me the argument that they were single-minded, enterprising young ladies who were running a very successful business.

They knew exactly what they were doing and they did not need any help from members of parliament to tell them how to live their lives. They explained to me how the business worked from their point of view, and they made an important point to me, and that was: who are the victims here? They made the point to me, 'We are not victims. We know exactly what we're doing. We're running a very successful business. We tend to our own health needs. We are capable, competent women. We don't feel as though we're victims. In fact, we are doing quite well out of this, thank you very much, and our customers similarly come to us for a service which we are happy to provide on a commercial basis. So, who are the victims?'

After about a hour and a half meeting with these young ladies, I came away thinking, 'Well, I understand their point, and in a way they're right.' I thought, 'Well, perhaps one needs to support this measure.' Two days later, I had a visit from three nuns, which was very, very interesting. The three nuns sat in my office. They were dressed in their habits, and I will not mention where they were from but it was from within my electorate. They went over with me the counterargument, and I must say that they were equally persuasive.

At the end of the day, I tested with them some of the arguments I had been given by the sex workers who had visited me a few days before. I said, 'Well, who are the victims here?' and they gave me their answer. Then I said, 'Well, it's always been with us, it will always be with us and you'll never get rid of it, so why should we make it even more illegal?' because one of the bills that was on the table at that time was an even harsher bill; we were given three options to make it totally illegal.

They said, 'Well, Mr Hamilton-Smith, murder and stealing have also been with us since time immemorial and will be until the last human being walks the planet. But with theft and assault you have to do all you can as a legislator to stop it.' They made an equally powerful point. That was, an argument that says, 'This has just been with us and always will be,' is not necessarily an argument to support it or to enshrine it, and they reminded me of my obligations as a legislator to keep doing what you can to get rid of those things that are not good for society.

So, I think both sides of this moral argument are persuasive, and no-one is completely right or completely wrong. I do not propose to come in here and moralise to anybody and impose my personal moral value on this issue onto everybody else in the community in this particular case. I think this is quite different to some of the other issues we have considered, such as euthanasia, same-sex marriage, and like a host of other issues on which I, one by one, make up my mind as to what I believe. I think this is a unique issue.

My view about prostitution and how it should work is simply this: I think, provided there are no victims, I see some merit in this not being an illegal act. It gets to the question of what you define as an act of prostitution. Okay, if someone provides sexual favours to someone else for a cash exchange, that is pretty simple. Is a nice dinner out and a small gift for sexual favours afterwards an act of prostitution? Well, if it was, there would be an awfully larger group of people picked up in the definition of what constitutes an act of prostitution.

If a single mother, or for that matter, a single father, or anyone else who might be struggling to make ends meet, is entering into relationships and receiving cash rewards from partners or successive partners, or some form of financial assistance, are they committing an act of prostitution, or are they just having a string of relationships that are to their financial benefit? If someone can give me a clear-cut definition of what constitutes an act of prostitution, then I will be much clearer on the issue, because I think it is a very woolly definition indeed.

My view is that if this parliament is ever to pass legislation that deals with this matter, I would like to see that legislation regard prostitution as a small business activity conducted by sole traders, if you will, who are competent and capable of managing their own lives and their own affairs. I am very sceptical about legislation that will enshrine brothels and the institutionalisation of sex working as a big business, ultimately to be run by big businesses—even publicly floated companies—or by entrepreneurs, or whatever you like, because I think that is a different thing.

I think an individual sex worker, or two friends perhaps running a small business together where they provide sexual favours for financial reward, is one thing. A powerful business interest running a large brothel in a city, where there are dozens and dozens of sex workers involved, and the comings and going and customers, and all the paraphernalia that goes with it (such as alcohol and possibly drugs) is another thing altogether. I find that latter prospect very, very difficult to deal with.

I am very sceptical about the law or the police knocking down doors at people's private homes in the suburbs where an individual may be running, on his or her account, a small business where sexual favours are provided for reward. I do not think anyone in the community would want to see that. But, it is another thing when brothels are concerned.

It is the aspects of this bill that seek to enshrine brothels that I find disturbing, and that is why, in committee, I will be particularly asking about section 25—Soliciting. To my mind, if an individual wants to solicit—a small business person trading on their own—maybe that is something that should not be made an offence, which is what this bill actually proposes.

This bill actually seems to me to want to make it harder and more difficult for an individual, or a couple of individuals running a small business that provides sexual favours to do what they want to do and actually easier for brothels to be established and enshrined. I think that is a flaw in the bill, so I would want some explanation of that.

I think there are some other aspects to the bill that I can see have good intentions, but which I think are very unrealistic, like section 28, which talks about no-one being able to ask for sexual favours without the use of a prophylactic. It is very hard to police and very impractical. I think a lot of aspects of that are simply unworkable, so in many ways this bill is flawed.

In summary, I can see the moral issues here, and I do not think any of us are in a position to moralise to anyone else about what should happen; I think that is a separate issue. I am looking for a bill that would not hurt those enterprising individuals who might want to provide these sorts of services where there are no victims, although I recognise that a lot of people argue that there are always victims. That is a debate we could have.

However, I am certainly very sceptical about brothels, so my instinct will probably ultimately be, if the bill remains in its current form, to oppose it. However, I am looking for amendments or some way where we can deal with the concerns I have raised and support the bill without throwing it out altogether, because I see the point.

The Hon. R.B. SUCH (Fisher) (11:00): I will be supporting this bill, subject to possible minor changes during the committee stage. I commend the member for Ashford for introducing the bill. There will always be opposition in the community to issues like this, and certainly to a bill being brought before the parliament, but we are all well aware that the member for Ashford actually cares about people, and this bill is a result of that attitude.

In my view, our society has never been able to deal adequately or appropriately with the whole question of human sexuality. My learned colleague the member for Mount Gambier said that it all goes back to the day of the apple, Adam and Eve. Perhaps we should ban the apple. In our society you only have to look at the absolute hypocrisy that occurs: on the one hand various elements within the total media promote sexual activity, often targeting young people, children, and then we see some of the consequences of inappropriate sexual behaviour, particularly directed against women and children.

I think that, as a society, we really have not come to terms with dealing with human sexuality in a mature and sensible way. My view is that what consenting adults do in private is their business, as long as there is no violence. By definition, if they are consenting one would assume there is no violence; if they are consenting, that is fine. I believe we have to protect children, and I think all members would agree with that.

I am particularly pleased to see in this bill a provision to allow people who are prostitutes to get out of the industry if they wish. That is a point often made by people in churches and other organisations, to help these people get out of that activity. Through the office of the member for Ashford I met someone who is a prostitute and who lives in my electorate. She has a child, but I will not be any more specific than that. She said to me that she could not get out of the industry because every time she went for a job her police record would come up. Basically, she is doomed to do that work. I think a very important provision of this bill is the spent conviction provision, because if people genuinely believe that prostitutes should be able to get out of the industry and have a new start in life, then that is a very fundamental starting point.

As I said, this bill is subject to controversy in the community, but I think it is better to regulate an activity and ensure that it protects the health of all members of the community who are involved in these activities, whether they are a sexual health worker or a client. I think that is very important. This bill can be subject to some refinement in the committee stage, but I believe it is a step forward. I encourage people who may be hostile to the concept of prostitution to acknowledge, as the member for Morphett said, that you are never going to eradicate prostitution; therefore, it is better to have it in a format that is subject to proper standards of behaviour, of health protection issues and so on.

Here in South Australia, the police have from time to time got on the prostitution bandwagon and, in my view, done silly things like going around and destroying condoms in brothels. To me, that is just silly, very unhelpful and putting the health of workers and the clients at risk. I think we need in this community a more mature and sensible approach to an issue which is not going to go away, and this bill reflects that. I am not trying to brag; I have never used a prostitute and I have no desire to. I find the whole concept alien and not something I would want to engage in.

I accept that there are some people, a whole range of people, who for various reasons may want to pay for sexual activity. There are some people with disabilities who may wish to do that, and there are people who want to for other reasons. Regarding the point raised by the member for Waite about what is prostitution, I will not be too specific, but I remember someone who lived near me making it quite clear to her husband that if he wanted sex there had to be some trade-off in relation to other things. I regard that as a form of prostitution, and that is within a marriage arrangement.

As I say, there is a lot of hypocrisy and double standards. I remember that at dinner parties one of the most hotly contested topics, particularly amongst the women, was, 'Would you prostitute yourself, if you had to, to save your child from starving?' If you want to have a good dinner party discussion, that is a question you can raise, and it brings out very strong views. The main issue here is: let us try to acknowledge that this is happening, that there is prostitution occurring, and let us get it into a systematic framework which is protective of the clients and those who are supplying the service. Let us ensure that we protect children and vulnerable young people so that they are not in any way compromised by this happening.

I look forward to the bill progressing to the committee stage, but at this point I do not see any reason why I should not support it. Some of my constituents have expressed opposition to it, but I suspect that no matter what format a bill came in they would have a moral objection to prostitution. I acknowledge and respect that, but I have to reflect the wider view of my community which, I can safely assert, believes that this issue should be resolved by parliament in a sensible and mature way.

Mr PEGLER (Mount Gambier) (11:08): I rise to inform the house that I will be supporting this bill. Yes, prostitution has been with us since the beginning of time, as have theft and murder. With theft and murder, there is always a victim; with prostitution, generally we see a situation where there are two parties and both finish that transaction in a profitable manner—the person providing the services gets a reward and the person who receives those services has their needs sated, so I do not see a problem at all.

Whilst we have prostitution as an illegal activity, parasites who prey on prostitutes can be very active, and we see victims because of basic sexual slavery, either through financial means or through drugs. I am sure that if we legalise prostitution it will take away a lot of that criminal element within that activity, and I am sure that as a society we will be better off if we can take the criminal element out of prostitution. Also, I certainly support the fact that if prostitution becomes legal convictions on people who have been booked previously will be spent, and they will be able to get on with their lives if they wish to get out of that field. I also might say that, if this bill is not successful, as sure as I am that the sun will come up tomorrow so will prostitution continue. So, let us legalise it and have some controls.

Debate adjourned on motion of Mrs Geraghty.

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