DECRIMINALISATION OF SEX WORK: Hon M Lensink


The Hon. J.M.A. LENSINK (Minister for Human Services) (21:43): The hour is late and it is definitely past my bedtime, so I will be brief. That I will be supporting this bill would come as absolutely no surprise to anyone who has followed the debate. This is the identical bill to the Steph Key bill of 2013. I acknowledge her in the gallery today and for her ongoing commitment to this area. It is also identical to the bill I introduced here in 2015. I apologise to avid readers of Hansard, of which you know there were very many—sorry, that is a joke—who may accuse me of plagiarising my own speeches or of being repetitive or consistent—

The Hon. M.C. Parnell: Consistent?

The Hon. J.M.A. LENSINK: —yes—as the Hon. Mr Stephens has just outlined of his own position. It is true to say that our current sex work laws are often poorly understood and difficult to police. For instance, the act of providing a service for payment is not of itself illegal, but a number of the activities surrounding it are. This has caused difficulties with policing, as expressed in several statements from South Australia Police, including to the select committee which took place under the previous term of parliament. I quote Assistant Commissioner Linda Fellows in evidence on 11 May 2016. She said:

…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.

This state's laws have also resulted in many workers becoming victims of violence, theft and other criminal behaviour and witnesses to serious crimes. The fear that evidence to SAPOL will lead to informants having that information used against them as evidence of sex work activities leads to criminal acts going unreported and offenders free to continue committing their crimes. On this basis, this parliament has several choices: it can support the status quo, effectively ignoring sex workers as victims of crime; it could legalise sex work and seek to regulate it through various government agencies, as occurs in Victoria, Queensland, the ACT and the Northern Territory; or it could decriminalise sex work, as occurs in various forms in New South Wales and New Zealand.

While the so-called Nordic model is viewed by some as an alternative, it is in my view a form of criminalisation by another name and, in the view of some feminists, it is based on the following quote from a report, entitled Sex Work Law Reform in Canada: Considering Problems with the Nordic Model, from 2013 in the Alberta Law Review. I quote:

…all men who purchase sex are deemed to be aggressors and all women in sex work are deemed to be victims of male violence and patriarchal oppression…

Sex workers oppose the Nordic model on the grounds that it compromises their safety for similar reasons to the existing laws. This bill follows the decriminalised model.

Parliamentary reports from New Zealand and New South Wales have found that decriminalising their laws has been effective in improving the health and safety of workers as well as reducing crime rates. For that, I am referencing the New South Wales Parliamentary Research Service, Brothel regulation in New South Wales (August 2015), and the New Zealand Parliamentary Library Research Service, Prostitution law reform in New Zealand (July 2012).

In order to ensure that there were not any unintended consequences of this bill, in 2015 it was referred to a select committee of seven members of the Legislative Council. That included the Hons Robert Brokenshire, John Darley, Tammy Franks, John Gazzola, myself, Andrew McLachlan and Tung Ngo. This committee took evidence and reported after 18 months. It is worth noting that every MLC agreed that the body of the report is a true and fair representation of the evidence. For those who would like to have an objective understanding of the bill, I would encourage them to read it. By a majority of four to three, that committee agreed to support the bill in its form.

There are and will continue to be many claims about what this bill does and does not do. It amends the Criminal Law Consolidation Act 1935, removing references and offences relating to prostitution or being a brothel landlord. Sections 66 to 68 of the act, which provide penalties for sexual servitude and related offences, deceptive recruiting for commercial sexual services and use of children in commercial sexual services will remain. The bill also introduces a new penalty of providing a service to a child or minor, which is proposed section 68AA.

I would encourage honourable members to look at those particular clauses very closely: sexual servitude and related offences, deceptive recruiting for commercial services and use of children in commercial services. In my view, some of the contributions against this bill have described situations which are clearly already illegal. Sunlight being the best disinfectant, I believe that the industry will be in a better position to ensure that people who are in those horrid situations are able to exercise their choice.

The bill also amends the Summary Offences Act 1953 by removing a range of offences, such as soliciting, living on the earnings of prostitution and those relating to brothels. The bill amends the Equal Opportunity Act 1984 and the Spent Convictions Act 2009 to address the situation for those who have received convictions under the Criminal Law Consolidation Act or the Summary Offences Act and are therefore unable to obtain other employment, which they may wish to, for instance in aged care or childcare sectors, which require screening checks as part of their employment screening. Those clauses are specifically designed to provide a pathway for those who wish to exit the industry. Amendments to the Return to Work Act 2014 provide that safe working conditions must be adhered to.

What the bill does not do, and there were some documents circulating several years ago, as often happens in these conscience matters, for which I put together some notes in anticipation. So in trying to be helpful, I would like to provide those to the chamber.

The first claim is that the bill places no restrictions on where soliciting or prostitution can occur, which will no doubt result in an increase in public and private nuisance. My response is that there are a number of offences under the Summary Offences Act that address public nuisance and disorder matters, enabling the police to intervene and charge offenders. These include, but are not limited to, section 6A, which is use of threat or unlawful violence against persons or property; section 7, disorderly or offensive conduct or language; sections 9A and 9B, supply of prohibited items, e.g. drug paraphernalia; sections 17 and 17A, which relate to trespass; section 18, which relates to loitering; and section 23, indecent behaviour and gross indecency. None of these offences is altered by the bill.

The second claim in that document is that it allows brothels to be set up in any location, including any neighbourhood next to homes, schools, churches, etc., without appropriate oversight, management or restriction on the number of prostitutes working on site at any given time or at the place designated.

My response is that decriminalising prostitution does not mean that brothels can be set up anywhere. That claim is mischievous and incorrect. Planning laws determine where businesses can be set up. Local councils and the state government have the power to determine what types of industries are appropriate in which zones. Councils will take into account nearby land uses to ensure that sex work businesses do not cause a nuisance. Bringing sex work within the law actually makes it easier to regulate, not harder.

The third claim is that it will proliferate the number of people engaged in prostitution. My response is that there is no evidence that decriminalisation of sex work increases the number of sex workers. New South Wales laws were decriminalised in 1995 and New Zealand adopted a similar model in 2003. Several parliamentary and university reports from those jurisdictions demonstrate that there has not been an increase in the number of sex workers or street-based workers.

The fourth claims is that it legitimises pimping. My response is that the current laws favour pimping over a decriminalised model, as workers in an illegal environment are less likely to seek assistance in order to maintain their secrecy to avoid detection by SAPOL. In any case, pimping has been a scarce practice in Australia since the early 20th century.

The fifth claim is that it removes the police's right of entry and oversight. This response was provided to the select committee by the Law Society. SAPOL has a broad range of search powers, which only require reasonable suspicion that an offence has been committed. These powers are provided under numerous acts and include but are not limited to:

Offences Act 1953, section 67 and sections 68 to 72;

Controlled Substances Act 1984, sections 50 and 52;

Criminal Assets Confiscation Act 2005, sections 172 to177;

Crimes Act 1994 (Commonwealth), sections 3E to 3F;

Criminal Investigation (Extraterritorial Offences) Act 1984, section 54;

Firearms Act 1977, section 32(3);

Migration Act 1958 (Commonwealth), sections 487D to 487E;

Serious and Organised Crime (Control) Act 2008, section 33; and

Summary Offences Act 1953 (Indecent Behaviour and Gross Indecency), section 23.

The sixth claim is that it creates ambiguities in return to work legislation with the cost being borne by already burdened taxpayers. My response is that the amendments remove legislative ambiguities from the Return to Work Act 2014.

The seventh claim is that it does not afford appropriate antidiscrimination provisions to protect churches and Christian schools. My response is that amendments to the Equal Opportunity Act and the Spent Convictions Act are important to assist those who wish to leave the industry to gain employment in other fields. The bill adds discrimination against sex workers or former sex workers to a number of existing grounds, those being marital or domestic partnership status, identity of spouse or domestic partner, pregnancy, caring responsibilities or religious appearance or dress for which organisations may not discriminate.

This means that it will also become illegal to discriminate against someone under these circumstances who is applying for a job, applying to be a member of an association, applying to be a student, seeking to be served in a shop, seeking access to accommodation otherwise provided on the free market or seeking a charitable service. These services are not unique to churches and Christian schools. Religious bodies retain their general exemption from equal opportunity laws in relation to training, ordination and appointment of members of religious orders.

The eighth claim is that it places oversight and regulatory burdens on already overworked and under-resourced local councils that, according to representatives, are ill equipped for what will be required of them. This response, in my view, is similar to claims 1 and 2. Police, rather than councils, will retain the right to enforce provisions in the Summary Offences Act. Councils rightly retain significant local planning approval powers.

The ninth claim is that it will potentially proliferate explicit sexualised advertising on billboards and other public places, including radio and even television, as we have seen in some jurisdictions. The response is that any business must seek development approval for its signage from the local council, in accordance with requirements of development laws, which also prescribe the nature of approval complaints processes. Furthermore, the Advertising Standards Bureau governs public advertising and provides for complaints from members of the public in banning particular advertisements.

The 10th claim is that it will dramatically increase the occurrence of street prostitution, or so-called streetwalkers. The response is, again, please refer to claim 3. There is no evidence that this has been the experience in other decriminalised jurisdictions. Street-based sex work is not a preferred mode of linking with clients. Hence, only 20 of the 2,000 sex workers who operate in South Australia are involved in this form of work.

I would also like to address the issue of trafficking, because this was a particular concern of mine and something that we did seek evidence of. I wrote to the federal minister for justice in 2015 and specifically asked him about these matters. His response was provided to me on 13 October 2015. It is in the report, but I will quote it, because I think it is helpful for the debate:

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 the 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.

With those words, I commend the bill to the council.rom a bakery?