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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Bills

Statutes Amendment (Decriminalisation of Sex Work) Bill

Introduction and First Reading

The Hon. S.W. KEY (Ashford) (10:32): 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 Workers Rehabilitation and Compensation Act 1986. Read a first time.

Second Reading

The Hon. S.W. KEY (Ashford) (10:33): I move:

That this bill be now read a second time.

This bill aims to change the sex industry in South Australia so that sex workers have the same rights and responsibilities as other workers and to decriminalise sex work. To achieve this end, my bill gets rid of the term 'common prostitute' in the Criminal Law Consolidation Act 1935; deletes common law offences relating to prostitution; inserts the definition of 'sex work' into the Equal Opportunity Act 1984 and clauses that make it unlawful to discriminate against a person because they are or were a sex worker; amends the Spent Convictions Act 2009, aiming to wipe a person's criminal record clean of sex work offences; deletes the term 'prostitute' from the Summary Offences Act 1953; repeals offences relating to brothels; and amends the Workers Rehabilitation and Compensation Act 1986 to recognise commercial sexual services and employee/employer relationships like other industries. The explanation of clauses will spell out these provisions in more detail.

As a campaigner now for many decades to improve equal opportunity and anti-discrimination legislation, I believe that decriminalisation must be combined with anti-discrimination and human rights protection to be fully effective. In the words of Catherine Healy from the New Zealand Prostitutes Collective and Scarlet Alliance:

It is widely recognised that discrimination is the optimal model for sex work legislation. A decriminalised framework removes police as regulators of the sex industry, repeals criminal laws specific to the sex industry, regulates the sex industry businesses through standard business planning and industrial codes and does not single out sex workers for specific legislation.

She went on to say:

Favourable experience of decriminalisation in New Zealand and New South Wales demonstrates that decriminalisation supports sex workers' self-determination, maximises compliance, increases transparency, reduces police corruption and minimises discrimination.

Most of the crimes are covered by the Spent Convictions Act, which means that, if one does commit another crime for a period of 10 years after their original conviction, it will be considered spent, or no longer applicable, or wiped from one's record. As there has been some doubt as to whether sex work was covered by this legislation, I sought clarification from the Attorney-General and made submissions, along with many others, to him, stating that it needed to be clear that sex work convictions could be spent.

Changes made to this act have been helpful to many people with old and minor convictions. At least one former sex worker told me she had gone before the court to have her considerable number of sex work convictions from the 1990s wiped clean. She hopes that now her qualifications in the aged care and disability area will be recognised and she can now get permanent work in those areas.

Unfortunately, I have had complaints from former sex workers who still have sex work charges on their record, despite the changes to this act. Due to the high demand from many areas now for police checks and requests for criminal records, it seems that the administration of this area has not caught up. As members would be aware, this issue of spent convictions was one that the late Dr Bob Such (the member for Fisher) campaigned for.

Sex workers and former sex workers have talked to me about problems they have had in getting permanent work, being a volunteer and helping out at their children's or grandchildren's schools, kindergartens or sporting groups due to their criminal record. Having the slate wiped clean with regard to sex work offences proved to be an important action in the New Zealand legislation. My bill seeks to do that in South Australia.

Sex workers with a record have also cited cases to me where they have had problems with different insurance companies in pursuing a claim or in different social situations disclosing their work or former work and having to cop the discrimination at a whole lot of levels. I have also heard from former sex workers who have been blackmailed or threatened with blackmail. The Law Society of South Australia in its response to the draft bill said:

Prior convictions of sex work offences should be spent on the commencement of the act. Having these convictions spent could make it easier for workers with convictions who have remained in the industry because of limited options due to their criminal record to consider leaving the industry.

I am often asked why I have campaigned for such a long time with regard to reform in South Australia's sex industry. My initial response is that I believe it is a question of equity, but I will just give a little bit of background to put this into context. I left home and was in full-time employment by the age of 16 years. I lived in Halifax Street in the city, up the east end, and got to know some of the local sex workers, as well as the other colourful people who lived near St John's church in the lane off Halifax Street.

Being on a junior clerk's wage at Harris Scarfe Industrial and working at Woodville Bowl at night meant I could just pay my way, so when the night receptionist job came up at the health studio around the corner, I applied. I was honest about my age; I told them I was 16 years old, but argued my qualifications meant that I would be the perfect receptionist. It was only then that I realised this was not actually a health studio and also the reason for me being 18 years old to do this job became apparent all of a sudden in the interview. I did not get the job or accept the job, but not for moral or ethical reasons. I knew that I did not actually want to be a participant in this industry. I did, however, get a job in a nearby restaurant as a kitchen hand soon after, so that was another good night job. It meant I had three jobs to fund my independent lifestyle.

While doing adult matric one of my jobs was as a waitress—I think the correct term now is table attendant—at Pagana's restaurant in Hindley Street next to the Third World Bookshop. Most of you are too young to remember this, but there are probably a couple who may.

Mr Pederick: I don't.

The Hon. S.W. KEY: The member for Hammond is on record as not knowing these things. Pagana's coffee and gelati area was at the front of the restaurant and it took a while for me to work out that this was the base or meeting point for a number of women and transexual sex workers, some of whom had managers. The place was also frequented by a number of police and plain clothes detectives. Pagana's restaurant was a very busy place. A couple of fellow students, both in matric and then at uni, worked as sex workers so that they could study and also support their family. I guess what I am saying is that I knew and I know a number of people from that industry, and it really seemed to me that they should as workers be treated as equally as anybody else in industry.

My views with regard to the sex work industry were really influenced and consolidated politically having read the report and findings of the Commonwealth Royal Commission into Human Relationships in 1997. By that time I was still working two to three jobs, but I was a student in politics, sociology and women's studies at Flinders University. My work as the director of the Working Women's Centre and later as a trade union advocate meant that I kept in contact with sex workers, their organisations and the many campaigns that they have had.

The royal commission, of course, saw the criminalisation of sex work as an inappropriate use of criminal law and resources. Those findings that we are talking about were coming out in 1977, but since that time there have been many reports and reviews with regard to the sex industry. Various bodies of the United Nations have called for decriminalisation including the United Nations Committee on the Elimination of Discrimination Against Women, the UN Special Rapporteur on the right to health, the UN Development Program and UNAIDS.

Amnesty International has been considering the issue of sex work and the local South Australian group had a seminar on this issue where they were looking at models for improvement. The Lancet, the very famous medical journal, has published a seven-part series of research on HIV and sex workers. The report argues that decriminalising sex work will have the single greatest effect on the course of the HIV epidemic across the world, and could avert at least a third of HIV infections amongst sex workers and their clients in the next decade through its immediate and sustained effort on violence, policing and safer work environments. I am also advised that the World Health Organisation and the United Nations Secretary, Ban Ki-moon, also recommended the decriminalisation of sex work.

The working group to develop this bill has included sex workers and their organisations, particularly Scarlet Alliance, Australian Sex Workers Association; Sex Industry Network; Sex Worker Action Group: Gaining Empowerment, Rights and Recognition (SWAGGERR); and organisations supporting sex industry reform including the Australian Services Union, Working Women's Centre, Zonta District 23, SA Unions, Business and Professional Women (SA), the Women's Standing Committee (SA Unions), some chapters of Soroptimist International, Adelaide White Ribbon workers, and MLCs and MPs in state parliament.

Comments and qualified support for the bill has come from the Women Lawyers Association and the Law Society of South Australia. Academics from Flinders, University of South Australia and Adelaide universities and individual sex workers and sex-work business owners. The Local Government Association also responded and has raised issues surrounding some small home-based sex businesses and the location of sex work.

Media people have also been very helpful. The late Greg Kelton, Amanda Blair, Peter Gôers, Petra Starke, Lauren Novak, Laine Anderson, Simon Royal, Michael Maguire and Ian Henschke have assisted in making the facts about the sex industry known and have helped expose some of the myths.

I particularly acknowledge the assistance I have had from the member for Morphett, Dr Duncan McFetridge, the minister, Gail Gago, the shadow minister, Hon. Michelle Lensink, the Hon. Kelly Vincent, the Hon. Gerry Kandelaars, the Hon. John Gazzola, the member for Colton, the Hon. Tammy Franks, the member for Florey, the Hon. Mark Parnell and the late member for Fisher, Dr Bob Such. All have been working with me on this issue since the last parliament. I also acknowledge that the new members of Giles and Reynell have also followed in their predecessors' stead of assisting with this legislation.

The Ashford EO staff and volunteers have been particularly supportive and have gone through a number of years, with me, of trying to get this legislation through parliament. The staff of other members of the Legislative Council have been particularly supportive, and I thank them for their great role in this campaign. 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—Insertion of section 68AA

This clause inserts new section 68AA into the principal Act, creating an offence to provide commercial sexual services to children, with a maximum penalty of 10 years imprisonment.

5—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.

6—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 Equal Opportunity Act 1984

7—Amendment of section 5—Interpretation

This clause inserts a definition of 'sex worker' into section 5 of the principal Act.

8—Amendment of section 85T—Criteria for establishing discrimination on other grounds

9—Amendment of section 85U—Application of Division

10—Amendment of section 85ZA—Application of Division

11—Amendment of section 85ZB—Discrimination by associations

12—Amendment of section 85ZD—Application of Division

13—Amendment of section 85ZF—Discrimination by person disposing of interest in land

14—Amendment of section 85ZG—Discrimination in provision of goods and services

15—Amendment of section 85ZH—Discrimination in relation to accommodation

16—Amendment of section 85ZI—Charities

17—Amendment of section 85ZK—Measures intended to achieve equality

These clauses collectively amend the Equal Opportunity Act to make it unlawful to discriminate against a person because they are, or were, a sex worker.

Part 4—Amendment of Spent Convictions Act 2009

18—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 5—Amendment of Summary Offences Act 1953

19—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.

20—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.

21—Repeal of sections 25, 25A and 26

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

Section 25 relating to the soliciting a person for the purposes of prostitution, and is based on the illegality of sex work, which will no longer be the case on the commencement of the Bill.

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 these sections 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.

22—Repeal of Part 6

This clause repeals Part 6 of the principal Act, which contained offences relating to brothels.

Part 6—Amendment of Workers Rehabilitation and Compensation Act 1986

23—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.

24—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 Ms Chapman.

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