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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
2019-07-31 Daily Xml
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Statutes Amendment (Decriminalisation of Sex Work) Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (10:39): I move:

That this bill be now read a second time.

I rise to speak on the Statutes Amendment (Decriminalisation of Sex Work) Bill 2018 and it is with much pride that I do so. I had wondered, given the history of this matter, whether we would ever come to this day, but I am proud to say that we have. The outline of the proposed legislation, which has had scrutiny through its introduction and passage in the other place, has been a valuable addition.

May I outline first that the Statutes Amendment (Decriminalisation of Sex Work) Bill seeks to progress reform to remove offences relating to prostitution and the keeping of brothels from our criminal law, both the Criminal Law Consolidation Act and the Summary Offences Act. Furthermore, the bill ensures that current and former sex workers cannot be discriminated against under the Equal Opportunity Act and that they are covered through return to work provisions. Finally, the bill brings offences relating to prostitution, brothel keeping and street soliciting under the spent convictions regime, allowing prescribed sex work offences to be spent convictions. I will turn to each of these key components shortly.

The bill I speak of today is nearly identical to the bill proposed by the Hon. Michelle Lensink MLC, introduced into this parliament in 2015, and that of Steph Key, MP of the time, introduced in 2013. The 2015 bill was subsequently the subject of a select committee report published on 30 May 2017. Although it was passed without amendment by the Legislative Council on 5 July 2017, that bill did not ultimately pass the House of Assembly prior to the prorogation of parliament.

The bill before us today reflects the lengthy work of that committee and those members on it and takes into account amendments provided in the Legislative Council only weeks ago. I believe that these amendments work to strengthen the bill for our sex workers and brothel keepers but will also deal with some community concern around advertising and police powers.

We are joined on this day by an historic group of people in the chamber, many of whom have paved the way for the full decriminalisation model to be progressed in our parliament and the basis upon which we are able to debate this today. Specifically, I would like to thank attendees from Zonta, the YWCA, the Sex Industry Network, SHINE SA, the Working Women's Centre, Business and Professional Women, and the Health Services Union.

I would also like to thank the Hon. Tammy Franks MLC, the Hon. Michelle Lensink MLC, Duncan McFetridge, former member of this parliament, and my colleague the member for Reynell, who joins me today to second this bill. I also wish to thank the Hon. Steph Key and the Hon. Diana Laidlaw, who cannot join us today but who have been with us every step of the way in working towards a full decriminalisation model.

As a firm believer in this cause, I see decriminalisation as the only model that will comprehensively afford sex workers and women their fundamental rights and protections. By decriminalising sex work, we can provide the predominantly female and often highly vulnerable cohort the opportunity to be afforded basic health care, report instances of abuse to the police, seek work opportunities and contribute to society without the overarching stigma of their choice of work.

The sale of sex has existed since time immemorial and will continue to exist with or without the passage of this bill. However, the bill can improve the health and safety conditions of workers and reduce crime rates, which is the experience of other jurisdictions that have implemented decriminalisation. I refer particularly to New South Wales and New Zealand, which have decriminalised sex work in 1979 and 2003 respectively. This bill, at its heart, is about choice: the choice to work in whichever industry you like, the choice to disclose details of actions to the police without the fear of prosecution and the choice to cease working in the industry should you choose to do so.

I will now move to key components of this bill. Under the bill, at clauses 9 to 19 inclusive, the protections of part 5B of the Equal Opportunity Act 1984 are extended to a former or current sex worker, which is to be defined as a 'person who provides sexual services on a commercial basis', and their relatives or associates.

The amendments will have the effect of treating discrimination on the grounds of being or having been a sex worker in the same way that part 5B of the Equal Opportunity Act currently treats discrimination on the grounds of marital or domestic partnership status, the identity of a spouse or domestic partner, pregnancy, association with a child, caring responsibilities and religious appearance or dress. Generally speaking, it will be unlawful to discriminate against a former or current sex worker and their relatives or associates by treating them unfavourably in employment and education or in relation to land, goods, services and accommodation.

Under section 6 of the Equal Opportunity Act, a person—that is, the discriminator—treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances in which the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance. The equal opportunity commissioner has advised that the amendments simply add a new ground to the act. The commissioner has no concerns about this, noting that exemptions can be applied for.

Clause 20 of the bill allows for prescribed sex work offences to be spent convictions. Under this clause, convictions will be taken to be spent if they were an offence against keeping of a bawdy house, section 270(1)(b) of the Criminal Law Consolidation Act; permitting premises to be frequented by prostitutes, section 21 of the Summary Offences Act; soliciting in a public place, section 25 of the Summary Offences Act; procurement for prostitution, section 25A of the Summary Offences Act; living on the earnings of prostitution, section 26 of the Summary Offences Act; the keeping and management of a brothel, part 6 of the Summary Offences Act; or a common law offence related to prostitution.

The Spent Convictions Act 2009 sets out the law on when a conviction is not disclosed on your criminal record. A spent conviction is a conviction that, subject to exceptions, cannot be disclosed on a police check and is not required to be disclosed in response to questions about criminal history. Some exceptions to this rule include certain categories of employment, character tests and screening applications. Unless applying for particular types of work, a person who has spent convictions does not have to disclose them to prospective employers, and employers cannot refuse to employ someone on the basis of spent convictions.

Regardless, spent convictions are disclosable in relation to working or volunteering with children, people with disability, vulnerable people or people in the aged-care sector. This includes working with children checks. In these circumstances, the screening unit operated by the Department of Human Services undertakes an examination and consideration as to whether a current or former sex worker poses a risk to children and thus whether a working with children check should be granted. This is done on a case-by-case basis. Additionally, people with sex work-related spent convictions are eligible to apply to a magistrate for an order that their spent conviction is not disclosable, even in relation to these exceptional types of work.

Clause 23 of the bill inserts police powers to enter and search premises used for commercial sex services if there is reasonable cause to suspect an offence has recently been, or is about to be, committed or to secure evidence of an offence. Under section 32 of the Summary Offences Act, currently police have the power to enter and search premises that are reasonably suspected to be brothels. Retaining a right of entry in certain circumstances is important when decriminalising sex work; however, it should not overreach the decision of parliament to decriminalise brothels and sex work.

As such, this clause ensures that there is adequate and appropriate police power to enter premises used for commercial sex services where there is reasonable cause to suspect that an offence has been recently committed or is about to be committed. This clause ensures a balance is met between entering premises in the investigation of a crime and simply entering premises with no reasonable cause. There must be a reasonable cause to suspect an offence is occurring.

The Commissioner of Police has noted their opposition to a bill that gives police no power to enter premises where crimes such as child exploitation, child trafficking or otherwise are occurring. South Australia Police are provided effective measures to protect sex workers from illegal exploitation, to prevent the involvement of minors and to prevent organised crime entering the industry, without a broad right of entry power affecting potentially much more of our community.

Clause 24 of the bill repeals offences relating to soliciting in a public place for the purposes of prostitution under section 25 of the Summary Offences Act, procuring a person for prostitution under section 25A, and living on the earnings of prostitution of another person under section 26. The retention of these offences in their current form displaces the criminalisation model and erodes the purpose of this reform.

Despite this, I have seen a strong interest from both sides of the parliament to see an amendment limiting where soliciting can occur. On the face of it, suggestions like the creation of declared precincts are utterly inappropriate as a solution to the supposed perils of soliciting, as I imagine we would simply see precincts encompass entire suburbs.

Looking at the New South Wales experience, the New South Wales Summary Offences Act provides that a person on a road shall not, near or within the view of a dwelling, school, church or hospital, solicit another person for the purpose of prostitution. This model covers both soliciting clients by prostitutes and soliciting prostitutes by clients. I consider that a model akin to this may be a worthy option to ensure broader community concerns are addressed and will be considering amendments to the same.

Finally, I turn to regulation and licensing. I do not believe that licensing structures have a place in any debate around the decriminalisation of sex work. This view is shared by current licensed jurisdictions like New Zealand, New South Wales and Queensland, which, I have been advised, are progressing towards full decriminalisation. South Australia has the opportunity to learn from the mistakes of other jurisdictions and progress with a fully decriminalised model, yet one which enshrines advertising restrictions, protections for vulnerable persons, exit assistance and police powers.

I am acutely aware that other models proposed by decriminalisation opponents are simply a mechanism to detract from true reform. Quite simply, sex workers oppose licensing models on the grounds that it compromises their safety for similar reasons to the existing laws and shows ignorance as to what the decriminalisation of sex work means.

The bill has been sent to the Law Society of South Australia for its comment and I look forward to sharing that response with this place and working with the society on any amendments that would add to the decriminalisation of sex work in South Australia. On that note, I encourage all members on both sides of politics to take an opportunity to meet with the Sex Industry Network and other advocates to learn about what decriminalisation truly means to someone on the front line.

I urge members to hear about the way sex workers interact with members of our disabled community who might not otherwise have opportunities, hear about the stigma and derogatory behaviour that occurs on the streets and listen to the educated, bright and conscientious women leading this charge for reform. There have been significant miscommunications and mistruths about what this bill will and will not allow.

In the coming weeks, I will be holding a comprehensive briefing with my colleague the member for Reynell, which I hope all members will attend. This is not a political issue. This is a basic question of fundamental rights and the rights for all to feel safe in the workplace. We need an open dialogue on this reform and I welcome all opinion and comment from my colleagues in this place and stakeholders in the wider community, but we must remain respectful during debate and outside commentary.

I end with this: our parliament is left with two options. We either persevere with the status quo, effectively ignoring sex workers as the victims of crime and perpetuation of the stigma around this industry, or we progress with decriminalisation and see a stronger protection for workers and women. I implore all my colleagues on both sides of the house to consider this carefully and support the decriminalisation of sex work.

Ms HILDYARD (Reynell) (10:54): I rise to second and speak in support of the Statutes Amendment (Decriminalisation of Sex Work) Bill. In doing so, I acknowledge the Attorney-General and thank her for her co-sponsorship of the bill and for her determination to work together to progress reform. I acknowledge the Hon. Tammy Franks and say thank you to her for bringing the bill to the other place and for her deep commitment to achieve decriminalisation.

I heartily thank my friend the Hon. Irene Pnevmatikos for her wise contribution and unfailing support, support steeped in an understanding born from her lifetime of work to support and empower workers, of the deep link between decriminalisation and the positive health and wellbeing of sex workers. I also thank the Hon. Michelle Lensink for her leadership in progressing this decriminalisation of sex work, and I thank the many colleagues here and in the other place and those brave women who have prosecuted this argument before, Steph Key in particular, for their voice, for their tenacity and indeed for their endurance.

I thank the incredible advocates and women's organisations here with us today, advocates and organisations that make all of us in this place feel stronger in our voices and in our actions and feel supported, which is a very special thing. To the YWCA, to the Working Women's Centre, Zonta, BPW, SHINE, Soroptimist International, the National Council of Women Australia, the South Australian Rainbow Advocacy Alliance, the women lawyers' group and the HSU, thank you for your deep conviction in advancing the interests of all women here in this state and beyond.

To SIN, thank you for being with us today and for your advocacy, advocacy that I hope more workers will feel even more confident to seek out and openly connect with following a successful passage of this bill. This bill being at this point is testament to your exemplary work. Most importantly, I acknowledge the workers who are here with us today, workers who have shown enduring leadership, courage and tireless, relentless advocacy for what they know is right.

I say to each of you that I know this fight has been a long one, filled with eternal hope and, to date, lined with disappointment as we have edged closer and closer towards decriminalisation. I say to you that I stand with you, I am here for you and, like all those I have just mentioned and members on both sides of this house, including the member for Bragg and the member for Cheltenham, who has been a strong advocate for change, I will keep fighting alongside you until this is won.

History tells us that change and progress always happen when people relentlessly raise their voices together for as long as it takes to achieve that progress. Just like Catherine Helen Spence and her remarkable cohort of activist women, whose work 125 years ago meant that women here in South Australia could finally vote, we will not stop. Friends, we will get there, and it is indeed high time that we do.

I had the opportunity to see some of the contributions in the upper house, to listen and to read the words of members. I was intrigued about the thread amongst those words about values, morality and what drives people to take a particular position. It was clear to me, as it so often is, that most people come to this place with a conviction born from experience, born from who and what has shaped them and born from their beliefs.

I am confident that most who have contributed to date did so because they felt strongly about what the right or moral thing to do was for their own conscience and also for the rights and wellbeing of those whom this legislation will affect. It is the case, however, that we can reach different conclusions about how this law will or will not impact those rights and those people's wellbeing.

I have talked with sex workers in this state for the past couple of decades, and I have heard them. I bring that deep listening to this place today, to this issue that we contemplate, and I also bring my own set of experiences that have shaped me, my own values, my own conscience and my moral compass. I put myself forward for election to this place because I passionately believe in fairness and equality, because I am driven to ensure that people are included and that they are able to live their lives with dignity and respect, free from stigma. I put myself forward because I care about every member of our local and broader community and believe that above all else they should be enabled to access their human rights, those core rights that mean they are treated with humanity.

To me, that humane treatment of people, that equality of access to fundamental human rights, is all about morality. It is from my own early experiences, that I developed my burning and relentless passion for fairness. It is from those experiences, and with the guidance of my very strong and often very loud mum, that I learned to speak up for myself when things were not fair and then to speak up for others. But it is through organising workers and other community members to have a strong voice on the issues that they care about, that drive them and that impact their lives that I learnt that the most important thing we do as leaders is not just to find our own voice on our own rights but always, always to empower the voice of others on their rights.

I am driven to do this with and for all, and for a range of reasons I have particularly worked with women to engender their leadership, their voice, their power, because women are still not equal in terms of how they are empowered to participate in community life, in work, in politics or in our economy. It remains that women are more likely to experience violence in their lifetime, and this issue we contemplate today is absolutely about power. It is about empowering women and other people, of course, to advance their rights, to ensure they can access protection, support, advocacy and health services.

I know there has been much dialogue about how we empower women when we are talking about them engaging in transactions to provide sexual services. What we do know is that all people who are engaged in sex work in a criminalised environment are marginalised, deal with stigma and experience discrimination. This is so because of the fact that they do their work in a criminalised environment, and the manifestation of that discrimination is an inability to access workplace protections, outreach support, advocacy and health services, and it also has an impact on how they are able to negotiate with and report to police.

What has also shaped me from an early age is my faith. It continues to do so. My Christian Catholic faith is fundamentally entwined with my unshakeable and deeply held belief that it is incumbent on each of us to love people, to offer kindness to people, to include, to accept people and to do what we can to ensure their place in our community and to ensure that their voice is heard. It is not my place, nor the place of anyone else here, to carve roles for ourselves as judges and, by virtue of that tenet, as saviours, but it is absolutely our place to make sure that with love, kindness and determination we do what we can to ensure that all people have access to their fundamental human rights. That is the right and moral thing to do.

It is that desire to include people to make sure that their voice is empowered to access their rights, the dignity and the respect they need, that has meant that I have supported this decriminalisation cause for more than two decades. It is also, of course, my conversations with sex workers over those many years about what work is like without basic industrial rights, without access to health and safety protections, to safe reporting mechanisms, to safe access to advocacy groups and to health care without stigma that bring me to my very firm view that I share today—that every worker, every person, should be able to access the rights that we have created, the rights enshrined in laws that we progress over time as our community demands.

We as leaders must be here for all South Australians, and from those conversations, from everything that I have read and that I have heard criminalising this work through our existing law and making many workers—the majority of whom are women—unable to access the rights in other legislation that the majority of our community do access, mean that we are not here for these workers. In fact, through this parliament's multiple failures to pass this legislation, we have failed them and we have failed our community.

We know that our current law lets people down; we need to change it. Should we decriminalise sex work, workers will have the opportunity to access the rights and protections that are afforded through work health and safety legislation, through the Fair Work Act and potentially through other industrial instruments—basic safety nets that all workers should have the right to access. I know that some questions have been raised in the other place by the Hon. Rob Lucas about how this will work, and I answer some of those now.

Like other workers, to access, for instance, the provisions of the Return to Work Act, a worker will need to show that they are indeed a worker as opposed to an independent contractor, and they will need to demonstrate that their particular work injury has arisen as a consequence of employment. That is clearly stipulated in section 7 of the act, which sets out that compensability for a work injury requires a connection with employment and that the injury arose as a consequence of that employment. Section 9 identifies the evidentiary provisions required to establish compensability. There is, of course, longstanding case law on this issue.

The Hon. D.C. VAN HOLST PELLEKAAN: Mr Speaker, can I suggest that you allow the member some additional time to finish her speech.

The SPEAKER: Is the member nearly done?

Ms HILDYARD: Just about three minutes, I think.

Leave granted.

The SPEAKER: Member for Reynell, three minutes.

Ms HILDYARD: Additionally, the act in section 4 sets out what constitutes a contract of service. It can include a verbal or written contract, an award or understanding. In relation to any claim for compensation, evidence is required to establish the employment relationship. Again, there is much case law in relation to how that employment relationship is established. In terms of the Hon. Rob Lucas's questions about establishing average weekly earnings in relation to a claim, sections 5 and 9 of the regulations and section 5 of the act identify the key principles and concepts that must be considered in establishing the worker's average weekly earnings.

Having for many years represented workers on issues around independent contracting versus employment, I could not say that the system is perfect nor that it provides the best possible outcomes every single time. That is not a reason to exclude one particular group of workers from accessing rights enshrined in legislation that all other workers are afforded. It is also an issue that we can assess post the passing of this bill. Wherever there are industries where there is a prevalence of workers being inappropriately deemed as independent contractors, resulting in a lack of access to industrial rights, it is important that we look at the industry to see how we can address that particular situation, how we can ensure the right environment is in place for them as workers.

The bill, as the Attorney-General has pointed out, does rightly provide protection through the Equal Opportunity Act, protection that means workers will have an avenue for redress should they experience discrimination as a result of being or having been a sex worker. It also deals with the spent conviction issues. There are many other issues which we can of course also assess and for which I know there is a commitment to exploring the best possible outcomes. I can indicate to this house that following the introduction today we will be conducting a comprehensive briefing for all members. There is a commitment from both the Attorney and myself to working through the issues and questions that people rightly have, to providing facts, to dispelling myths and to making sure you have access to the people you want to talk with as you contemplate your position.

In closing, I deeply believe it is time for us to move forward. It is no longer okay for a group of South Australian workers to be stigmatised, to be marginalised through fundamental unequal access to rights and protections. It is time for sex workers to be safely heard, to safely access health care, to seek out advocates and to report incidents without fear. It is time for sex workers to have avenues to safely pursue those who exploit them or perpetrate violence against them. It is time for us as a parliament to be honest about the fact that sex work is work and, just as we would in relation to any other job, it is time for us to provide access to the protections, the rights, the dignity and the respect that workers in the industry deserve.

When this industry is decriminalised, we will better understand it. We will be able to work with sex workers to make sure that any limitations in rights and protections are addressed, to make sure that their voices are heard. Is that not one of the reasons we are here: to ensure people's voices are heard, to represent, to speak up for, and to progress rights for those most marginalised? I commend this bill to the house.

Debate adjourned on motion of Mr Pederick.

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