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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Parliamentary Committees

Select Committee on Statutes Amendment (Decriminalisation of Sex Work) Bill

The Hon. J.M.A. LENSINK (16:12): I move:

That the report of the select committee be noted.

The select committee report is into the Statutes Amendment (Decriminalisation of Sex Work) Bill 2015 which I introduced in this place on 1 July 2015. It is the identical bill to the bill in the House of Assembly tabled by the Hon. Steph Key. The bill was referred to a select committee after the amendment of the Hon. Stephen Wade on 9 September 2015. The purpose of referring the bill to a select committee was to ensure that there would not be any unintended consequences. As private members, sometimes it is good for us to cover all matters in relation to our bills and also to see if there are any amendments which might improve it. For a complete picture on the background to this legislation, readers might like to read Hansard from those dates and the second reading contributions.

The threshold question on the matter generally of the reform of our sex work legislation is, firstly, do our current laws work? I think there is a broad consensus among a number of stakeholders that they do not, and then I think in a mature way we need to try to find alternatives. As legislators, I certainly believe it is our duty to not be afraid of covering some areas which some people might regard as controversial. Pleasingly, in this day and age, the community response has been very mature. I certainly have not been overwhelmed with representations as I have on some similar conscience matters.

For some members and for some people in the community, there are also threshold questions for them to answer about whether they do or do not agree with people purchasing or selling sex as a commodity. For me, that is a neutral matter. It takes place and therefore, as legislators, we are duty-bound to try to make sure that the best interests of all in the community are served. A further threshold question is: will decriminalisation increase the prevalence of sex work? That is largely based on whether people agree with it or not. Those are some questions that I am sure are employed in many members' minds as they make their decision about whether to vote on this legislation, or any other for that matter.

We formed a committee of seven members. There were two from the government, Hon. Tung Ngo and Hon. John Gazzola; two from Her Majesty's loyal opposition, Hon. Andrew McLachlan the brave and me; three crossbench MLCs, Hon. Tammy Franks from the Greens, Hon. John Darley from then NXT and now SA-Best, and Hon. Robert Brokenshire from Family First, which is now Australian Conservatives.

I would like to commend the committee members and particularly our staff, Leslie Guy, who is our secretary, and Carmel Young, our researcher. Particularly given the sensitive nature of this topic and the diversity of views—there was a conscience vote for most members, I think—the committee worked very effectively and was very respectful towards the topic and to witnesses. So, I would like to thank my colleagues for their commitment to this process and Leslie and Carmel for their professionalism and hard work. I also acknowledge Tammy Franks for taking on the chair's role while I was on maternity leave.

In terms of the report that was tabled yesterday, the committee received 87 written submissions and took oral evidence in about 15 hearings, which includes multiple witnesses and multiple sessions. I have spoken before about the different legislative approaches and models. These are well documented and are discussed at section 4 of the report, which is on pages 8 and 9.

Briefly, a criminalised model codifies that certain sex work activities are offences which attract a criminal penalty, which is our current situation. A legalised or regulated model takes the view that certain activities are legal if they take place according to certain conditions, such as those that operate in some other Australian jurisdictions, which provide that brothels are legal if they are registered. A decriminalised model does not place specific activities in criminal law; instead, applying other laws that affect work practices or health.

Australian states and territories fall into different regulatory models, which are covered under section 5 of the report on pages 11 to 14. This section also discusses parliamentary and other reviews. A table at the end of the report outlines state and territory approaches to regulation.

Section 6 of the report discusses the background to the bill, which includes a consensus view, including several comments from several senior members of SAPOL that South Australia's current laws are difficult to police and that the draft legislation has been driven by concerns for people who work in the industry, who are made more vulnerable by operating under a criminalised model. A table on page 16 shows the charges that have been laid for each type of offence each year from 2006 to 2016 inclusive.

South Australian sex work laws follow a criminalised model. The bill follows a decriminalised model. I would just like to add that, in terms of the amendments to the legislation, so that any readers are abundantly clear, we are proposing to retain the offences that relate to sexual servitude, deceptive recruiting, use of children in commercial sexual services and also introduce a new offence, which is to provide services to a child, which will attract a maximum penalty of 10 years.

The report summarises the matters raised in evidence in section 17, which starts on page 7. As I have said—and I repeat myself on this issue, because it is a very important one for us—the key issue for many members of the committee is the safety of people working in the industry, and it is unequivocally the view of people who work in the industry, and a number of other advocates, that sex work should be decriminalised. As the committee report puts it, the current criminalised legislative regime creates covert working conditions with high risks to individuals' health and safety. The issues raised in evidence were, first, the same rights and protections as other workers, that what sex workers do is work, and therefore they should have the same rights and protections as others.

Secondly, access to finance, because what sex workers do is not able to be legitimately recognised, and makes dealing with institutions such as banks, Centrelink or other institutions difficult. Third is removing the stigma associated with illegal work—which, again, relates to having the same rights and protections as others enjoy. This section also raises the stereotype or urban myth of the victim as sex worker, typically portrayed as someone who was abused as a child, is drug dependent or mentally unwell, etc. That stereotype is a barrier to gaining help if people are actually a victim of crime, and can prevent them from being taken seriously by a whole range of others.

The fourth point is that it would enable people to facilitate exiting this field of work, particularly given that it is currently illegal, which makes it difficult to gain employment in other industries, specifically those where a police clearance is required, such as working with children, the elderly or people with disabilities. Five is impacts on policing. Whilst SAPOL agree that South Australia's current laws are challenging to police, they do not take a view on the bill as that is a matter for the parliament, but they do have concerns about relinquishing specific police powers.

SAPOL argued, in their presentations, that retaining the right of entry to brothels and applying some probity, such as that contained in the Tattooing Industry Control Act 2015, would facilitate identifying potential exploitative elements such as outlaw motorcycle gangs. The report quotes one of the SAPOL witnesses as stating, 'a completely unregulated environment will only lead us to problems in the future.' This particular argument is challenged by the Law Society of South Australia, which has pointed out that there is a significant number of laws which, just on the matter of search powers, are already in existence.

Those are listed in the report, but for the benefit of readers of this speech I will repeat them: the Offences Act, the Controlled Substances Act, the Criminal Assets Confiscation Act, the Crimes Act, the Criminal Investigation (Extraterritorial Offences) Act, the Firearms Act, the Migration Act, the Serious and Organised Crime (Control) Act, the Summary Offences Act (SA), (the Indecent Behaviour and Gross Indecency section). On that basis I take issue with the characterisation that the bill would mean sex work is unregulated. There is a whole range of other areas where the Law Society has provided details where current laws apply.

The sixth area is organised crime, sexual servitude and trafficking. This is an area that is often used as a reason to oppose law reform in this area, that if what is currently an illegal practice becomes legal people are more likely to be able to be coerced into working in it, and once it is legal authorities are unlikely to try to detect people being coerced into working in it. I just repeat that the bill is not removing any existing offences relating to sexual servitude, recruiting or use of children, which are clauses 66, 67 and 68 of the Criminal Law Consolidation Act.

We heard quite conflicting evidence about this from various stakeholders. Industry advocates state that there is little evidence of criminal element involvement and that, in any case, decriminalising it strengthens the ability of those working in it to report intimidation, extortion and so forth to the police. SAPOL stated they believe that exploitation takes place but do not offer any evidence of this. They also made assumptions that foreign national fly-in fly-out workers travelled to avoid detection—which, coincidentally, was a matter that was the subject of an article in the Police Journal of April 2017.

It is an article which details the case of Ting Fang, who was the sex worker who was murdered on New Year's Eve 2014 at the Hotel Grand Chancellor on Hindley Street. As it turns out, for those who have not read this article, Ting Fang was murdered for her cash by a client. Detectives have investigated the background of the details of her situation, including why she was in Adelaide. I quote from the article, page 12:

Fang had arrived in Adelaide two days earlier and checked in to the Hotel Grand Chancellor in Hindley St. She had booked her flight and the escort agency she was working for in Adelaide had arranged her pick-up from the airport and accommodation.

Her plan was to work in Adelaide for a few days and, then, return to Sydney with a percentage of her earnings after paying the agency its fee. She had done exactly that several times before - without any problems.

Then there is a quote from major crime Detective Brevet Sergeant Damian Britton, who says:

'The girls in this industry rarely work in their own cities for fear of running into a customer,' Britton explains. 'So the girls fly around the country; and Fang came to Adelaide up to eight times in the 18 months or so that she'd worked for the Adelaide business.

The Chinese clients were quite well-to-do people. (They had) the financial means to pay for that kind of service.

'Quite often they were married or had girlfriends, had their own businesses themselves, and this was just one of their vices.'

He says further, in another part of the article:

Some overseas students hear about it—

that is, sex work—

as a way to make some reasonable money and live a lifestyle they probably wouldn't otherwise be able to afford.

Fang started out working as an escort in Sydney before she likely discovered the option of operating interstate. The advantage of that practice was that sex workers were never likely to run into clients in their home towns.

That is another point of view that is put on these issues. Trafficking itself falls into the jurisdiction of the Australian government. Prior to the bill's referral to the committee, I had written to federal justice minister Michael Keenan to seek further information on the South Australian situation. His reply to me is in the content of the report, but I will read a few paragraphs because I think they are pretty important for this debate. His letter, dated 13 October 2015, states the following:

Due to the clandestine nature of the crime type, there is little reliable data about the nature and extent of human trafficking at a global, regional or domestic level. However, when compared to global trends, it is clear that instances of human trafficking remain relatively uncommon in Australia. Opportunities to traffic people into, or exploit people within, Australia are limited because of our strong migration controls, geographic isolation, and high degree of regulation, compliance and enforcement.

Since the Australian Government strategy to combat human trafficking and slavery commenced on 1 January 2004, as at 31 August 2015 279 suspected victims of human trafficking, slavery or slavery-like practices such as forced labour and forced marriage have been identified by the Australian Federal Police (AFP) and referred to the Australian Government Support for Trafficked People Program. Of the 279, 189 females and two males were referred for suspected exploitation in the sex industry. The majority of suspected victims were referred in New South Wales and Victoria, reflecting the population concentration and relative size of industry in these jurisdictions.

Information available to the Australian Government agencies responsible for combating human trafficking and slavery indicates that the incidence of human trafficking for sexual exploitation in South Australia remains low. From 1 July 2012 to 31 August 2015, the AFP received three referrals for suspected sexual exploitation matters in South Australia, one of which was accepted for further investigation. One matter was not accepted for investigation as no victim was identified. The other matter was not accepted for investigation as the AFP's evaluation revealed no evidence that an offence had occurred.

The seventh area of evidence and matters raised related to the level of criminal activity within the industry. The committee did not receive any evidence to confirm criminal activity, although I think it is fair to say that a lot of people have views about what they perceive to be the level of criminal activity.

Next, we have human rights. There were strong views for and against. Industry groups argue decriminalisation advances the human rights, while a number of Christian-based witnesses argue against that point of view. Also in favour of the view that decriminalisation advances human rights are Amnesty International and the women's organisations—so the oral representation was provided by YWC Adelaide, which also spoke on behalf of Zonta International and Soroptimists International. Also I have received representations from BPW that they also support decriminalisation, and the National Council of Women, providing another umbrella, has provided forums on several occasions at which all of those organisations have attended and represented those views.

On Health, we received evidence from Clinic 275 and the Communicable Diseases Control Branch of SA Health that communicable disease rates are often lower than that in the general population and that decriminalisation will generally be beneficial for health. There would be some who oppose that.

Local government was an interesting area. I think it is fair to say that the local government sector is either not interested in providing a cohesive response or is somewhat confused. We had sought, as we had sought from a number of stakeholders in all good faith, to get views from local government. We received three submissions, and they are summarised in the report. We had also quite specifically sought out the LGA which, after having said they were not going to be providing evidence, then realised that they had actually written to a committee member; so that letter was subsequently received. But it took some time for that to come to light, that they actually had made some attempt to represent their sector's views, albeit via another means.

I think it is fair to say, too, that a lot of those opposed to decriminalisation who are cited in section 7 were members of a group who call themselves the Nordic Coalition, many of whom are members of Christian faith-based organisations. A number of them advocate for the so-called Nordic model, which targets the criminalisation of the client or purchaser of the services.

One of the matters I had been quite hopeful of gaining a greater understanding of was that concerning the vulnerable people who might work in the industry and how best we can protect them. The message from individual workers and industry representatives themselves was very clear: the decriminalised model makes them more vulnerable.

For this reason we had sought SAPOL's views very early on. We did receive oral representations from them on 11 May, and we then asked them a range of questions on notice of a qualitative nature, because they were not able to provide them to us on the day that they appeared, which was a little bit frustrating.

We then had them return, on 26 October—that was the Licensing Enforcement Branch. These transcripts are available on the committee website. In my view I would characterise some of the evidence as a little bit anecdotal and non-specific. There seemed to be a general attitude that SAPOL like to take a benevolent attitude towards the industry, and this was described by the representative of the sex industry network along the lines of officers coming in, sitting down to have a cup of tea and saying, 'How's it all going?', just to see that everyone is safe.

Late in 2016, the committee was advised that there had been an increase in police activities and so we called in a number of witnesses to provide evidence to us about that. Other honourable members may wish to talk about that in more detail, because we thought it was pretty important for us to know what was going on.

On 21 February, the Sex Industry Network's Sharon Jennings came into the committee and had a lot to say about the activities that had taken place. We wanted SA Police to have a right of reply on that matter and so we wrote to them, and I seek to table a response from the Commissioner of Police, Grant Stevens, dated 23 May 2017, in response to correspondence from the committee dated 10 April 2017, which, for whatever reason, was not transmitted until 31 May 2017 at 12.32pm.

This is quite an extraordinary letter. I could not see for a few minutes when I read it today because of the steam blowing out of my ears. We were told quite clearly by the assistant police commissioner in her evidence on 11 May last year that:

We don't take a view on whether the sex industry should be decriminalised or not. However, I think it is reasonable to say, and I think we have been consistent in our views over many years, that there are some definite challenges and difficulties in policing the current legislation as it exists.

She goes on to make some comments which was consistent with later evidence from the LEB that they have some concerns, and that they would like to retain particular controls or regulation to be able to manage the industry. It is quite clear, that this letter—and I will seek leave to conclude my remarks at the end of this speech because I would like some time to digest it—has reversed that position.

There is some data that may or may not have been useful if it had been provided earlier, but I would have to say that the committee in good faith really did want to get to understand what is going on in South Australia. I would characterise this letter as an attempt to bully the parliament. It has been delivered in the week that the report has been tabled. It actually reverses the police's position on this legislation and says that they now officially oppose it and it reads to me like a brief from the faction of the shoppies union.

Can I just say, thank God for the separation of powers in this state. This is an utter disgrace. It is signed by the police commissioner and I am just flabbergasted that a committee that has been working on this for 18 months is being subjected to some sort of tactic to try to blow our work out of the water by using some fairly emotive language. However, we are the ones who make the law in South Australia. We have sought, in good faith, to engage the police and now we have this letter tabled by the police commissioner and, in my view, it is some underhand tactic to undermine the work of the South Australian parliament and it is an utter disgrace.

You see those signs on the police vehicles that say 'Keeping South Australia Safe'. If this is the sort of bullshit that can happen in South Australia, I have got to wonder how far does this go? Does the police minister know about it? Do other members of executive government know about it? How did this happen? I am not going to be dissuaded in my point of view. I hope that other members of this parliament will not be dissuaded in their point of view. It is unprofessional and I am at a loss for words, which is a bit unusual for a member of parliament.

I turn to the conclusion of the report. The body of evidence was agreed to by all seven members. A majority of four supported the bill as the best way forward, and I believe that a number of members in this place already know what their views are on this bill and how they intend to vote on it. A number have spoken to the second reading. Seven of the 22 members of this place were members of the committee and so have heard and had the benefit of the evidence.

I commend the report to the house. I hope that we can vote on this soon. I think we all know what the issues are. There may well be attempts to drag it out by people who oppose it—anyway, I am not going to go there. The select committee has made submissions and its transcripts are available on the website. As was reported in today's paper, it is my intention to call this bill to a vote soon. If members have particular concerns about that, would they raise those with me, not sort of sneak around and try to do the funny little tactics that might be consistent with this letter, and I seek leave to—actually, no, I am not going to, I do not think I need to, I would just like other honourable members to read the report, make some comments if they wish and let's get on with it, Mr President.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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