DECRIMINALISATION OF SEX WORK: Hon E.S. Bourke


The Hon. E.S. BOURKE (21:22): It is not easy for me to stand here tonight and do what I am about to do, but tonight is not about me. A conscience vote for me is about finding a solution, a solution that actively seeks to support the interests of workers, business owners and the community. I have not arrived at my decision lightly, and my decision is not based on my personal view of what could be right or what could be wrong. I have not approached this by looking through a moral lens solely based on the title of this bill.

Every day of my working life I have dedicated to supporting workers' rights. I have stood shoulder to shoulder with hundreds of volunteers over many years to protect the rights of workers in their workplace. It is never easy taking a stand, either for or against, so I do congratulate the Hon. Tammy Franks for bringing this bill into this chamber, and I congratulate the Hon. Michelle Lensink and the former member for Ashford, Steph Key, for taking the steps to remove a stigma that sex workers feel they are confronted with. The intention of this bill, which I do appreciate, is to seek to make all workplaces safer places.

Just as I stand here to thank other speakers for highlighting their positions on this bill, I have stood in this chamber many, many times to highlight my opposition to complete deregulation of trading hours. In my view, regulation provides a level of protection: protection for business owners, the workers and the community.

I see this bill in the same light. I am not opposing this bill's objective to protect the rights of workers. I am not opposing this bill because it seeks to remove a record of criminal convictions, and I am not opposing this bill based on my personal opinions. These are in fact some of the very reasons why I would want to support this bill, but there is a very big 'but'. There is another side of the coin.

Unlike any other conscience vote before us in the near future, this bill is unique. Unlike the abortion bill or the voluntary euthanasia bill, the decriminalisation of sex work bill provides a unique level of complexities, complexities I feel are not addressed in this bill. The decriminalisation of sex work bill is drafted on the basis of deregulation, with a view that the sex industry is no different from any other industry.

As one supporter of this bill stated to me, this bill will remove a stigma and would enable a brothel to be regulated in the same way as a bakery. While there would probably be food handling elements that would indeed make a bakery more regulated, I will continue to use this supporter's analogy throughout my speech as I continue to explain the differences.

For me, the question, and the question I put to this chamber, is: is a brothel the same as a bakery? Again, putting moral views aside, putting the rights of one's choice of workplace aside, is a bakery the same as a brothel? This bill, under part 2, clause 4, proposed section 68AA, has a provision to protect children from being subjected to sexual services, therefore making it an offence, under the age of 18 years of age, if one chooses to work in the sex industry. Under part 3, clause 7, the definition of a 'sex worker means a person who provides sexual services on a commercial basis'. I want to read the last few words back to you: 'a service on a commercial basis'.

We have established that you need to be over the age of 18, and a service is provided on a commercial basis. If we then compare these two factors, after removing all emotion, all opinion, all beliefs, you are left with a similar commercial business to a pub, a tattoo parlour, a tobacco retailer or a licensed gambling premises. All of these commercial services require staff to be over the age of 18, but with one fundamental difference, one difference which removes a layer of protection.

The sex industry, unlike all the current industries I have just listed, would have no regulations placed on the industry outside the acts this bill refers to, and there are many acts within this bill. It would be viewed like a bakery, not like a pub. Why is this an issue? Again, taking morals out, taking personal views out of this decision, that would be because a brothel is an adult-only service. It is a criminal offence, as highlighted in this bill, to provide commercial sexual services to a child. Therefore, just like every other adult commercial service in South Australia, this bill would be drafted to include regulations to ensure all are protected: the workers, the owners and, the biggest stakeholder in this, the community.

Let me walk you through some of the regulations I understand are imposed on the industries I have just listed. I apologise, as this is going to take a while, and perhaps that is my very point. If you own a pub, you are regulated through a licence. In order to hold a licence, an individual must be, as the term puts it, a fit and proper person. In determining whether a person is a fit and proper person, the licensing commissioner must have regard to the reputation, honesty, integrity and creditworthiness of a person and their associates, including family members.

The liquor licensing commissioner assesses this fit and proper status. Liquor licence applications are also provided to SAPOL for a prior conviction check and SAPOL is also given the opportunity to provide other information relevant to the application. Applications must also be advertised and made available for public inspection and any person can object to the granting of a licence. Liquor licences can be refused at the discretion of the liquor licensing commissioner if it would be in the public interest to do so.

The physical premises which serve alcohol are also heavily regulated. When applying for a liquor licence, it is necessary to provide some or all of a range of documents, including a floor plan of the venue, copies of the lease agreement or a certificate or a title, business structure information, and capacity reports which determine how many people can occupy the building at one time. These documents are used to satisfy the liquor licensing commissioner that the premises for which the licence is sought are of sufficient standard and that the operation of the licence on the premises would be unlikely to result in undue offence, a noise disturbance or inconvenience to people who reside, work or worship in the vicinity, or to sway the safety of children attending kindergarten, primary school or secondary school in the vicinity.

After a liquor licence is granted, a licensee must also comply with a general code of practice which mandates practices in relation to underage drinking, drink spiking and the development of a risk assessment and management plan. The licence conditions vary depending on the nature of the premises but, for example, at a business with an entertainment venue licence, liquor can only be served while live entertainment is taking place unless a customer is seated at a table and has ordered a meal. There are also regulations around internal signage and a liquor licence must be prominently displayed at the premises at all times.

It is also a criminal offence for a person to enter a licensed premises if they are wearing or carrying any items associated with declared criminal organisations. Police and other authorised officers have the power to enter a licensed premises at any reasonable time and inspect the accounts and records. Police may also enter and search a premises which they believe on reasonable grounds is being used for the sale of liquor without a licence, and can clear or close a licensed premises if a police officer believes on reasonable grounds it would be unsafe for members of the public to enter or remain. The liquor licensing commissioner also has the power to vary, suspend or impose conditions on a licence in the interests of public order and safety.

A gambling venue: another adult venue. Again, as I understand, different forms of gambling are also licensed in South Australia. Before applying for a gambling machine licence, an individual must already hold a liquor licence and, in addition, is required to obtain a social effect certificate. Licensees also have to operate in accordance with a managerial code of conduct which covers advertisements, responsible gambling operations and staff welfare.

Each gaming machine licence is also subject to a number of conditions which regulate machine operations. Gaming premises are also heavily regulated, including restrictions on the location of ATMs, the use of multilingual signage advising of problem gambling assistance, and the prominent display of the time of day throughout the venue.

Tattoo regulations: another adult venue. Tattoo services, as I understand, are not licensed in South Australia but the industry is regulated. Before commencing business as a tattooist, an individual is required to inform the local council. Businesses providing tattooing services must also inform the state government through Consumer and Business Services of the names and addresses of all directors, details of all employees, details of lease agreements or certificates of title, and details of the place where tattooing is performed.

Certain individuals can be disqualified from providing tattoo services if they or a close associate or family member are a member of a prescribed organisation. Local council officials are empowered to inspect tattoo parlours under the South Australian Public Health Act. These inspections ensure the hygiene of the premises. All of these are adult commercial services, and they are highly regulated. I am not for one second suggesting that these are the regulations required. I am purely highlighting that a level of protection is required, and that can only be achieved through a level of regulation.

I would like to work through some of these opposing regulations between a gambling venue and a brothel under this bill, particularly the age of a person working on the premises of a commercial service. This question was raised in the last committee stage by, I believe, the Hon. Dennis Hood, along the lines of, 'Can a person working on the front desk in a brothel be under the age of 18?' I will expand on this because I believe it is important.

If there is a person working in accounting, social media or any element other than providing a commercial sexual service, I have been advised there is no requirement for them to be over the age of 18, again as a brothel is classed the same as a bakery. A 14 year old could legally be employed to staff the front reception desk of a brothel. This bill removes criminal records of previous sex work offences; therefore, the argument that licensing would be an issue due to previous criminal convictions would be irrelevant, unless the criminal offence were outside the provisions of being a sex worker.

Many may also argue that brothels are already in our community. Yes, they are, but the argument is that they are already there and the community are not aware; how will this bill change that? In this chamber, we all know—well, I hope so—that we as state politicians cannot place an advertisement in our community greater than one metre by one metre. If this bill is successful, a person working in the sex industry will be able to place a banner on their shopfront larger than a state politician would be able to.

Why? Because under this bill there are no additional regulations on size, there are no additional regulations on content and there are no additional regulations on placement of the advertisement within the community on a shopfront or on a bus shelter. So the argument that brothels are already in our community and they are not visible I believe is a weak argument. I would like to expand on regulations regarding content of advertising—on it not being regulated in this bill.

Again, in this bill, the title of a person working in this industry is defined as a 'sex worker'. Again, taking morals and opinion out, would there not be an argument that a billboard three metres by three metres could be displayed outside a school with the words, 'See your sex worker here'? This would be no different from saying, 'See your baker here.' It is their job title.

There are many elements of this bill I agree with, but there are too many underlying issues I cannot support. This bill was drafted by sex workers with the intent to protect their rights in the workplace, but it has limited regard and no regulation for the other side of the coin. The same community considerations placed on other adult services are not imposed on the sex industry. There is no additional regulation on the location of streetwalkers, and there is no additional regulation on any element of this bill that is not imposed on a commercial bakery.

Simply saying this bill is an improvement on the current situation but in the same breath saying it is not the best bill, simply saying 'Close enough is good enough' is not respecting what this bill does not address; that is, the physical footprint this adult commercial service could have in the community. We regulate many commercial industries more than this bill regulates the sex industry, from hairdressers, to pet shops to car yards. All these industries have additional regulations imposed on them above the regulations imposed on the sex industry under this bill.

It is my understanding that if I were to move to Adelaide with a criminal record and set up a hotel, a car yard, a tattoo parlour or a hydroponics shop, I would not be able to open any of these businesses; I would not be able to work in any of these industries. If I were to move to Adelaide with a criminal record and set up a brothel, I would be able to work in a brothel and I would be able to own a brothel under this bill.

This bill has a focus on choice—choice to be a sex worker—but it does not provide any additional regulation to support those who do not choose to be a sex worker. If this bill passes, our lower house colleagues will be confronted with an additional challenge of the complexity that this is a bill that does not address its physical footprint within its communities, and applies regulation similar to other adult-focused industries—from advertising to location.

Once you deregulate to the extent of this bill it is difficult to turn back the clock, as New South Wales is discovering. This bill goes much further than that in New South Wales and, despite the New South Wales 2015 review highlighting a need to address licensing to help regulate the industry, the review was voted down in parliament. New Zealand has a licensing model, as does Victoria.

After highlighting all these issues, this bill is built on the foundation of complete decriminalisation. By regulating one component of this bill, it is difficult not to have rippling implications through the remainder of the bill. The definition of a brothel and the definition of a residential sex worker would need to be addressed to avoid all sex workers requiring a licence as, too, would any other elements of this bill.

I will not stand in the way of amendments being made to this bill. Our job as legislators is to ensure that we provide support to all South Australians, and I hope that the consideration of all South Australians will be duly given at the committee stage. While I am open to legislative reform in this area, I am unable to support the bill in its current form. I will be seeking to make amendments that protect sex workers and the community. But the integrity of this bill, which implies that this should be an industry treated like a bakery, with no additional regulation imposed, will make it difficult to amend.

I agree this is not the best bill, I agree we need legislative reform and I agree all workers have the right to feel safe in their workplace, but I do not agree that regulation should not apply to ensure a level of protection is given to those who choose and those who do not choose to be part of the sex industry, be that as a sex worker or in the general community. I understand that this bill has been drafted to remove a stigma that suggests that the sex industry is just like any other industry.

I will support this bill through to the committee stage, but I do not support it in its current form. The question I leave you with after this discussion is: is a brothel different from a bakery?