DECRIMINALISATION OF SEX WORK: Hon R Lucas


The Hon. R.I. LUCAS (Treasurer) (21:59): Can I at the outset acknowledge the Hon. Tammy Franks in bringing this bill to the chamber, as her predecessor, the Hon. Michelle Lensink, and others in another chamber have been acknowledged and have brought their bills with genuinely held views in relation to the worth of the legislation that they have introduced.

But I want to acknowledge and congratulate, at the outset, the Hon. Clare Scriven and the Hon. Emily Bourke for their contributions to the debate. They are new talent, while many of us are repeating many of the views that we have had in the past on this legislation, as a number of us have already indicated, and I will do so as well.

I acknowledge the courage of the Hon. Ms Bourke and the Hon. Ms Scriven because it is not always easy swimming against the tide of prevailing opinion within your own political party. I acknowledge their contributions this evening and certainly listened to each of them with great interest. I think they added value to the debate. I am sure when we get into the committee stage, the detail they have brought to the second reading will also be applied to the detail in the committee stage of the debate.

One of the things in terms of the legislation that a number of the members addressed in this particular debate and also in other debates—in particular, I think the Hon. Ms Bonaros referred to it, although others did as well—is that there is a view that has been put during this debate and other debates as well. I understand and accept that the Hon. Ms Bonaros put the position to this chamber that, from her viewpoint, she saw her role in a particular way in separating her own individual or moral views from the views that she would adopt as a legislator. That is perfectly acceptable and defensible—I support her right to do so.

But can I say at the outset that I absolutely support the right of members we have had in the past, and if there are members here in this chamber today, whose judgements they bring to bear on this particular legislation or others that are governed almost completely by their personal moral code or their belief system. I defend to the end their right to interpret their role in this chamber as a legislator in that particular way, equally as the Hon. Ms Bonaros is entitled to view the appropriateness of her role in terms of how she would vote on a piece of legislation.

It is absolutely the prerogative of an individual member to make his or her individual decision as to what individual influences they bring to bear on the decisions that they take. What I have observed over the last 200 years of my being in the parliament is an increasing view that in some way it is wrong or unacceptable for someone to make a judgement on a difficult issue like this in a particular way. It is not wrong. A member is entitled to make that particular judgement if they so wish. As I said, I will defend to the end the right of the Hon. Ms Bonaros and others to address their position in the way that they see fit, and they should be entitled to do so.

But no-one should in any way dismiss a member who makes a judgement in a different way, as we saw with Family First in the past where certain members addressed a view generally in accordance with the belief systems and the values of the churches or the particular views that they brought in representing their community to this particular chamber. Equally, there might be some who are all over the place in relation to issues, as I would view myself, having voted for poker machines in this place, having voting for a casino, having voted for almost every piece of gambling legislation, contrary to the views of my particular church and the views they would have put to me.

But on issues like prostitution, I proudly say—and the Hon. Mr Parnell referred to the first debates—that in 1987 I was a participant in that particular debate, as a relatively young fellow in those days with no grey hair. He referred to The Advertiser editorial of the day when pejorative phrases were used—and they continue to be used for those who oppose legislation—such as 'emotive', 'emotional', 'prejudiced', 'religious-based' and 'electoral'.

A number of pejorative phrases that were used to dismiss opponents of the legislation back in the 1980s have continued to be used against people who, for whatever reason, have opposed these particular issues all the way from the 1980s through to the present day. I do not think they could or should be dismissed in that particular way.

A member and members are entitled to make judgements in accordance with their value systems. I am a product of my upbringing. I am a product of my belief and my values in terms of my church and my faith, and I am a product of the environment that I live in. Each of them influences me in different ways. On particular issues, whether it be voluntary euthanasia or whether it be gambling or whether it be, in this case, prostitution law reform, I am entitled, as an individual legislator to make my own judgements in the way that I see fit and then to be judged accordingly by the electorate when I go to an election.

That is the way we should be adopting, in my view. There is no right way and there is no wrong way. Members are entitled to come to a decision, as they should, and they should not be criticised, as I said, with the use of pejorative and dismissive phrases such as 'religious-based', 'moral-based', 'prejudiced', 'emotional'—those sorts of phrases that are used to describe people of adopted views that might be against the prevailing majority opinion at a particular point in time.

As we address the detail of the legislation, I still have the view that the proponents of the legislation view what they see as the benefits through rose-coloured glasses or perhaps scarlet-coloured glasses. They believe that the passage of this legislation will solve many, if not all, of the problems that members have addressed through their contributions. That is not a view that I share. It is not a view I have shared over the years, and it is not a view I share in relation to this particular legislation as well.

As a number of members have indicated, I acknowledge that the prospects are that the legislation, even though I will not be supporting it at the second reading or indeed at the third reading, will go through a complex and complicated committee stage debate at some stage. The substance of my contribution today in terms of the second reading will be to identify, I think, some of the questions that need to be answered by the proponents of the legislation and, ultimately, some of the issues that still need to be resolved.

As I said, I again congratulate some of the members for their contributions. The issues that the Hon. Ms Bourke raised in relation to the comparison between the owners and operators of brothels under this legislation and the local baker, I think, are important industrial-related issues that will need to be addressed. As the honourable member continued to make comparisons with the local baker, the vision of the young 14 year old who serves me a Boston bun at the Bakers Delight on Sunday mornings, after this legislation has passed, moving across to the 'Prostitutes Delight', happily working as a 14 year old on the front counter, fills me with horror.

The notion, as the Hon. Emily Bourke has highlighted, that if the legislation was to be passed, the regulation as it relates to those who can work within a brothel is exactly the same as the provisions for those who can work at the local bakery is something that I think the supporters of the legislation need to address. The whole notion that there is nothing wrong with a 14 or a 15 year old in year 10 or 11 at high school who, as I said, has been working happily at the local Bakers Delight on a Saturday or Sunday morning, equally being able to work in the local brothel, doing reception work or social media work or indeed any other sort of admin work on a Saturday or Sunday morning, getting extra pocket money whilst they go through their early secondary studies, fills me with horror. It is certainly something that I cannot and do not support.

The issue in relation to the claims that decriminalising prostitution will see greater controls in relation to prostitution in South Australia, or indeed in any of the jurisdictions where it has occurred, I think defies the evidence that has been produced. A number of members—the Hon. Mr Hood and others—have referred to examples in other parts of the world with contrary evidence.

I highlighted, when we last debated this in 2015, and I do so again, a paper that was written by our Parliamentary Library and given to all members in one of the earlier debates on the regulation of prostitution, entitled 'Different approaches to prostitution regulation: a comparative analysis'. Page 7 of that parliamentary research paper states:

However, despite the decriminalisation of the sex industry in NSW, there is still a rampant illegal industry. For example, in 2007, the Adult Business Association NSW reported that there were 775 illegal brothels operating in New South Wales. This revelation prompted a change in the law to allow local courts 'to order that gas and water supplies be cut off' so that councils could shut down these illegal brothels. The continued existence of an unregulated industry ensures that crime and corruption is still present in the sex industry in NSW.

I think the Hon. Mr Hood and a number of other members have referred to other pieces of evidence from jurisdictions around the world where the claims that either decriminalising in what is being proposed here or legalising, as was proposed in Victoria and some other jurisdictions, would in some way reduce the extent and the breadth of illegal prostitution and illegal brothels is indeed contrary to the evidence.

If we see the sad day where this occurs in South Australia, I am sure for those in this chamber who are young enough to monitor this particular debate over the passage of five or 10 years, I will be very surprised if we do not see similar evidence being brought to bear by yourselves as older legislators or indeed the next generation of legislators come through and look back perhaps at the decision that this parliament may well be on the verge of taking.

The next issue I want to address is the issue of spent convictions legislation because this proposed legislation makes a number of very important and far-reaching changes in relation to spent convictions legislation. The bill provides for the spending of convictions under the Spent Convictions Act 2009. It will mean that convictions will not appear when an employer or potential employer conducts a police check in relation to a person. Notably, a person's convictions would also be spent for the assessment of the fitness of persons to take up employment that falls within special categories under the act: (1) work caring for vulnerable people; (2) working with children; and (3) activities that require a character test.

The question that proponents in support of the legislation will have to address is: is it desirable for the Department for Education or the Department for Child Protection, for example, to be denied access to information about a person's convictions when considering whether or not to employ a person? Could an employer not validly argue that, even if the offence has now been repealed, a person's criminal conviction remains relevant to the question of whether to employ that person because it shows that that person contravened the law at the time?

What we are being asked to accept is that a brothel owner who has lived off the profits of prostitution for 30 years can have all of his, generally, or her—we have had some prominent madams in recent times—convictions spent, and could happily go off and get a job working in a childcare centre, happily go off and get a job working with vulnerable children or vulnerable young people, or could happily go off and get a job in education working in a school, or in a sporting organisation or a youth group. I think that the community, if and when that sort of detail is outlined to them, would not accept that as a reasonable response from the parliament.

The attention that this parliament has rightly adopted to child protection in recent years has been elevated many thousands of per cent from the time when I first entered the parliament 150 years ago. Child protection—because of royal commissions, because of court cases, because of community pressure—has been elevated in its importance in the community.

At this time, proponents of this legislation say, 'Well, too bad. A madam, a pimp or a brothel owner who has lived for 30 or 40 years off the profits of prostitution can now happily go off and work with children in a childcare centre, or look after children in a residential home, or teach or assist in a particular school. It is an acceptable premise for legislation. Because it comes in the name of prostitution law reform, it is an acceptable course of action.' I do not think that the community, when that is explained to them, would accept that as a premise of reasonable legislation.

The problem with this legislation at the moment is that, in my humble view, too many people get caught up in the vibe of the thing. The prevailing public opinion is that prostitution law reform is a good thing. Someone quoted an ABC opinion poll or whatever it was that provided support for prostitution law reform or whatever the wording of the particular survey was. It is not the generality of what is being talked about: it is getting down to the specifics of what is being proposed.

When the specifics are outlined, I think that many people would be appalled at the prospect of some of the details that this parliament is being asked to contemplate. That area of spent convictions, working with children and working with vulnerable people is an issue that has not been addressed. I raised the issues when we last debated this three years ago. They were obviously considered and rejected at the time. The legislation continues to be promoted in exactly the same way without addressing those particular issues.

Related to that are the proposed amendments to section 85T of the Equal Opportunity Act, which will raise important issues that were canvassed in the recent federal election and similar issues in relation to this. The parliament is being asked to consider in this legislation amendments to section 85T of the Equal Opportunity Act 1984 that will mean that an employer or potential employer cannot discriminate against a person on the ground of that person being or having been a sex worker. This is not a protection that is afforded to other vocations or professions or to other persons convicted of criminal offences.

For example, if a religious institution or a religious school did not want to employ an individual based on the fact that they are or were a prostitute or had lived off the proceedings of prostitution because it is not in line with the beliefs of that particular religious organisation, this bill will remove that as a basis not to employ or engage that particular person. As I said, this has been a vexed issue in recent times in the federal parliament. It has also been an issue over the years in this parliament, that is, whether or not the parliament will acknowledge the validly held views of religious institutions, religious schools and others in relation to certain issues.

The issue is in relation to whether a religious school should be able to say no to a pimp, a madam or a brothel owner who has lived off the earnings of prostitutes for 30 or 40 years being employed in their particular school. Should a religious school be entitled to make an employment decision on that basis or not? I say they are entitled to do so, and I think many in the community would accept that. I accept the fact, however, that not everyone would, that there would be strongly differing views on that, but during the committee stage of this debate those issues would at least be argued and debated and voted on, not just in this chamber but, ultimately, in the House of Assembly.

In speaking today, I am not speaking just to members of the Legislative Council; I am going to speak to each and every one of those House of Assembly members because they will need to be answerable to their individual constituents, their 20,000 or 25,000 electors or whatever the number happens to be, in terms of these decisions. It is going to be an issue for those members and they will be judged, together with their overall performance, in relation to this important issue as well as many other issues.

I want to turn to the issue of planning and location, an issue a number of members have raised. With great respect to the resident planning expert in the chamber, the Hon. Mr Parnell—who I thought was very dismissive, in a planning sense; there was really no issue in relation to this, it was all hunky-dory, it was all going to be handled under existing provisions—a man who has turned over the entrails of planning legislation inside out in his long career in this Legislative Council, I could not believe what I heard from the honourable member in relation to this issue.

You could drive a B-double truck through the provisions in this legislation in relation to planning. If the legislation passes, there is nothing that prevents a brothel being opened next door to a childcare centre—

The Hon. M.C. Parnell: The planning laws do that, not this law.

The Hon. R.I. LUCAS: Let's talk about that. You are always complaining about the planning laws and the lack of controls of planning laws, but you have great faith in them now. There is nothing that would prevent a location next to a church, as the Hon. Mr Ngo indicated, or a childcare centre, a school, a mosque, any variety of options—or, indeed, next to each and every one of our houses.

The Hon. Ms Bonaros raised the point that if you go down many streets—and she evidently recognises them; good luck to her, I cannot recognise them but she obviously has a greater nose for these sorts of things than I have, and I acknowledge that she is accurate—there are many brothels in suburban streets, or wherever it might happen to be. Supposedly, there was a brothel on a major street nearby to mine where a former judge, I think, was caught on occasions, but I still do not know where it is.

Putting that to one side, the difference with what we are going to have under this new regime if it is passed is that whereas at the moment they have to be discreet and cannot advertise, under the proposed legislation there is nothing that prevents them advertising their services because, as the Hon. Ms Burke said, they are no different from a bakery.

There is nothing stopping a bakery like Bakers Delight from advertising, and there is nothing that could stop a brothel, the Prostitute's Delight, from advertising its services to all and sundry in the community. A Bakers Delight and a Prostitute's Delight would be exactly the same. That is how the legislation is to be treated: it is exactly the same, as the Hon. Ms Bourke identified in her contribution, so they can advertise.

The Hon. Mr Hood, in his last contribution, highlighted a number of examples he had seen in other jurisdictions in relation to the sorts of advertising. In New South Wales, I think, he highlighted examples of billboards and other things that had been seen. There are objections in South Australia under current legislation to a billboard down in the South Road precinct. One can only imagine the sorts of advertising that clever operators of brothels could engage in over the coming years if this legislation passed in its current form.

There are no controls in relation to what can be advertised, as other members have highlighted—I think it might have been the Hon. Ms Bourke—in terms of the size of the advertising. It could be billboards or the sides of buses. What would stop your local friendly brothel owner advertising on the side of state government buses? Heaven forbid if we ever had another Labor government. They might have advertising on the sides of buses and trams, in terms of the local prostitute's delight.

The Hon. Mr Parnell and somebody else referred to the fact that councils are going to be able to crack down on this. Let me again refer to the contribution that I quoted when we last debated this, which was an article written by Marie Sansom on 3 September 2015. Crime, Health and Social Services, Law, Local was the name of the journal. The title of the article was 'Policing sex work a nightmare: New South Wales councils'. This is from New South Wales and this legislation, in part, is based on New South Wales. Let me quote from that article:

Council officers are spending a disproportionate amount of time and money busting dodgy massage parlours and responding to complaints about sex workers operating out of motels, Airbnb properties and tourist accommodation, NSW councils have told a parliamentary inquiry…

The biggest headache for metropolitan councils is dealing with massage parlours providing illegal sex services. Many councils complained that the burden of proof required to shut down a massage parlour operating illegally was too high and that cessation and closure orders were costly and time consuming to obtain.

As well, they noted that massage parlours could be established in existing premises as an exempt or complying development, without councils knowing their real business.

Hornsby Council lost a bitter year-long legal battle to shut down a massage parlour it said was operating as an illegal brothel at a March 2015 Land and Environment Court (LEC) hearing. This judgement has reinforced to councils that trying to close down these illegal establishments may not be worth the hassle.

During its investigation, Hornsby Council paid a private investigator to visit a massage parlour, which was near a primary tutorial centre and a high school, and have sex with a prostitute, but the judge was not satisfied there was enough proof the premises was being used as a brothel because the investigator only had sex with one prostitute.

No wonder Hornsby Council spent more than $100,000 to try and shut down a massage parlour and failed.

They were unsuccessful. It continues:

Willoughby City Council on Sydney's north shore has served 41 Brothel Closure Orders on 34 separate premises since May 2009 and fought five LEC (Land Environment Court) cases. The council estimated that each LEC case took around six months to investigate and cost $20,000 in legal expenses.

The Hon. Mr Ngo has referred to views that councils have put to him in relation to, in essence, what this legislation is doing and whether it is leaving it to them. The Hon. Mr Parnell said, 'Okay, planning laws—the councils can handle it.' Other members have said that councils have powers. A number of other members have said that councils have powers, so they can do this and they can do that.

New South Wales jurisdictions are finding it difficult enough trying to close down illegal ones. If something is actually legal, you can imagine how difficult it is going to be to argue with legal brothel owners and their well-paid lawyers with this legislation as it is currently drafted. As the Hon. Ms Bourke says, it is no different to a baker. How do you justify that, if you allow Baker's Delight to be next door to a school, prostitute's delight cannot be next door to a school as well? It is to be treated in exactly the same way: a legal service that is being provided. There are no criminal sanctions in relation to it. What is the device that councils can use under our planning laws?

Under the former government, there was greater flexibility given to complying developments and a variety of other things in relation to, in essence, removing red tape, in terms of planning law in this state, and this parliament ultimately accepted those particular changes. I will not go over the issues of advertising again, as I do not have much more time. I just want to return, as the minister responsible for workers compensation and safe work, and raise some of the issues that I think, if the legislation is to be passed, members are going to have to address in relation to workers compensation and work health and safety laws.

Under the proposed legislation, sex workers will be deemed to be workers; that is, eligible for benefits under the Return to Work Act 2014. The effect of the proposed amendments to the act, I am advised, will mean that sex work is of a prescribed class and therefore defined as work done by a worker under a contract of service.

This, in turn, will mean that sex workers will be included in the definition of a worker under the Return to Work Act and be eligible to receive benefits under the Return to Work Act. Currently, certain types of work of a prescribed class, for the purposes of the definition of contract of service in the act, include, for example, types of building work and cleaning work. I refer members to regulation 5 of the Return to Work Regulations 2015.

I do not proffer the fact that I have the answers to this. I think, ultimately, the proponents will need to think through what it is they actually want to see in relation to this. Ultimately, if the legislation passes, I think the government then has to address whether or not there are issues that will need to be addressed in terms of workers compensation legislation.

I think some of the questions that will need to be considered, at least when making a claim, include: will the sex worker be required to prove that any injury was sustained in connection with their employment? Would the sex worker be required to provide evidence of a verbal or written contract of employment? How would the sex worker prove their average weekly earnings in the absence of documentation? It may well be proposed that there be that documentation. If there was the absence of documentation, how would a sex worker prove that they were an employee as opposed to an independent contractor?

I think the Hon. Ms Scriven raised the issue of some evidence she had gathered where, in some cases, individuals who worked in the industry believed they were referred to as independent contractors but, on other occasions, were referred to as employees, depending on what suited the particular brothel owner at the time. The answer is probably that it is likely to be on a case-by-case basis, looking at such factors as whether or not the sex worker is able to delegate her duties to someone else or not, which raises an interesting question in terms of this industry.

Would the sex worker be required to provide witnesses or give evidence to support their claim? Workers compensation claims in terms of injuries in the workplace more often than not require evidence. Where there is evidence in relation to a claim for an injury in the workplace, that obviously adds to the substance of a particular claim. Given the discreet nature of their work, it is perhaps going to be problematic as to whether an individual sex worker in the industry is going to be able to provide witnesses, or indeed witnesses who are prepared to give evidence, to support the fact that their back-related injury, for example, was a result of a workplace injury.

If the sex worker is working in a public place, how could they prove that the injury was work related? Presumably, an injury would also include sexually transmitted disease that could be contracted. In that case, how could the sex worker prove that the injury, the sexually transmitted disease, was contracted in relation to their particular employment? If the legislation passes, the issue is how ReturnToWorkSA manages those particular claims in terms of who proves or disproves what in relation to a claim of a sexually transmitted disease contracted in a place of work.

Are the whole person impairment guidelines—a number of members will be very familiar with those under ReturnToWorkSA—and assessors equipped to make assessments about sexually transmitted diseases within the workplace? There are literally dozens of other questions that, if this legislation was to pass, potentially the parliament, but certainly the government of the day and ReturnToWorkSA will have to address and I guess ultimately the Employment Tribunal and other various jurisdictions will have to determine whether or not various claims which are made are ostensibly in relation to a claim for a workplace injury under the return to work legislation.

Finally, in relation industrial-related issues, there is the issue of SafeWork SA and the work health and safety legislation. I think there are important issues in relation to the legislation as to who will be designated as the person conducting the business or undertaking, that is the PCBU, under the term for the purposes of the Work Health and Safety Act. It comes back to the question the Hon. Ms Scriven has raised in relation to whether they are independent contractors or employees, what the nature of their employment is and who the PCBU is and therefore who has the responsibilities under the work health and safety legislation in terms of work health and safety law.

Is it proposed that SafeWork SA inspectors would inspect the premises to ensure a safe workplace is being maintained? I am assuming it would be the same as other worksites. They would have the same. Do work health and safety standards need to be developed in order to promote safe sexual conduct? One would imagine that would probably have to be the case. There are a range of issues in relation to in particular the issue of who is the person conducting the business or undertaking, the PCBU, which is I think the principal issue that will ultimately need to be determined in relation to the operations of this particular business, should ultimately it be sanctioned by the parliament.

With that, as I said, people have indicated publicly that this is likely to get through to the committee stage of the debate. I think, as I said, during the committee stage a number of these issues are going to have to be addressed. I think, as the Hon. Ms Franks has asked of all of us, it would assist her if these questions were actually outlined in the second reading so that she and her advisers are in a position to take advice, because I acknowledge that it is more difficult for an individual member to manage a bill through the committee stage of the parliament. I respect and understand the difficulty of that, and that is why I have spent more time in the second reading outlining the questions for the Hon. Ms Franks, as she has asked us to do. We have highlighted the issues and the questions that I think will need to be addressed during the second reading.

I conclude by saying, again, as I have done on every previous occasion, and it seems to have been raised every three or four years in my time, since whenever it was—1987, I think the Hon. Mr Parnell indicated. I opposed it then, I have opposed it for the last 20 or 30 years, and I will oppose it again, I hope for the last time, in 2019.