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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-06-13 Daily Xml
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STATUTES AMENDMENT (SEX WORK REFORM) BILL

Introduction and First Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (16:00): 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. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (16:01): I move:

That this bill be now read a second time.

I am delighted to stand here today to support the Hon. Stephanie Key in her aim to decriminalise the sex work industry in South Australia. The bill I am introducing today is identical to that of the bill already introduced by the honourable member in another place. This bill is designed to amend a number of pieces of legislation in order to give effect to the Statutes Amendment (Sex Work Reform) Bill 2012.

I would like to commend the Hon. Stephanie Key for the extensive consultation and the incredibly hard and diligent work that she has undertaken to enable us to reach this point. She has spent, in fact, many years pursuing this. I know that she has engaged with and spoken to a very large range of people and organisations over, as I said, a very long period of time, so her efforts are to be absolutely commended.

As members may be aware, there are a number of different models that operate in the sex industry, both globally and locally, particularly here in Australia. Depending on the country or jurisdiction, sex work can be criminalised, legalised or decriminalised. Advice from workers and sex worker organisations, relevant organisations and research undertaken for and by the Hon. Stephanie Key has led to the decision to support the decriminalisation model for South Australia.

The current South Australian laws are simply unworkable. As it stands, all prostitution activity is illegal. This has obviously, however, not been a deterrent. South Australia's sex work industry is not about to go away and, at present, we are simply wasting policing resources on what is really a transaction between consenting adults. I believe it is time that we changed this approach.

I have long been committed to seeing a change in the way sex work is viewed. I am obviously very concerned that workers in the industry be treated fairly and are respected as workers like any worker. Like the Hon. Stephanie Key, I have been impressed by both the New South Wales and the New Zealand models.

In the case of New South Wales, since 1995, sex service premises have been able to operate like any other business, 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.

The New Zealand model is a decriminalised one, and I am advised that recent data suggests that the decriminalisation of New Zealand's sex industry has resulted in safer and healthier sex workers. Evidence shows that there is compelling evidence that decriminalisation has achieved the aim of addressing sex workers' human rights and that it has had a positive effect on their health and safety.

The bill before you can, in many ways, be seen as a combination of these two approaches. At the forefront of this push for change are key issues around workers and workers' rights. I know that, like myself, the Hon. Stephanie Key is also very keen to see sex workers protected and with the same rights and responsibilities as other workers. We have been advised that the usual industrial remedies are not necessarily going to be easily translatable to the sex work industry, at least not for a while. There is scope, however, to introduce work, health and safety provisions into the industry, and should this bill be successful this is something that the honourable member will be looking at further.

Other protections, however, are provided for; for example, safe sex provisions are included as an occupational health and safety issue. Although the Scarlet Alliance notes that Australian sex workers have the lowest rate of HIV/AIDS in the world, this is an important way of giving sex workers a legal imperative to ensure that their clients are not able to request unsafe practices. There are protections included for the public as well. I understand that for some the location of sex work businesses is a real issue. For that reason, the bill does not allow the establishment of such businesses within close proximity of schools or places of worship.

In considering industrial issues in the development of this bill, the Hon. Steph Key has had advice from many different sources, particularly people who work in the workers rehabilitation and compensation area. This bill extends the protections under the Workers Rehabilitation and Compensation Act 1986 to sex workers. It is imperative that sex workers are given the same rights and protections as other workers. This is a basic right, and one which is long overdue for this particular industry.

With those words, I commend the bill to the council and I hope that members will choose to support the decriminalisation model. I seek leave to have the explanation of 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 Hon. D.W. Ridgway.

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