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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

Adjourned debate on motion of Hon. J.M.A. Lensink.

That the report of the select committee be noted.

(Continued from 31 May 2017.)

The Hon. T.T. NGO (16:49): I rise to put on the record my views on the report of the Select Committee on Statutes Amendment (Decriminalisation of Sex Work) Bill (the report) that was tabled in the last sitting week by the presiding member, the Hon. Michelle Lensink. I do not support the committee's recommendation on the bill in its current form. During the select committee's inquiry into the full decriminalisation bill I raised a number of practical concerns.

I want to put on the record that I do not have a moral objection to allowing consenting adults to have sex in privacy with the exchange of money involved. I am, however, concerned that the bill will have unintended consequences that have not been given adequate weight by the select committee in its recommendations to support the bill in full. My core concerns in relation to the bill are:

1. There is a risk of an increase in public soliciting due to the removal of the specific offence.

2. It places the burden on our local councils to deal with planning for brothels without providing any guidance and powers to close noncompliant brothels.

3. There is evidence to suggest that the transnational sex slave trade has proliferated in jurisdictions where sex work has been decriminalised.

I will now deal with these briefly, in turn. The bill proposes to remove offences in the Summary Offences Act that specifically prohibit public soliciting. Proponents of the bill, including the Law Society, argue that general provisions of the Summary Offences Act that deal with public nuisance or disorder offences will cover public soliciting. Although these general provisions may technically cover public soliciting, I am concerned that removing the specific offence will make it less clear to the community that public soliciting is illegal.

As many honourable members are aware, I was a councillor for the Port Adelaide Enfield council for 18 years before I took on this role. I represented the areas at Hanson Road, and the biggest concern of the residents there was the public soliciting on Hanson Road. That has very often had the most media attention about the image of the area. So, I do have concerns about the current bill in terms of making things less clear about public soliciting. Perception, in this respect, is particularly important because the practical enforcement of such provisions can prove difficult.

It is foreseeable that a member of the community sees public solicitation, reports it to the police, and before the police attend the sex worker has moved on. I am also concerned that the bill places the responsibility for planning approval of brothels on local councils without providing any guidance as to what constitutes a brothel, location guidelines or necessary powers to enforce compliance.

The bill proposes to remove any reference to brothels (or bawdy houses) from legislation, and does not include evidentiary requirements to prove that a place is a brothel. The councils of Tea Tree Gully, Salisbury and Port Adelaide Enfield have expressed concern about how they will be able to enforce the closure of noncomplying brothels. This is also a key concern of mine, as without a definition or evidentiary requirements brothels could pose as other businesses, for example, karaoke bars or massage parlours.

It also does not propose any guidelines for council planning policies in regard to regulating appropriate planning zones for brothels. My understanding is that local councils will be required to consider brothel applications just like any other business development application, without any specific zoning restrictions or guidelines. This is concerning, as many members of our community may not be comfortable with a brothel operating in specific areas, particularly near schools or places of worship.

A previous version of this bill proposed boundaries for how close a brothel could be located to schools and churches or places of worship. To meet community expectations, parliament should consider a regulatory model or basic restrictions which would confine brothels to industrial or mixed-use zones—or, if in residential zones, then they should be located at least, say, 200 metres away from a place of worship or a school or children's centre. Leaving this to local councils could result in a range of different rules regarding minimum distances between these places. However, I do understand that a different distance may be required within the Adelaide CBD.

The bill also does not provide adequate enforcement provisions for the closure of noncompliant brothels. In respect of this point, the select committee heard from the Law Society that this is a matter for planning legislation or regulation, a separate issue from the bill. I disagree with this, as if the bill passes without any guidance as to brothel planning applications or powers to enforce noncompliant brothels, it will be an issue for local councils. I was also disappointed that the Law Society, which usually sees fit to point out what it sees as the general potential impact of bills and suggests amendments, did not do so in its submission before the select committee.

My last core concern in relation to this bill is that there is evidence that the transnational sex slave trade has proliferated in jurisdictions where sex work has been decriminalised. I am concerned that the report and proponents of the bill have not given enough weight to this issue and its enforcement, particularly given that the bill also proposes to remove SAPOL's general power of entry into suspected brothels. I will touch on this again later.

Proponents of the bill correctly assert that sections 65A to 68 of the Criminal Law Consolidation Act explicitly prohibit sexual servitude, including of children; however, it needs to be noted that other states have similar laws, yet state and federal policing authorities, particularly in New South Wales and Victoria, which have decriminalised and legalised sex work respectively, are reporting growth in these abhorrent activities.

I also note that the Select Committee on the Regulation of Brothels in New South Wales pointed out that, between July 2012 and August 2015, the Australian Federal Police received 90 referrals Australia-wide for suspected sexual servitude matters: 68 were accepted for further investigation and, of these, 56 were in relation to New South Wales and Victoria.

When Chief Inspector Gray appeared before the select committee she advised that SAPOL has intelligence, particularly from interstate, that there are instances where women from overseas are offered a new life in Australia, sometimes a certain job or education, and when they get here it does not end up occurring. The women are told that to get the job or education promised they have to pay off their debts by working in certain places and providing certain services. However, sometimes it is a never-ending debt, meaning that although those women may have agreed to work in these places on the condition that they receive an education or different job when they have paid off their debt, they are being exploited.

When Assistant Commissioner Fellows gave evidence to the select committee she advised that roughly 180 brothels of varying sizes and sophistication operate in South Australia. In terms of serious and organised crime involvement, there is intelligence that says that, firstly, outlaw motorcycle gangs are connected or linked to probably between 5 per cent and 10 per cent of those operating brothels. Around 30 per cent of brothels known to SAPOL are what SAPOL would call Asian brothels, meaning brothels that have Asian workers or are operated by Asian owners.

Some of those brothels are of concern to SAPOL as intelligence suggests that there are women there either as illegal immigrants or on temporary visas or who have been brought into the state for short periods of time and who then leave again. It is then difficult to know who the women are and what they are doing. Assistant Commissioner Fellows was clear that not all of these brothels operate in this manner but that it is an issue.

That brings me back to the bill's proposal to remove section 32 of the Summary Offences Act 1953 which contains the power for SAPOL to enter and remain in suspected brothels. I am concerned that forcing SAPOL to issue a warrant and execute entry on notice to a brothel owner may make the situation worse. In correspondence to the select committee, Mr Grant Stevens, the Commissioner of Police, indicated that SAPOL generally uses the power to enter and remain in a suspected brothel under section 32 of the Summary Offences Act but that a general search warrant is issued when the conditions of section 67 of the same act apply.

Further, the police commissioner indicated that a warrant under section 52 of the Controlled Substances Act 1984 is used when those conditions are met. I note that the select committee received this response the day after the report was tabled. However, when SAPOL gave evidence before the select committee it raised concerns about losing right of entry as well as pointing out that right of entry is available to SAPOL in the tattoo industry.

My key issue with the bill in its current form is the unintended consequences that it might have for the community and, therefore, I will not be supporting the bill in its current form and I intend to move some amendments based on my contribution today.

The Hon. T.A. FRANKS (17:04): I rise to indicate, unsurprisingly, my support for the report of the select committee, which looked into the Hon. Michelle Lensink's bill to decriminalise sex work in this state. I know it is a bill brought before this place by the Hon. Michelle Lensink of the Liberal Party that has been mirrored by Steph Key, the member for Ashford, in the other place. The bill comes to us not just with my support on behalf of the Greens today but with the support of the Sex Industry Network of this state, which represents those who work within this industry.

The committee also, through the committee processes, found the voice of many others who support the decriminalisation of sex work in this state: those who recognise that sex work has existed for probably time immemorial, in one form or another, and that those who are engaged in it should be treated with human rights and respect.

I will start with the pre-eminent international human rights organisation, Amnesty International. Amnesty International supports the decriminalisation of sex work. Indeed, it has had international council meetings, passing resolutions and quite an extensive report was released in the last year that supports the decriminalisation of sex workers, the preferred legal model to move ahead to protect particularly women's but also general sex workers' human rights.

They start at the point of supporting decriminalisation to prevent and redress human rights violations against sex workers and call on all states to review and potentially repeal laws that make sex workers vulnerable to human rights violations. Amnesty International has an overarching commitment to advancing gender equality and women's rights in doing so and is quite cognisant of the harm reduction principle. They are not alone in that view. We heard from the Executive Director of SafeWork SA at the time, Ms Marie Bolland. SafeWork SA provided evidence on how they believe, from that organisation, that it would be more than possible to see the decriminalisation of sex work undertaken in this state.

Their voices were echoed by the Working Women's Centre and SA Unions, as well as the Australian Services Union quite specifically, which all supported the decriminalisation of the sex industry so that those working in the industry would have the same entitlements as other workers. They called it, in some cases, an extraordinary double standard and noted that sex work is work and, as such, is not necessarily harmful to women.

Health groups, such as Clinic 275 and others operating within the AIDS and HIV areas, and Relationships Australia, pointed to the health benefits. Relationships Australia argued that the current legislation is archaic and not in line with community standards. I could not agree more. The consequences of this are that sex workers are left unprotected and their legitimate concerns are often not addressed.

By having a legal fiction, where we know that sex work happens and we treat sex workers as criminals and sex work as a crime, yet we have community standards that do not support that view and a policing regime which, by its own admission, does not really police these activities, we as a state parliament are overseeing a system that puts sex workers in a vulnerable position that we need not put them in. If we treated them as a decriminalised industry, if we gave those people working in the industry legal protections under law, rightful workplace protections, we would also extend to them their full suite of legal protections.

A sex worker will often not go to the police if they are robbed. A sex worker will often not go to the police if they are raped. A sex worker knows, because they are already criminalised by the very nature of the activity that they undertake to make a living, that they are not often treated fairly by those who are here to protect all of us. So, sex workers are protected by decriminalising their industry not only when they are working but in their fuller lives.

The evidence presented by Scarlet Alliance certainly underscored this. The evidence presented by Scarlet Alliance pointed to examples where, if we move to a decriminalised system, as has been done in New South Wales and New Zealand, would the sky not fall in and will people not be having sex in public parks, as was presented in certain second reading speeches to the bill that led rise to this report. It is a system that is workable. It is a system that was the subject of a 2015 review in New South Wales and it has been found to be a system that is the preferred system, the decriminalisation system.

In New Zealand, it has been in operation for over 10 years. There we have not seen the sky fall in and we have not seen society collapse. In New South Wales, we have not seen the sky fall in and we have not seen society collapse. As I say, a review of that system did find some of the things that the Hon. Tung Ngo mentioned. There was a lack of resourcing for local governments in terms of implementation of the systems, but that lack of resourcing was simply a matter of providing the resource to address that issue, not starting again and repealing the decriminalisation laws.

This report is quite mindful and I do believe that we have suggested that a resourcing of some level be given to local councils under a decriminalisation system through the provisions under the new planning framework. Manuals, training, information, education and resourcing will address those particular council governance issues, as they would in any other industry. We have rules, policies and protocols that come out of this parliament that we operate with in this state all the time for many industries. If we can do it for every other industry, we should be able to do it for the sex work industry.

When we look at the debate and how it is unfolding, I do note and I am heartened that all of the members of the committee were reasonably supportive and worked productively overall. While investigating a decriminalisation model, as put forward in a bill, where clause by clause witnesses and members and members of both the South Australian community and the international community were able to make submissions, make suggestions, suggest amendments or give their support, the committee was inundated with a concerted lobby group calling for what they call the Nordic model.

The Nordic model is a model of recriminalisation. The Nordic model, as has been endorsed in the dissenting statement by the Hon. Andrew McLachlan and the Hon. Robert Brokenshire, is a model that says that, where sex work takes place, it is not the worker but indeed the client who is criminalised. That is not decriminalisation, that is recriminalisation. As a state, we have a high level of community acceptance that sex work happens and we have a current situation where it is not policed in a way that actually reflects those community attitudes: that this is something that happens and something that will continue to happen and has happened from time immemorial. Recriminalisation means taking clients and turning them into criminals.

The impact of that is twofold. First, we create a whole new category of criminals in this state. Proponents of the Nordic model claim that their approach is somehow feminist, that somehow it is a support of women that drives their motivations. I have to say that I have come from the women's movement, I have been a feminist for most of my adult life, I have worked for the oldest and largest women's membership movement in the world (the YWCA), I have been to the Commission on the Status of Women, and Beijing+15 conferences and I have yet to see FamilyVoice there as part of the feminist movement. I have yet to see FamilyVoice side with feminists, except on this issue of sex work.

I do not buy the argument that the Nordic model is a feminist model. I do listen to the Soroptimists, to YWCA, to Amnesty International and to the Business and Professional Women's Foundation when they support a decriminalisation model because they have actually worked with women, they have worked with sex workers and they do speak on behalf of women from a feminist perspective on a multitude of issues. On this issue, it is only there that I hear these proponents of the Nordic model somehow call themselves feminists, when, normally, I think it would be fair to say they would think feminism is a dirty word.

That is the point here. We are talking about an issue that people often see as dirty and unacceptable and so they use tactics to get their way to ensure that any law reform, and the very law reform that is supported by the Amnesty International report on this sector, is killed off. They talk about recriminalisation. They talk about this model that criminalises the client and somehow saves the poor female sex worker that they portray to be both drug addicted or abused as a child or in some way vulnerable and a victim.

I listen to Scarlet Alliance and I listen to the Sex Industry Network when they tell me that they do not want recriminalisation, they want decriminalisation. I also warn that if you set up a system, when FamilyVoice's own evidence is 'the client is king' in this industry, where the person that we are going to call the criminal, the client, will actually find themselves being protected by the sex worker, it will further put that sex worker at risk and continue to leave them vulnerable.

But you also deny the reality of the sex work world if you think that all women are sex workers and all clients are male. One of the most moving pieces of evidence was given by two women who presented to the committee, both of whom had disabilities. They came and spoke to us. One woman, who I will call Jane for the purposes of this story, is 45 years old. Jane was diagnosed with multiple sclerosis in 2001. She said that if she had known then just how much multiple sclerosis was about to destroy her, she would have travelled the world more and she would have had more sex.

Now a disabled woman, Jane has sought out a sex worker because she had developed a negativity towards her body. She was becoming very depressed and, as she stated, 'No-one wants to touch a disabled person let alone have sex with them.' Jane told us that she craved to be held, to be touched and inspired again. She felt her creativity to be connected to her confidence and her sensuality. If she could feel sensual again, she could feel whole again. That was the evidence she gave us. I commend her for coming and sharing her story because this is an area that people do not talk about in public and certainly not often in the parliament.

Imagine a Nordic model, a recriminalisation model, that treats Jane, a woman with MS, as a criminal. That is the model that you are supporting if you support the Nordic model—the model that will create a criminal out of a woman with MS who simply wants to be held. There are many reasons why people visit sex workers, yet the stigma attached to this industry due to criminalisation is negative. It creates shame, and it lends itself to seediness and seclusion. Decriminalisation will create a legal framework around sex work that could allow sex workers to not be so stigmatised and to have the full protection of the law.

In terms of that model, it also assumes that all clients are male and all sex workers are female. Sex workers are female, transgender and male. How does a model that is purported to support women and is presented to us as one that supports women, treat a sex worker who is a male? This is a simple question that I would like the proponents of the Nordic model, who say that they are there for feminist reasons and to protect women, to explain. How does that model treat Jane, who has MS and simply wants to be held? When Jane did that, she went online and she researched and she knew that she was breaking the law just to get a bit of human contact. Do we really think that Jane should be treated as a criminal in this state, either under a current criminalised model or a recriminalised model?

I will leave members with those few thoughts. I have no doubt that this will be an interesting debate when we get back to the bill in its entirety. I commend the work of the report. It is quite extensive, it heard from a range of views, it has put on the record advice from the Law Society, evidence from places like New Zealand and the experience of places like New South Wales, and I think the human rights approach of Amnesty International should be taken well under consideration. When we put sex worker rights into a decriminalised model and give them the very workplace protections that we enjoy, I think that will be a very proud day for this parliament.

Debate adjourned on motion of Hon. J.M. Gazzola.

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