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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-18 Daily Xml
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Statutes Amendment (Repeal of Sex Work Offences) Bill

Second Reading

The Hon. T.A. FRANKS (16:38): I move:

That this bill be now read a second time.

I speak in support of the second reading of the Statutes Amendment (Repeal of Sex Work Offences) Bill 2020. It has been a long time in coming, because I first gave notice of this back in February and released it to be introduced in April, but, as the parliament would well know, we have had a pandemic on our hands in the meantime. So the criminal offences of prostitution have not been before the parliament for the last few months, but here they are again.

This is the 14th bill, to our knowledge, before this parliament to update our archaic attitudes and laws when it comes to sex work in South Australia. I note that South Australia does have the most archaic laws in the country.

The laws in this repeal bill are based on a Victorian model, where what is termed 'bawdy houses' and prostitution is made subject to criminal provisions. In 2020, it is high time that we modernised our legislation in South Australia and we admitted that criminal provisions provided for prostitution, soliciting and bawdy houses are in no way a replacement for protection and regulation of the sex industry.

Sex work is not going anywhere. Sex work is undertaken day in day out and, indeed, even during a pandemic, despite those restrictions, and it will not be eradicated by criminal provisions. We have hundreds of years of evidence that this is so. This bill will remove the provisions in the Summary Offences Act for soliciting, where a person who in a public place, or within the view or hearing of any person in a public place, accosts or solicits a person for the purposes of prostitution, or loiters in a public place for the purposes of prostitution, is guilty of an offence that attracts a penalty of as much as $750.

A person who is engaged in procurement for prostitution for a first offence may face imprisonment for up to three months or a penalty of up to $1,250. For a subsequent offence, they are looking at possibly going to prison for six months or paying a fine of $2,500. If that person engages in procurement for prostitution and publishes an advertisement to the effect of that, they may fall foul of that particular provision as well.

I note that the Adelaide Advertiser during the pandemic had ads every single day for sex workers. They became fewer and fewer in number, but they were always there. Every single day, sex work and sex workers needed a way to make a living and demonstrated that no criminal provision was going to stop them from undertaking that, but I note that The Advertiser continued to publish those ads even under a pandemic with no great moral outcry from the community.

Living on the earnings of prostitution is also an offence. A person who knowingly lives wholly or part on the earnings of prostitution is guilty of an offence that will attract a possible six months' imprisonment or a $2,500 fine. In the proceedings for this offence, if the person is living with, or habitually in the company of, a prostitute and has no visible lawful means of support or an absence of proof to the contrary, that person is defined under our laws currently as living on the earnings of prostitution. I note that technically these laws could apply to the children of sex workers in our state.

Further, our current laws define brothels, and a brothel, under the criminal laws of this state, means a premises:

(a) to which persons resort for the purpose of prostitution; or

(b) occupied or used for the purpose of prostitution

The keeping and managing of brothels attracts three months for a first offence or a $1,250 fine, and for a subsequent offence a possible six months' imprisonment or a $2,500 fine. Under 'Keeping and managing of brothels' it is defined that:

A person who acts or behaves as master or mistress, or as a person having the control or management, of a brothel will, for the purposes of this section, be taken to keep that brothel, whether he or she is or is not the keeper.

'Permitting premises to be used as brothels' should sound a warning bell to those real estate agents, to those property owners whose premises are currently used as brothels right across this state who advertise online and in The Advertiser each and every day. If you are a real estate agent or an owner of a property that is being used as a brothel, you could face three months' imprisonment or a $1,250 fine for your first offence and six months' imprisonment or a $2,500 fine for your second or a subsequent offence.

In terms of the Criminal Law Consolidation Act, we also have punishment under certain common law offences for the crime of 'keeping a common bawdy house', which is defined as a 'common ill-governed and disorderly house', and that penalty is indeed a term of imprisonment not exceeding two years. I note that these laws are rarely enacted, but around the debate on sex work, they were increasingly used to attempt to prove a problem.

As Assistant Commissioner Linda Fellows stated to a previous select committee into this, the current laws are unworkable from a policing point of view. Indeed, back in 2016, when giving evidence before a select committee into a previous bill, the SAPOL assistant commissioner, Linda Fellows, stated:

…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. We do commit policing resources to the industry; however, it is a difficult thing under the current legislation to police, and I think some of the outcomes in our court matters, where we have proceeded to criminal charges, probably reflect those difficulties.

I note that under our current laws, there is no specific offence for the exchanging of sexual services for money. Indeed, it is not expressly prohibited for a person to engage in sex work itself but it is, of course, as the aforementioned criminal offences note, an offence to earn a living from its earnings, to work in a brothel or to be living on the proceeds of it. Therefore, there are gaping inconsistencies within our law.

What we have seen over the past few years is those gaping inconsistencies applied in policing in quite unfair and unusual ways. One particular brothel manager who had worked in the industry in this state for decades was charged with money laundering for using an EFTPOS machine to take payments in her brothel. She had previously been told by police that should we ever legalise the industry in this state, she would be one of the first people that they would endorse to continue to work managing a sex work premises.

When the crackdown came, as we debated sex work law reform in this place, brothels were raided and Hansard was seized from the previous select committee and attempted to be used as evidence against those workers in this industry who had come to us and given that evidence, this woman was charged and convicted with money laundering for using an EFTPOS machine—extraordinary and outrageous.

She is now without any protections under the law that we could have afforded her with removing those former sex work convictions under the Spent Convictions Act, unable to even get a job working for Uber Eats. She had 30 years in this industry. She is skilled. She is a mum to a child who she is trying to put through school. She has very little recourse now and very little access to employment because, on her record, whenever she applies for a job or attempts to set up business, she has the convictions of money laundering for using an EFTPOS machine.

In 2020, surely South Australia can acknowledge, as every other state and territory in the country has done as they develop their roadmaps out of this pandemic for the sex work industry, that South Australia is alone in having no roadmap for this industry because we have the surreal situation where a previous worker in this industry now has criminal convictions for money laundering for having used an EFTPOS machine to take a payment for consensual adult commercial sex. In any other state or territory of this country she would not have faced a criminal penalty at all.

Our laws are outmoded and outdated. Coming out of this COVID pandemic where people have joked that they would pay $50 for a hug, surely right now we can understand and accept that sex work is not going anywhere and that this state parliament really does actually have to address the issues that we have sidelined, marginalised and criminalised a group of people who, if they were doing what they do here in South Australia in any other state or territory, would not be treated as criminals. We have let them down as a parliament.

I have moved this bill today not necessarily to solve the problems for the sex industry in how it will go forward but to point out and to have a conversation in this place about how our current laws are in no way a replacement for the supports, protections, procedures and policies that an industry needs. A few criminal provisions protect no-one. These criminal provisions of keeping a bawdy house exist in very few other places in the modern world. South Australian community members are scratching their heads over how this parliament allows these archaic laws to continue.

Getting back to coming out of the pandemic, we have been talking a lot about building a better future and that we would look to a new normal. I hope that at this point people will understand that human contact and intimacy are crucial to many members of our community, that they are not evenly distributed and that the sex work industry plays a significant role for certain groups in our community to enjoy those pleasures and those necessities of basic human life.

I would hope that this bill, however, will be that conversation starter for us to explore how sex work is being policed in this state. I hope we will hear again from those in the industry who we have rarely listened to, who are criminalised and who are offered little protection to have their voices heard by parliamentarians.

I hope we will be able to have a respectful conversation with the police about whether or not we are wasting crucial resources with a dedicated unit in the LEB that polices the sex work industry, contrary to the recommendations in royal commissions in New South Wales and in anti-corruption reports in Victoria. This is contrary to their recommendations about best policing to ensure that we are not susceptible to corruption in this area, not within the community but within the police forces themselves. I hope that conversation can be across both houses.

This is a starting point for that conversation, to get real about the fact that sex work is with us and we have a problem when we have these criminal provisions applied to these people in this industry in a way that is very much out of step with community expectation and in a way that punishes, for example, a person with a disability who in any other state or territory could actually access sex work through the NDIS, and does access sex work through the NDIS.

Does this state intend to continue to punish people simply for wanting that human intimacy and contact or punish people who choose to engage in adult consensual commercial sex to pay their bills, to put their kids through school, to have the life that they choose and to deny their autonomy, their own agency and their own choice, or does it want to start this conversation where we go back to basics and we acknowledge that our current laws are not working, do not provide protections and indeed punish probably the most vulnerable in this industry more than they punish anyone else.

I have had conversations with members in this place and in the other place who are disappointed with the outcome of the previous vote on the sex work bill, from all sides of that vote. I hope this will be the beginning of a conversation where we can move forward on this issue.

These are difficult issues for this parliament to deal with, but we know that in this place time and time again we have actually passed bills for decriminalisation of sex work, yet they fall and they fail and they falter in the other place for reasons of a lack of time, for the inability for private members' business to get to a vote and for a lack of respect for that debate to occur, taking the fullness of time it needs in the other place rather than an hour on a Thursday morning, as has traditionally been accorded to it.

I would say that this bill, by debating the current laws that are criminalised, those archaic laws, and setting a date that those laws would be repealed by July 2021, would put on notice the government to ensure the proper protections are installed, to ensure the industry is able to have not just a roadmap out of COVID but a roadmap to the future that would be required, and allows the government to take on that heavy lifting and the parliament to indicate its view that the criminalised laws that we currently have around prostitution and bawdy houses have no place in the year 2020, let alone the year 2021.

With those words, I indicate that I seek to have conversations members here and in the other place. I would urge the consideration of a joint parliamentary committee to look at the policing of the sex work industry in this state, to have those conversations, to find the consensus to create that way forward and to give the sex work industry in South Australia the roadmap that they do not currently have that every other state and territory in Australia has been given through the national cabinet.

Debate adjourned on motion of Hon. I.K. Hunter.

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