Parliament: Speeches on Bills

Statutes Amendment (Decriminalisation of Sex Work) Bill

Committee Stage 

In committee.

The Hon. K.L. VINCENT: Given that I have already made a second reading contribution on this bill, I do not intend to be very long, as other members have not been long either. It will come as no surprise to anyone in this chamber that I personally strongly support the bill. My stance on sex work and sex work decriminalisation in particular has been well known very publicly for a number of years, and I do not believe it will change anytime soon.

There were a number of points that I wanted to make—firstly, that I will not be supporting any of the Hon. Mr Ngo’s amendments. Frankly, I am incredulous that Mr Ngo was on the committee for 18 months; he had every opportunity to deal with these issues. In fact, all these issues that are covered in these amendments, whether street work can be accepted, where premises for sex work can be situated, are topics covered by the select committee, so it is not as though he has not had opportunity.

I am aware that from time to time we do have to put up amendments at the 11th hour, so to speak, but often that is because there has been a drafting error or some kind of oversight or some last minute information has come to light. I am not begrudging the fact that we occasionally have last minute amendments come to this place, but when it is on issues that we have been debating for 40‑odd years in this parliament, and for the past 18 months actively in the committee, that the Hon. Mr Ngo was on, I find it hard to believe there is any other reason for these amendments to have come forward at 2.30 on the afternoon this bill is to be debated than their being a stalling tactic. If Mr Ngo wants to try to convince me otherwise, I would be very happy for that, but I am otherwise not convinced. So, I do not support the amendments.

Another comment that I wanted to make—and again, I do not intend to reiterate every comment I have ever made on this issue—follows another member’s comment about this not being a priority issue or this not being in the interests of the majority of the South Australian parliament. Well, there are a few things I would like to say on that particular comment. Firstly, if this was not an issue of great importance to the general population, then why would global leading organisations like the World Health Organisation on a health basis and Amnesty International on a human rights basis both have policies clearly supporting the decriminalisation of sex work?

I just want to read very briefly from the World Health Organisation website in relation to its stance on sex work, just to give one example:

Modelling studies indicate that decriminalising sex work could lead to a 46% reduction in new HIV infections in sex workers over 10 years; eliminating sexual violence against sex workers could lead to a 20% reduction in…HIV infections.

Well, Mr President, if a 46 per cent reduction in new HIV transmissions is not beneficial to the general population, I do not know what is.

The second point I would like to make is that in this place, particularly in the upper house, where our electorate is the entire state of South Australia, yes, we are here to do the best we can on all the issues we debate, but our job is not just to do the best for the majority; it is to do the best we can for all South Australians. I would argue that particularly those minority groups, like people with disabilities, like same-sex attracted people and, yes, like sex workers, are the people who need us most, because they are the people who are marginalised, who are forgotten and who are disadvantaged by current laws.

So, if we cannot protect the people who need us most, I would strongly argue we are not doing our job at all. I remind members of this chamber that we are here to represent all South Australians to the best of our abilities, including sex workers, and in order to do that we need to support this bill.

The Hon. J.E. HANSON: I have been listening to the debate here. I will end the suspense: I am going to support the bill. In relation to the debate around needing more time, I am pretty new; I knew this was an issue. I inquired when I got into this place about having a coffee and a sit-down with some of the major proponents of this bill not only in this place but elsewhere. I spoke with them about it; I have spoken with some of them again recently. I also read the report. I will refer to the amendments—the raft, which is five pages, although I have a law degree, so maybe it is easier. I wish I had five pages to read every day. I find them remarkably similar to the suggestions put by Mr Ngo that are in the dissenting portion that he wrote in the report. Sure, they are not as well put and they have not got the definitions and everything, but the meaning is exactly the same, so when I saw these amendments, I was not surprised in the least.

I will concede that I actually have a little bit of time for some of those, but I think as well that there have been people who produced this report, which was a summary of a much larger body of evidence that I am not privy to, who produced some compelling, if not decisive, points in the alternative, and I find those compelling enough to convince me that the amendments are not warranted and that we can pass the original bill.

In terms of what compels me to do it, I have to say that I have a lot of time for one component of this argument, which is the occupational health and safety and rights at work aspect. Having a trade union background and the belief that no workplace is too small and that every place where work is performed is a workplace, I tend to find that that is a compelling reason to give people more rights. What I do not find as compelling about it is that I actually respect people of significant faith. I would have to be the worst Catholic in the world, but I was raised as one. I do not like downplaying the views of people in that regard.

However, I find that we need to place legislation on foot. The alternative legislation which would be preferred, and that makes any reasonable sense to change from the current disastrous position we are in, is the model commonly referred to as the Nordic model. I have read up on it and I do not find that model compelling. I am quite happy to support this bill, despite having some reservations, but I do support it. I commend those who have spent quite a bit of time producing what I found was an excellent report and quite a bit of time in this place and the other place fighting what I imagine was a very difficult fight.

The Hon. J.M.A. LENSINK: In relation to the process, I thank honourable members for their comments. In relation to that, I will not go over that ground again except to say that I think we have had a thorough process and we are very grateful for the motion of the Hon. Stephen Wade to refer this to a committee because I think it has given us all reassurance in relation to the particular model.

I do not think any of us are thrilled about the fact that these amendments arrived at the time that they did, but I have had a good look at them. I think they are pretty straightforward and I do not see that there would be any particular need to hold up the bill because the first four essentially reassert clauses which are in existing legislation. The other four are all pretty straightforward as well. I guarantee that I will assist the committee in explaining those. I will be opposing all of those particular amendments. I think the committee considered all of these issues and on balance the members decided not to pursue any amendments to them.

While I am on my feet, I would also like to table a letter from the Law Society of South Australia which was received today. I think it is particularly significant because it does address the letter that was received from the police commissioner.

The Hon. R.I. LUCAS: I did not speak at the second reading of this particular bill. I looked at my notes and I had prepared to speak, but I think it was being moved to go to a select committee and I thought that was extremely wise and supported that and thought I would save aggravating any of my colleagues in the upper house by putting my views on this particular issue prior to it going to the select committee.

In addressing comments to clause 1, I do want to say that I am disappointed in the process that we as a chamber adopt generally these days. I think in part I agree with some of the comments the Hon. Stephen Wade referred to. I think he was requoting statements he had made in an earlier stage in relation to conscience vote issues.

I have had the immense good fortune of watching many years of conscience vote debates. In the early days of conscience vote debates, we were significantly assisted by the intellectual prowess of people like the Hon. Chris Sumner from the Labor side of politics and the Hon. Trevor Griffin from the Liberal side of politics, both fine lawyers in their own right. They were generally fine lawyers with opposing arguments, putting the Labor side or the Liberal side of particular conscience vote arguments, or the conservative side argument and the less conservative side argument on a conscience vote issue. That assisted many of the rest of us to clarify issues.

If I can reflect on the debates that we went through, there was immense time and attention to quite detailed amendments during the committee stage of the debate. I make this reflection not just in relation to this bill but a number of other conscience vote bills that we have had. If you compare the extent of the detailed work that this chamber does in the committee stage now with the detailed work that would have been done back in the eighties, and certainly the nineties, in relation to a lot of the bills, conscience vote bills in particular, it is chalk and cheese; there is little comparison at all.

I think that is a shame, because these bills are important. They are generally on very controversial issues. Ultimately, everyone, I think, so far that I have listened to, and clearly there is a majority, is going to support this particular bill, at least in this chamber, to pass it to another place. No-one is saying that it is either a perfect bill or close to a perfect bill, it is just, ‘Well, we think it is better than what exists at the moment.’ For that reason, a number of people have locked themselves into position to say, ‘Well, we are not going to support any of the amendments from the Hon. Mr Ngo.’

I share the criticism of those who have argued that we should have had alternatives, whether it be the Hon. Mr Ngo’s amendments. We should have seen those earlier in the piece, as the Hon. Mr Wade highlighted. He did the raise the issue that, if there was to be a proposition in relation to an alternative model, that should have been put earlier. I accept those particular points of view that have been put.

If anyone wants to reflect and look back on the debates on conscience vote issues in the past and the ones that we have now, I think we are not well served by the process that we go through. Whether that is a criticism of each of us as individuals or us collectively as a chamber, ultimately that is a judgement call for members to make if they are even interested in the issue and the comparison that I am making.

I would invite people to go back to some of the earlier debates to look at the work that was done during the committee stage, the quite detailed committee stage. We seem, these days, to lock ourselves into positions where the majority one way or another prevails through the committee stage, and there is scant consideration given to what might even be immensely reasonable amendments that are being moved by people from the other side of the argument.

The other point I would make, which I am disappointed with too—it happened briefly in relation to the Hon. Mr Brokenshire’s comments earlier, and it certainly never happened in the early days—is that a member putting a less popular point of view, which might be the more conservative point of view, is inevitably one, these days, who seems to be heckled by other members of the chamber. I think that is not only disappointing but unfortunate.

These are difficult issues. Many of us have differing points of view, and it seems unreasonable that an individual like the Hon. Mr Brokenshire, who is quite entitled to put a point of view on behalf of his constituents, and indeed his own personal point of view, is the one who is singled out for heckling from other members of the chamber who happen to disagree with the point of view that he has put.

We have seen this in recent years in relation to debates on surrogacy and voluntary euthanasia. We had one unfortunate circumstance where a vote was rushed through during the dinner break, when someone was not able to get someone to call, a second voice, to divide on a particular issue. We as a chamber ought to look at the processes we use in relation to these difficult matters on conscience issues.

Therefore, I will address some of the amendments that the Hon. Mr Ngo has put. I will obviously be asking questions, because I have only had, as have other members, a very limited opportunity to look at them. Those members who were on the committee may or may not have explored these issues already, and will be in a better position perhaps to inform members as to the practical impact.

What I will say is that they do address some of the issues that I have addressed previously on this issue. In reading the select committee report (and I know that a lot of other evidence must have been taken), on a range of these issues there is not much by way of argument, either for or against some of the issues the Hon. Mr Ngo is raising in relation to planning issues, advertising issues, streetwalking issues and a variety of other things.

The select committee report very adequately addresses a whole range of important issues, I acknowledge that: the differences between legalisation and criminalisation, the impacts on health, etc., but on a range of these other issues there is not a lot in terms of canvassing the arguments as to why we should go down a particular path or not, and if the committee did consider it as the reasons why they considered the amendments of the Hon. Mr Ngo (or that sort of amendment), and why the committee believed in the end they should reject it.

The other point I make, before addressing some specific issues, is that, if this bill is to go to the lower house, as it might, I look forward to what I am sure will be not only a very interesting debate in the House of Assembly but a very interesting period leading up to the next state election.

I have referred in the past to one of the more adept grassroots politicians in this parliament still, now the Speaker, Mr Atkinson—Speaker Atkinson—and I referred to an endeavour back in the 1990s, when again a Liberal member of the Legislative Council, Dr Bernice Pfitzner, moved a bill in relation to prostitution law reform. Speaker Atkinson (or Mr Atkinson as he was then) very cleverly, from his viewpoint I am sure he saw it—and minister Malinauskas might be interested in this—circulated leaflets attacking the Liberal Party and Dr Bernice Pfitzner through large chunks of the suburbs of the inner west, with big bold brassy headlines saying, in effect, that the Liberal Party wants to have brothels either next door to your house or next door to your family home or in the western suburbs where you live, but it does not want to have brothels in the other parts of Adelaide, or variations of that particular theme.

So, Speaker Atkinson has put down the template for campaigning against those who support prostitution law reform in the western suburbs, or wherever else it might happen to be, and as lower house members wrestle with their consciences, potentially, in the coming months leading up to the March 2018 state election, I will endeavour to dig up from my archives enough copies of Speaker Atkinson’s materials to circulate to members, just to concentrate their attention on the matter at hand.

The last time I spoke at great length on this particular issue, believe it or not, was back during the debates the Hon. Mr Brokenshire spoke of, which were on 9 November 2000. Having reread my contribution, whilst your views over a long period of time in parliament sometimes evolve and change, I have to say that, in this particular area, they have not changed much at all. I do not therefore intend to repeat all that I put on the record then. As I said, for those who are interested in my views on this particular area, they are on the record in the Hansard of 9 November 2000. Not that I realised it at the time, but I did say:

As I have said, I believe very strongly that the law we have is not ideal and does require change and, whilst I do not support the change we have before us, I indicate—as other members have indicated—that the proposed change in the law which treats customers, who are generally male, in the same fashion as service providers, who are generally female, is a change I would be prepared to contemplate.

In those days, they did not refer to it as the Nordic model, but I guess the trend these days, as I read the select committee’s evidence, is that is the Nordic model. I think two members of the select committee in the dissenting report made recommendations based on the evidence from the Swedish lawyers and others who presented evidence to the committee about the effectiveness of that particular model. My views in the year 2000 contained a willingness to be prepared to consider that. Again, I would be prepared to consider that at this particular time.

I am significantly influenced by the views that the Commissioner of Police has put to the committee. He was evidently asked by the committee, in a letter of 10 April, for further information in relation to claims that had been made about police activity. He was requested for responses by the committee, and he responded on 23 May 2017. The Hon. Mr Hood has referred to the last two paragraphs of that particular opinion or response to the committee, which I think is overwhelmingly persuasive for those who have any concerns at all about this particular bill and the reforms that are being proposed.

Here we have the Commissioner of Police saying that this bill will ‘significantly diminish legislative oversight of the sex work industry raising concerns that serious and organised crime elements would infiltrate and flourish in the industry with a limited risk of detection’. That is the Commissioner of Police saying that he opposes, they oppose, this bill because it raises concerns that serious and organised crime elements would infiltrate and flourish in the industry with limited risk of detection. I think that is a very powerful piece of evidence to not only the select committee but also to this parliament, which needs to be considered by members as they consider the legislation.

He goes on to say that the regulatory control, for those members of the parliament who support this, would be far less than that imposed on many other small businesses—for example, second-hand dealers, licensed premises relevant to the Liquor Licensing Act and the tattoo industry. What he is saying is we as a parliament have provided oversight of people who work in the tattoo industry, liquor licensing and second-hand dealers. We all know the restrictions that we have placed in terms of regulation of those particular industries, but we are prepared to decriminalise the prostitution industry and have even less regulatory control and oversight for that industry than someone who wants to run a tattoo parlour, a liquor licensing establishment or a second-hand dealer’s establishment.

The logic of that just escapes me. The logic of that I think is overwhelming from the Commissioner of Police. Even those in this parliament who support the decriminalised model ought to consider the views that the Commissioner of Police is putting in terms of having some regulatory oversight rather than just washing our collective hands of any regulatory oversight, essentially, along the lines that the Commissioner of Police is recommending. As I said, I will not read all of the rest of the Commissioner of Police’s response to the select committee invitation for further comment, but I think it is overwhelming, and I think members, certainly in the House of Assembly if the bill comes to them, need to address themselves particularly to the concerns that the Commissioner of Police has raised.

The Hon. Mr Hood also raised the concerns of individual councils. I will not reread those but I am particularly interested in the City of Tea Tree Gully’s quite overwhelming list of concerns that it raised. I know there will be concerns in some of those suburbs out in the north-east. The Hon. Mr Hood referred to the evidence from the City of Marion. In a number of those suburbs in the inner south-west or the south-west area covered by the City of Marion, the concerns being expressed by the city councils are that they are in essence going to be left with having to manage something that they are currently simply incapable of managing. The concern of the City of Tea Tree Gully is that they are going to become the regulator of brothels and street prostitution.

In relation to street workers in the suburbs of the north-east, in the suburbs in and around Marion and in the south-western suburbs, those city councils are saying, ‘We’re the ones now who are going to have to be responsible for managing them. We’re the ones who are going to have to be responsible for managing the regulation of the brothels.’ There are planning issues in having brothels in residential streets or in having a brothel, as the Hon. Mr Ngo has pointed out, next door to your local church, your local mosque or your local childcare centre.

Clearly, if the parliament approves this bill as it is, in terms of the planning restrictions in these particular areas, it is saying quite simply, ‘Well, we don’t care. You can have a brothel next door to the childcare centre. You can have a brothel next door to the church. You can have a brothel next door to my place. You can have a brothel next door to the Hon. Mr Gazzola’s home—no-one cares.’ There is the whole notion of there being no controls in relation to advertising—the billboards and neon signs and whatever else might be legally authorised to advertise brothels throughout the north-eastern suburbs in Tea Tree Gully and those south-western suburbs in the Marion area.

I think it is going to be important to know the attitudes of some of the candidates for the election coming up in March 2018 in relation to some of these local issues. Whether they are Labor candidates or Liberal candidates, people are going to want to know: as a candidate, do you support having a brothel next door to the local school? Do you support having a brothel next door to the childcare centre? Do you support the council having to control streetwalkers down the back streets of the suburbs of the Tea Tree Gully council or the Marion council or wherever it might happen to be? As a Labor candidate or a Liberal candidate, do you support advertising hoardings or neon signs advertising brothels that I will have to see each and every morning as I drive my two kids to the local primary school?

They are the sorts of household issues that people are concerned about and will want addressed. Candidates are going to be asked the difficult questions, and they ought to be asked the difficult questions. It is much easier for us in the Legislative Council because we do not have the immediate constituencies that lower house members do. Our offices are here in Parliament House: they are not out in the suburbs of the Tea Tree Gully council or the Marion council. It is going to be the lower house members and the lower house candidates who should have these questions put to them as to whether or not they support these sorts of changes.

Speaker Atkinson is going to be quite happy to use the techniques that he used in the past to attack former Liberal colleague Dr Bernice Pfitzner, and it was not just her. The whole Liberal Party was being attacked because Dr Bernice Pfitzner, as an individual Liberal expressing a view on conscience, pushed this particular issue. I am sure that Speaker Atkinson, as he has done in the past, is going to be looking to use the votes of various people, and of course there might be others who follow his lead or his template in relation to this issue.

I will not be supporting the bill. I will be considering and listening to the debate on some of the amendments from the Hon. Mr Ngo; I do not understand all the practical implications and detail yet, so I will be asking questions of the Hon. Mr Ngo, and indeed anybody else who might be able to throw light on the practical implications of some of the amendments. I will err on the side of trying to get some amendments into the legislation so that it can be considered by another place, and if that is the case perhaps it can then be further improved in another place.

So as I said, I will err on the side of having things included in there to keep the debate alive as opposed to opposing them. Clearly there is a number of people who have locked themselves into a position that says, ‘We’re not going to support any amendment that the Hon. Mr Ngo is going to move.’ I hope there will be at least a number of people who will be prepared to give reasonable consideration to the Hon. Mr Ngo’s amendments, because I think they endeavour to address some of the issues that concern local people, local residents, local families in those suburbs of the Tea Tree Gully council and the Marion council that have already been expressed by way of the evidence to the select committee.

The Hon. T.T. NGO: I will quickly respond to a few of the questions raised during this debate. The reason I submitted my amendments only today is that I did not know the bill was going to go to committee this week. We were told only recently by email from the Hon. Ms Lensink that it was going to go into committee, and my office has been working with parliamentary counsel back and forth this week to try to put in the amendments the way they will work with law. The things I want to do may sound easy, but when parliamentary counsel had to draft them into law it was harder than it looked.

On another matter, the Hon. Ms Vincent said that I was on the committee for all that time so why did I not put these amendments in the committee. I am not sure whether she has had time to read the committee report that was tabled a few months ago, but I did put in a dissenting report and I raised these very matters. Other honourable members can back me up in that I regularly raised these issues during committee meetings, and when witnesses came in to give evidence I regularly raised these issues. I have my report here which I put in with the committee’s report; I do not want to read it out, but I did raise these issues in that report. The Hon. Ms Vincent asked why I did not put it in, and this clarifies that I did. I cannot do any more than that, putting it in the report.

Regarding these amendments, I needed to go through parliamentary counsel to make these changes. I cannot just put in the changes that I wanted in the report and make it happen. I just wanted to clarify that, and correct the Hon. Ms Vincent’s misunderstanding; the honourable member believed I did not do it, but I did.

The Hon. R.L. BROKENSHIRE: Before we get on to the actual serious deliberations and the issues around amendments being tabled today, just a few hours ago—as the Hon. Stephen Wade said, at 2.30 this afternoon, just a few hours ago—I want to pick up on one point the Hon. Stephen Wade made.

I respect the fact that the Hon. Stephen Wade did say that there should be some adjudication on this particular bill put up by the Hon. Michelle Lensink through a select committee. I respect that and that part of it is correct, but I just want to put on the record, so that it is there for perpetuity, that if you have a look at the terms of reference of that particular select committee, the focus of those terms of reference were primarily—I am not saying in entirety, but primarily—on the bill put up by the Hon. Michelle Lensink. In fact at times, when I was on that committee, we were reminded of the fact by the chairperson or the acting chairperson that we had to focus on the terms of reference. I want to put that on the public record, because this was not a broad-based select committee that could look at everything in entirety. It was not that way. Read the terms of reference.

Secondly, I will put on the public record that I did not sit there comfortably, like I do on a lot of select committees, feeling that it was a pretty broad cross-section of views. In fact in one instance, when two lawyers came over from Sweden (from memory they were from Sweden, they were certainly from that part of Europe) to give evidence, I had to protect those witnesses, frankly—it was not the Hon. Michelle Lensink who was in the chair at the time because I am very pleased to say that she had that beautiful little boy and she was having what she rightly deserved, some maternity leave, so it was an acting chair—because those two international visitors who were here in this state were, in my opinion, intimidated by the chair at the time and I actually had to protect those people.

I do not necessarily accept what the Hon. Stephen Wade is saying, but what I do accept is that the absolute majority of the members of the committee recommended supporting the Hon. Michelle Lensink’s legislation. However, it was not unanimous. From then, when the report was tabled, only two sitting weeks ago, we have not had a lot of time, with everything else, to actually come up with options like the Nordic model. I just want to put that on the public record.

It is superficial to where we are actually headed tonight, but I want to put all this stuff on the public record for the sake of history, because this will come up again. I just want to put that on the public record and we will now proceed, with your good chairmanship, sir, into the rest of the committee. As I have said to my colleagues before I, for one, still have to come to grips with and understand the plethora of amendments made by the Hon. Mr Tung Ngo, and I still believe that we need to report progress.

The Hon. S.G. WADE: I thank the Hon. Robert Brokenshire for his comments of clarification but I would like to remind him of the actual course of events. When I moved my contingent motion in 2015, there was actually another amendment put forward—which I opposed—which was, in my view, to leave open the possibility that the Nordic model could be put to the committee as an abstract idea. I explicitly opposed that because, in my view, it was unfair for the decriminalisation model to be presented as a bill and for the Nordic model to be presented as an idea.

As I have already said in my contribution earlier today, I specifically sought the advice of the Clerk at the time, and the advice I received was that even once the select committee had been established, it was within the power of this house for that same committee to consider another bill. So the fact that this committee had a limited focus is primarily the responsibility of every member of this house because no other member took the initiative that the Hon. Michelle Lensink took and presented a bill to this house.

I make it clear that in my comments on my contingent motion in 2015 I called on other members to put forward another model if they wanted to do so, and that I specifically foreshadowed that I would be open to such a bill being referred to the select committee. The select committee had only one bill.

The Hon. J.M.A. LENSINK: I would also like to address some of the insinuations of the Hon. Rob Brokenshire about the process in relation to the select committee. I said in my speech addressing the tabling of the report that I thought it was a respectful committee. We received a lot of written evidence and we also had a lot of witnesses. I reject any characterisation, in any way, that particular witnesses were intimidated or that they were not allowed to speak freely. We did have to remind some witnesses that our terms of reference were contained to the select committee before us.

I made sure, to the irritation of some other committee members, that we did not shut down any particular witnesses who wished to come in and speak to us about the Nordic model because I thought everybody should be given a fair hearing. I was going to make darn sure that that sort of criticism, if it were to be levelled, would be completely unfair, and I stand by the fact that this committee worked effectively, that it was respectful and that nobody’s views were dismissed or belittled. Some people were challenged and some deserved to be, because, quite frankly, some of the advocates of the Nordic model had not even read the bill. So I reject any implication that the committee did not conduct itself in any way that was not absolutely proper, with due diligence and in good faith.

The Hon. T.A. FRANKS: Just for the record, because the Hon. Robert Brokenshire has talked about the conduct of the committee and referred to me as the acting chair, I did indeed call to account the witnesses, who were flown in from Sweden by various groups to give us evidence, to address their evidence to the bill before us. They were also allowed to talk about the recriminalisation model, but I remind the Hon. Robert Brokenshire that he called the head of Scarlet Alliance—the sex workers’ advocacy body that is for sex workers by sex workers—a traitor to her sex. I found that offensive, and I will put on record that I pulled him into line at that point.

The Hon. K.L. VINCENT: If I could very briefly respond to some comments by the Hon. Mr Ngo, my intention was not to imply that he should have tabled these amendments 18 months ago, but that the topics of those amendments had been discussed for the previous 18 months. So, it was not as though they had not been covered. From that discussion, the vast majority of members have decided that this bill is the best model. That was the point I was making, not that he should have tabled these amendments 18 months ago.

I am aware that we have to go through a process to table our amendments and I am very thankful for that. He has followed that process but, at the end of the day, given that we have had a very comprehensive inquiry into this issue for the past 18 months, I simply do not agree with the amendments. That is my point and not that he should have tabled them any differently, except perhaps a little earlier.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. D.G.E. HOOD: The bill quite rightly, and I am sure all members would agree with me, amends the Criminal Law Consolidation Act to insert a prohibition on providing commercial sexual services to children. I do not think there is any dispute about that; it is something we can all agree on. My question to the mover is: does it prohibit children from working in a brothel, for example, in some sort of non-sexual role—an administrative role or something of that nature?

The Hon. J.M.A. LENSINK: It is my understanding that children would not be able to work in a brothel in any form.

The Hon. D.G.E. HOOD: Under what legislation would that be so?

The Hon. J.M.A. LENSINK: The Criminal Law Consolidation Act, I think. The relevant sections relating to these particular provisions are sections 65A to 68. Clause 68—Use of children in commercial sexual services, ‘A person must not employ, engage, cause or permit a child to provide, or to continue to provide, commercial sexual services’ etc. So, there are a number of provisions in relation to that that I believe would apply.

The Hon. D.G.E. HOOD: I thank the member for her answer, and I agree with her that I think the amendments are clear that children would not be able to provide sexual services. My question was about non-sexual services. Just to be clear: can they work as an administrator or a receptionist or something of that nature, for example, in a brothel?

The Hon. J.M.A. LENSINK: In the hypothetical the member may well be correct, that they may be employed in some ancillary role.

The Hon. D.G.E. HOOD: Is that the member’s intention? Is she comfortable with that?

The Hon. J.M.A. LENSINK: It is one of those matters where the issue we are dealing with is the provision of sex services. It is in relation to sex work itself. That is the matter that is before us; therefore, these are the existing provisions which are in the legislation at the moment. If the honourable member wishes to move an amendment to seek to prohibit children from working in other roles, then I would welcome his attention to that particular detail. But the existing law is the existing law.

The Hon. T.A. FRANKS: I would just ask the mover of the amendment bill: we are on section 4, which is—

Honourable members: Clause 4.

The Hon. T.A. FRANKS: Clause 4. Can I just clarify that this is:

After section 68 insert:

68AA—Provision of commercial sexual services to children

Is that the clause that we are on?

The Hon. J.M.A. LENSINK: Yes, that is correct.

The Hon. T.A. FRANKS: This clause is actually about providing sexual services. So, if a worker provides sexual services to a child, that is an offence. This is not actually about a brothel; this is not actually about the place of premises. This is about providing sexual services to a child being illegal.

The Hon. D.G.E. HOOD: I fully understand that. My question was about the capacity. I believe this is the right clause to ask it in; if the member thinks it should be in another clause I am happy to address it there. What restrictions are there on children working in those brothels? That was my question.

The Hon. J.M.A. LENSINK: The bill itself makes no changes to those provisions, so if that is a concern to the honourable member, then he is more than welcome to draft an amendment to that effect.

The Hon. P. MALINAUSKAS: I want to understand the mover’s position in respect of that last point. My understanding is that there are a number of people in this place who have criticised the Hon. Mr Ngo for moving amendments at this late stage and some say it is a representation of obfuscation, attempted delay or unnecessary restriction on the progression of this bill, but now the mover is inviting the honourable member to make an amendment. I am just trying to understand how those inconsistencies work.

The Hon. J.M.A. LENSINK: I will address the elephant in the room. There are certain delaying tactics that will be employed. People will raise things to raise doubt, etc. Anyone who is fair dinkum could have raised these things. I gave notice a month ago about this particular stage of the legislation and that if people had any concerns they could contact me. If they wanted to draft amendments, so be it, but I am just testing people’s bona fides. If they are genuinely concerned about these issues, why have they not had them drafted?

The Hon. R.L. BROKENSHIRE: I ask the mover, the Deputy Leader of the Liberal Party in the Legislative Council, the Hon. Michelle Lensink, a question regarding clause 4—Insertion of section 68AA. Subsection (2) provides:

(2) However, it is a defence to a charge of an offence agai n s t this s ection if it is proved that the defendant be l ieved on reasonable grounds tha t the person to whom he or she provided commercial sexual services had attained 18 years of age.

I have been to police Bluey Days and I have been to school graduations and when young people are dressed up they often look older than they are. Therefore, my question is: what is the basis, definition and intent of reasonable grounds?

The Hon. J.M.A. LENSINK: The honourable member goes to some of the matters that are sometimes related to precedents in law and drafting issues. That is an identical clause to what is in section 68 of the existing Criminal Law Consolidation Act; that is, subsection (5) has identical wording. I understand that that is part of the standard form for a range of this sort of legislation that addresses these particular matters.

The Hon. R.L. BROKENSHIRE: Supplementary question: for the record and for perpetuity, is the honourable member comfortable that this clause protects what it intends to protect when it comes to age identification?

The Hon. J.M.A. LENSINK: What I am comfortable with is that it is consistent with existing legislation. Again, I invite the honourable member to have, perhaps retrospectively, if he had concerns with a particular clause in relation to the existing Criminal Law Consolidation Act—an identical one that is perhaps a more serious matter of the use of children in commercial sexual services—sought to amend it if he was so concerned.

The Hon. D.G.E. HOOD: This is my last question on clause 4. As I indicated a moment ago, and I think all of us are pleased that this is the case, the bill actually inserts a provision on providing commercial sexual services to children, but my question is: does it specifically prevent children from providing those sexual services?

The Hon. J.M.A. LENSINK: That exists in section 68 of the Criminal Law Consolidation Act. There are serious penalties if the child is under 14 years of age, including imprisonment for life, for instance.

The Hon. R.I. LUCAS: I am responding to the comment from the Hon. Tammy Franks earlier. As the Hon. Michelle Lensink has just pointed out, clause 68 refers to, I assume, brothels generally; that is, the use of children in commercial sexual services. The existing act, as the Hon. Michelle Lensink has pointed out, places the prohibition about employing children, or persons under the age of, I presume, 18, although it does list here 14 and then later on I think it is 18. It provides:

(1) A person must not employ, engage, cause or permit a child to provide, or to continue to provide, commercial sexual services.

The provision the Hon. Michelle Lensink is adding is, in essence, that you cannot provide a sexual service to a child. The issue that the Hon. Mr Hood has raised, and I think the Hon. Ms Lensink has arrived at, is that there is probably no restriction on a child working in a brothel or a commercial sexual service, whatever phrase you wish to use, doing admin work, or whatever other work it might be, other than providing commercial sexual services. I think the answer that the Hon. Ms Lensink has given is that that is essentially allowable under the bill.

The issue is that it is not really an issue that has to be addressed, I suspect, under the existing legislation, because we do not have a decriminalised model. We are now moving to a decriminalised model, so in essence we are giving sort of the seal of approval to this as a semi-valid industry of employment, and the issues that the Hon. Mr Hood is raising are, I think, reasonable issues to be raised, that is, are there to be further restrictions. I think the answer from the Hon. Michelle Lensink is that under the bill that we have before us there is no further restriction, and there is no existing restriction because there did not need to be; it was a criminalised model. Under this decriminalised model, there is no further restriction on the issue that the Hon. Mr Hood has raised.

The Hon. J.M.A. LENSINK: If I could address that, some of my learned colleagues who follow these matters much more closely than I have in my parliamentary career have pointed out to me provisions in the Fair Work Act of 1994, specifically Division IA, which is Special provision relating to child labour and 98A, being Special provision relating to child labour. The commission may by award determine that children should not be employed in particular categories of work or in an industry or a sector of an industry and impose special limitations on hours of employment of children, but I think it is that subclause A that can prevent children from working in specific industries that would address those matters.

The Hon. R.L. BROKENSHIRE: Can the mover of the bill, the Hon. Michelle Lensink, explain to the house the situation around children, minors, being on the premises, not, obviously, being involved in sexual activities, not being involved in cleaning up tables or whatever else may occur in a brothel? Can you categorically guarantee, with the bill that you are putting up, that children will not be influenced or see a situation regarding direct prostitution on those premises?

The Hon. J.M.A. LENSINK: I am not quite sure what the honourable member is getting at, whether he is trying to say that children should be excluded per se from being on the premises. If it was the child of a sex worker, then I think that would be completely unreasonable.

The Hon. M.C. Parnell: There might be a crèche.

The Hon. J.M.A. LENSINK: Yes, there may be circumstances where the sex worker would have their child being looked after by the receptionist, or being there for some reason. I am not quite sure what the honourable member is getting at.

The Hon. R.L. BROKENSHIRE: To clarify the point, I personally as a father would have enormous concerns about my children when they were young—they are adults now—being on premises at all where any form of prostitution and associated activities occur. We all know that it is not only prostitution, even though it is denied by the Sex Industry Network. The reality is—read the police commissioner’s letter—money laundering, organised crime, outlawed motorcycle gangs and also illicit drugs.

I, for one, would not want to see my children there. Well may some laugh about that, but they have children too, so this is pretty important stuff. If we are going to decriminalise this, we are opening up an avenue that has not been opened up before, so I want to know, when it comes to issues around minors on a premises what checks and balances does the mover of this legislation have to protect those children from coming into any contact? If you look at liquor licensing as a simple issue around alcohol and hospitality, there are laws there about minors being on the premises. So, I want to know what is the situation here regarding minors being on those premises because I am pretty interested, as one legislator, in ensuring the protection of those innocent minors, as we have in other laws.

The Hon. J.M.A. LENSINK: The best check and balance for the minors would be their parents.

Clause passed.

Clauses 5 to 8 passed.

Clause 9.

The Hon. D.G.E. HOOD: Clause 9 inserts a prohibition into the Equal Opportunity Act under section 85U against discrimination against sex workers, or persons who have been sex workers, in relation to their other employment or work. My question is: in the situation where a sex worker or prostitute seeks work at a church or a religious school, for example, or somewhere of that nature that has a specific ethos, for whatever reason, would that individual be able to be discriminated against if they are actively working in that regard, that is, if they are a sex worker at that time and seeking other work in a school or a church or something like that? Would the exemption extend that far?

The Hon. J.M.A. LENSINK: My understanding of the Equal Opportunity Act is that there are some specific exemptions for those situations that the honourable member has outlined, and that this particular provision adds to a range of general anti-discrimination provisions that apply to a broad range of other categories.

The Hon. D.G.E. HOOD: I think I understood the honourable member, but just to be clear: in the circumstance I just outlined there would be no prohibition as such?

The Hon. J.M.A. LENSINK: From my understanding there are some very specific exemptions in equal opportunity legislation of which religious organisations are able to avail themselves that are not available as general provisions that, say, providing a service from a shop and so forth or an aged care facility are able to avail themselves of, and these provisions relate to those general provisions of the service from a shop or aged care facility, and so forth.

The Hon. D.G.E. HOOD: I think we are getting there. So, my initial understanding was wrong? The Hon. Michelle Lensink is saying—correct me if I am wrong—that in fact in those circumstances the prohibition would apply?

The Hon. J.M.A. LENSINK: Correct.

Clause passed.

Clauses 10 to 14 passed.

Clauses 15.

The Hon. D.G.E. HOOD: This one is the clause that deals with the provision of accommodation essentially, and it is another Equal Opportunity Act exemption and is under section 85ZH. My question is, in this circumstance, that if a prostitute has taken out a tenancy (usually it is a she—not always of course, but often) in particular premises with a normal arrangement with the landlord, but then the landlord discovers that she is using the place as a work-from-home brothel, if I can describe it like that, is the landlord under those circumstances, if he or she was not aware when the agreement was entered into under this provision, legally able to refuse to renew the lease? Of course, we have had discussions that, if three months notice is given, the landlord does not need to give any reason, but would they be contravening the Equal Opportunity Act if they expelled the individual on those grounds?

The Hon. J.M.A. LENSINK: Could you repeat that, please?

The Hon. D.G.E. HOOD: Perhaps I did not word it very well. Forgive me. I will try again. In a situation where a sex worker (prostitute) is a tenant and has entered into a landlord agreement to be a tenant in a particular premises, and at some later point the landlord discovers that the house is being used as a base to provide sexual services, would the landlord be legally able, under this exemption to the Equal Opportunity Act, to expel the person on the grounds that they were using it as a base for sex services?

The Hon. I.K. HUNTER: Just to add further to the Hon. Mr Hood’s question and to allow the Hon. Michelle Lensink to consider it further, could she differentiate in her response between a person who has a tenancy in a residential apartment, for example, and whether that person could have the tenancy broken by the landlord if he found out, for example, that that person was a sex worker, as opposed to the landlord finding out that that person was actually using the premises for carrying on a commercial activity for which they did not have permission? There are two distinctions there. One, you are having your lease terminated because you are a sex worker; and two, you are having your lease terminated because you are actually carrying out a commercial activity for which you do not have an agreement with the landlord.

The Hon. D.G.E. HOOD: That is precisely my question because this goes to the matter of the equal opportunity provisions which would allow for it. That is my question.

The Hon. J.M.A. LENSINK: I appreciate that clarification. The answer is that it relates to if the landlord finds out that the tenant is a sex worker, then he or she cannot initiate breaking the tenant arrangement on the grounds that the person is a sex worker, but clearly if they are carrying on a business that is not part of their agreement, then that would be grounds for terminating the agreement.

The Hon. D.G.E. HOOD: I think what that says is the equal opportunity provisions do not come into effect there because it is not the individual’s role that is the issue. It is the fact that a business is occurring at all.

The Hon. J.M.A. LENSINK: Yes, that is correct. Yes, that would apply as with other people who may carry on other particular things without the agreement of their landlord.

Clause passed.

Clauses 16 and 17 passed.

Clause 18.

The Hon. T.T. NGO: I move:

Amendment No 1 [Ngo–1]—

P age 6, line 3 [clause 18, inserted section 16A(2), definition of prescribed sex work offence , (c)]—Delete ’25,’

The reason I am moving this amendment is because through the Hon. Michelle Lensink’s bill she is trying to remove prostitution convictions from people’s criminal history, including public soliciting convictions. My amendment is to support what she is trying to do, except the public soliciting and make that an offence. That is what I am trying to achieve with this amendment.

The Hon. R.L. BROKENSHIRE: As I said earlier in my input to the committee on the deliberation of this bill of the Hon. Michelle Lensink, I accepted that we were going to go through committee tonight but that then we would have a chance to get back to our constituents before we went to the third reading; that is, a final vote. Yesterday, I received an email advising that the Hon. Michelle Lensink now wanted to take it through its entirety tonight. That is the first point, and the second point is that since then, as the Hon. Stephen Wade has pointed out, at approximately 2.30 this afternoon the Hon. Tung Ngo moved a plethora, quite a group, of amendments.

As late as this morning on my way to parliament I had a phone call from another constituent, who happens to be in Canberra today, who has requested that I report progress to that constituent, indeed as I have to report progress to over 1,000 constituents who have contacted me about this bill—

The Hon. G.E. Gago: It’s not the third reading.

The Hon. R.L. BROKENSHIRE: Just hang on—regarding what the outcomes of the committee stage were before the third reading. So, I have all that in my head, and then at 2.30 this afternoon we have these other amendments tabled. As I said, I may not be as expedient in my capacity to absorb the workload as some of my colleagues, and I acknowledge that, but I wanted due diligence on it. The fact is that I have, first, had no chance to consider the plethora of amendments made by the Hon. Tung Ngo and, secondly, I have certainly had no chance to consult with the constituents I deal with under the democratic process of the Westminster system. Therefore, as convention has it, I move:

That progress be reported.

The ACTING CHAIR ( Hon. J.S.L. Dawkins ): There were two voices—

The Hon. K.J. Maher interjecting:

The ACTING CHAIR ( Hon. J.S.L. Dawkins ): I am sorry, Leader of the Government, I heard two voices, and I call divide. Ring the bells.

The committee divided on the motion:

Ayes: 4

Noes: 17

Majority: 13

AYES
Brokenshire, R.L. (teller) Hood, D.G.E. McLachlan, A.L.
Stephens, T.J.

 

NOES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hunter, I.K. Lee, J.S. Lensink, J.M.A. (teller)
Lucas, R.I. Maher, K.J. Malinauskas, P.
Ngo, T.T. Parnell, M.C. Ridgway, D.W.
Vincent, K.L. Wade, S.G.

 

Motion thus negatived.

The Hon. J.M.A. LENSINK: I understand we are on amendment No. 1 of the Hon. Mr Ngo. If I could just address the matter of the insinuations about my email, I will read the emails into the record because I think they were pretty clear. On Friday 2 June 2017, which is over a month ago, I advised, in relation to this bill:

Dear Colleagues,

Following tabling of the select com mittee report (attached), this b ill has now bee n restored to the Notice Paper .

I wish to proceed with the committee stage o f debate on Wednesday 5 th July.

Feel free to contact me if you have any amendments or other concerns.

I received a phone call yesterday from one of our colleagues who asked that I send an email to clarify because apparently there were some members who were of the impression that we might not proceed to a third reading, which I found a little bit odd because usually when we do the committee stage we follow with a third reading vote. Why would we hold that off for another day? I then sent an email as follows:

Dear Colleagues,

For the abundant clarification of some m embers, the expectation is that the third reading of this b ill will be voted on tomorrow, Wednesday 5 th July.

I again offer that I can be contacted regarding any concerns.

I apologise if anybody was of the impression that we would not be proceeding to a third reading vote. Certainly, in any of the conversations I have had with people in the last few weeks I would have to say that the consensus of members of this place was that we would be proceeding to a third reading vote, and had certainly indicated that in any public commentary in the media on this matter.

In relation to this particular clause, it amends the Spent Convictions Act provisions and is the first amendment of the Hon. Mr Ngo in relation to soliciting. I have already indicated that I will be opposing all of his amendments, but the reason for opposing this particular one is that people who are involved in soliciting or street work are the most vulnerable and marginalised people working in the industry. I do not think it assists them in any way to exempt them from the Spent Convictions Act provisions. If people have concerns about their welfare then I do not think that this amendment would assist them in any way to find other means of employment in the future if they chose to do something else.

The Hon. T.A. FRANKS: I rise to address amendment No. 1 moved by the Hon. Tung Ngo and indicate that I will be opposing this amendment. I do so for some of the reasons just expressed by the Hon. Michelle Lensink, in that those sex workers who work as street workers are the most vulnerable, the most marginalised part of this industry. If those people who would like sex work not to exist would like these particular people to get out of the industry, by continuing to have discrimination against them they defeat their own purpose. This enables people to have a clean record, to get a range of employment, and to get out of sex work if they so choose.

As I said, the decriminalised system has been proven in New Zealand and elsewhere to reduce the rates of sex workers who are street workers. Street workers are people who are often homeless, people who may have no other means of income, for whatever reason. These are not the people we need to further criminalise and to contain in a marginalised and excluded and criminalised future. We need to give these people every option for a better future.

Just a comment on the Hon. Michelle Lensink’s information to us, both in her contribution in this place and then in her email, the Greens might only have two members in this place but we hope to have three one day, and we do understand that three usually comes after two. We had already had a second reading vote so we figured it was a third reading vote after the second.

The Hon. P. MALINAUSKAS: Along the lines of what the Hon. Tammy Franks just asked, I want to get some clarification around the intent of this particular amendment, particularly in light of the fact that it has been put before us relatively late. My understanding upon the reading of this particular amendment is that the intent is not, as the Hon. Tammy Franks suggests, to allow for convictions to remain for a sex worker but rather for the conviction to remain in the case of someone who was soliciting the sex worker. I want some clarity from the mover around that.

The Hon. T.T. NGO: I agree with the Hon. Tammy Franks that a street worker is one of the disadvantaged people in society. I have been told that I needed to move this because my future amendment, which I will move a bit further on, will imply that public soliciting will become an offence. So that is what I am trying to do, that is my understanding of it. Otherwise I am happy for this to be voted down, but my main purpose is that if this bill goes through in the future and if my amendments in terms of public soliciting go through, then it will make it an offence.

The Hon. P. MALINAUSKAS: I really want to be clear about this. Is it the advice of the mover or has the mover received advice that this amendment necessarily needs to pass if there is an objective to preserve solicitation as a criminal offence?

The Hon. J.M.A. LENSINK: My view, for what it is worth, is that amendment No. 1 addresses the Spent Convictions Act. Amendments Nos 2, 3 and 4 reinsert provisions into the Summary Offences Act, so Mr Ngo’s amendments Nos 3 and 4 are consequential on No. 2 but No. 1 is separate. If you were you listening to my explanation as to why I oppose this particular amendment, it is because if people have concerns about people who are involved in street work and their potential future ability to exit the industry the Spent Convictions Act is quite important to assist them, whereas Mr Ngo’s amendments Nos 2, 3 and 4 stand together and reinsert provisions into the Summary Offences Act which would make street work illegal. That is my reading of it.

The CHAIR: I ask the gallery to keep the sound down, because members are having trouble hearing the debate.

The Hon. A.L. McLACHLAN: I would just like to ask a question of the mover by way of clarification. It is along the lines of the Hon. Mr Malinauskas’s question. Whilst amendments Nos 2 and 3 do not technically flow from amendment No. 1, if amendment No. 1 is not successful, the provision of 16A(1) states:

… a prescribed sex work offence will be taken to be spent on the commencement of this section (including, to avoid doubt, a conviction occurring after the commencement of this section).

If amendment No. 1 does not get up, and amendments Nos 2 and 3 go in, at the moment that you are convicted for soliciting, by happy coincidence, the offence is then immediately spent, at the same time possibly. Is that right?

The Hon. T.T. NGO: That is my understanding. That is why I was told that I needed to move these amendments for it to work.

The Hon. A.L. McLACHLAN: To assist the Hon. Tung Ngo, even though they are not technically consequential, they are inextricably tied, so honourable members will need to reflect carefully on the spent conviction in amendment No. 1 as they consider what they are doing in amendments Nos 2 and 3.

The Hon. P. MALINAUSKAS: I think the Hon. Mr Andrew McLachlan has come to the nub of the issues that I was asking about, so I appreciate his assistance. I think that provides clarity to the chamber in terms of how people should vote if their intent is to support the other Ngo amendments.

The Hon. D.G.E. HOOD: I also thank the Hon. Mr McLachlan for clarifying, and for that reason the Australian Conservatives will support the amendment.

The Hon. R.I. LUCAS: I agree with the Hon. Andrew McLachlan’s interpretation of the connection between amendment No. 1 and amendment No. 3, so we have come to that happy arrival. There has been earlier debate in relation to this provision about streetwalkers. I acknowledge that some members of the committee have taken evidence and placed that evidence on the record. I want to refer to a contribution from the Hon. Dennis Hood in July 2015. Again, this is conflicting evidence to the evidence that members of the committee have placed on the record in relation to the impact of changes in New South Wales and New Zealand on street prostitution. The Hon. Mr Hood placed on record the example of Darlinghurst, New South Wales. He said:

The Darlinghurst area recorded a 460 per cent increase in prostitution charges in 2014 for street prostitutes who were soliciting within residential areas.

He went on to indicate—and these are much earlier figures and the committee may well have had access to more recent figures, which I concede:

Indeed, the New Zealand Prostitution Law Review Committee noted that street prostitution in Auckland more than doubled from 2006 to 2007. The New Zealand Ministry of Justice report on the review of street-based prostitution in Manukau City in April 2009 noted that the number of streetwalkers was estimated to have quadrupled in just one year.

He also commented:

Since decriminalisation in New Zealand it has been reported that streetwalking…in Auckland has increased somewhere in the order of 200 to 400 per cent.

I just place on record that I acknowledge that the committee has obviously taken evidence that claims that as a result of the introduction of this particular model, there will be a significant reduction in streetwalking and street workers. The Hon. Mr Hood has placed previously on the record evidence from New Zealand and New South Wales that points to the contrary. Time, I guess, will tell if we see this become law here, but I want to place on the record that there is conflicting evidence in relation to what the impact of these types of changes will be in terms of street workers or streetwalkers.

My other question—and I am not sure who might have an answer to this. The Hon. Mr McLachlan might or might not. In relation to the Spent Convictions Act that the bill is seeking to amend, the Hon. Mr Ngo has moved a further amendment. In relation to these particular offences, he is seeking to delete section 25 for the reasons that have just been explained. Is it correct with all of these offences that, after 10 years under the Spent Convictions Act, the convictions are spent anyway, or is this the particular provision which says they are not spent?

Not being an expert on the Spent Convictions Act, I have no idea. Are these particular offences ones that, in the normal course of events, would be spent after 10 years as per the normal operation of the Spent Convictions Act, or are these actual provisions which are excluded and, therefore, are never exempt except for the fact that this particular legislation will seek to exempt or spend some of them immediately upon the start of this particular bill?

The Hon. A.L. McLACHLAN: I am unable to assist at the moment without reading the Spent Convictions Act, which I can do for the honourable member if he insists.

The Hon. T.T. NGO: I am not a lawyer but my note here says that if soliciting is still an offence and a person is convicted of this affront to the community, then it should remain for at least 10 years, as it currently does under the Spent Convictions Act. I know the Hon. Steph Key, when she introduced her bill in 2014, explained what the Spent Convictions Act means. I quote:

Most of the crimes are covered by the Spent Convictions Act , which means that , if one does commit another crime for a period of 10 years after the original conviction , it will be considered spent , or no longer applicable , or wiped from one’s record.

The CHAIR: Someone here can probably help you—the parliamentary counsel.

The Hon. R.I. LUCAS: I think that answers it.

The CHAIR: You are happy with that?

The Hon. R.I. LUCAS: Yes.

The Hon. T.T. NGO: That is the definition.

The Hon. D.G.E. HOOD: Just for your information, Mr Chairman, after you put the amendment I have another question on clause 18.

The committee divided on the amendment:

Ayes: 8

Noes: 13

Majority: 5

AYES
Brokenshire, R.L. Hood, D.G.E. Lee, J.S.
Lucas, R.I. Malinauskas, P. McLachlan, A.L.
Ngo, T.T. (teller) Stephens, T.J.

 

NOES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hunter, I.K. Lensink, J.M.A. (teller) Maher, K.J.
Parnell, M.C. Ridgway, D.W. Vincent, K.L.
Wade, S.G.

 

Amendment thus negatived.

The Hon. D.G.E. HOOD: This question relates to police powers that are impacted in clause 18, after section 16A(2)(c). It deletes part 6 of the Summary Offences Act 1953. That part of the Summary Offences Act is the part that provides police with search powers to enter brothels, and that is removed by the deletion of section 6 of the Summary Offences Act.

It is pertinent to note that according to the correspondence from SAPOL that I referred to earlier—I have only read the last couple of paragraphs—in a two-month period over December 2016 and February 2017 (so, relatively recently), SAPOL actually utilised this section 37 times in that two‑month period. My question is: given the frequency of SAPOL using section 32 of the Summary Offences Act some 37 times in a two-month period, what is the member’s basis for trying to remove it?

The Hon. J.M.A. LENSINK: The model of legislation has, I think, been described by the Law Society as a fairly pure decriminalisation model and therefore most references to the terminology—’prostitution’ or ‘sex work’—that is used in the statutes at the moment is being excised, apart from certain ones that I went through in my second reading speech. So, it relates to those. The police provisions in relation to right of entry into brothels is inconsistent with a decriminalised model. Their argument in favour of it is that it enables them to have a special ability to go in and check for particular things they may have concerns about, such as drug use, etc.

It was outlined quite clearly to us in the Law Society, both in verbal and written evidence—I can retrieve those if you wish me to find them—that there are extensive laws under which the police, or any other authorities for that matter, may already enter premises if they have a reasonable suspicion that there is something illegal taking place. It was something that was addressed quite significantly by the Law Society, and if you wish me to retrieve those specific provisions I am happy to do so, but the right of entry into brothels is inconsistent with the pure decriminalised model.

Clause passed.

Clause 19.

The Hon. T.T. NGO: I move:

Amendment No 2 [Ngo–1]—

P age 6, after line 9—After its present contents (now to be designated as subclause (1) insert:

(2) Section 4(1)—after the definition of serious and organised crime offence insert:

sexual intercourse has the same meaning as in the Criminal Law Consolidation Act   1935;

sexual services means—

(a) sexual intercourse; or

(b) any other activity involving direct or indirect physical contact between 2 or more persons for the purpose of the sexual gratification of 1 or more of those persons;

(3) Section 4—after subsection (2) insert:

(2) For the purposes of this Act, a reference to the provision of sexual services on a commercial basis includes a reference to the provision of sexual services for any form of payment (whether monetary or otherwise).

The reason for this amendment is that I am told I needed a definition for sexual services, so that the other amendments, which I will move later, will make it easier for the court to define what is a sexual service.

If this amendment is defeated, and if someone is convicted of an offence under the amendments that I will move in terms of public soliciting, it will be up to the court to decide what that means. So, to make it easy I have a proper definition of sexual services. I also note that in the Hon. Steph Key’s amendments in 2014, she also inserted a definition of sex work to make it clear and to define what it means.

The Hon. R.I. LUCAS: On a question of clarification: which particular other amendment is this related to? As amendment No. 1 was related to amendment No. 3, does the Hon. Mr Ngo have advice as to this particular amendment No. 2 as related to which one of his later amendments?

The Hon. T.T. NGO: Three, four and six—I think the rest of it, too.

The Hon. R.I. LUCAS: Three, four and six are you saying?

The Hon. T.T. NGO: Yes.

The Hon. T.A. FRANKS: In the definition of sexual services in paragraph (b), it states:

any other activity involving direct or indirect physical contact between 2 or more persons for the purpose of the sexual gratification of 1 or more of those persons ;

My first questions is: what is ‘indirect physical contact’ and, two, how will sexual gratification of one or more of those persons be defined? You knew I would ask.

The Hon. T.T. NGO: Sorry, I missed the question?

The Hon. T.A. FRANKS: In the honourable member’s definition of sexual services I refer him to (2)(b):

any other activity involving direct or indirect physical contact between 2 or more persons for the purpose of the sexual gratification of 1 or more of those persons;

How is ‘indirect physical contact’ defined? What is indirect physical contact, and also, how will the sexual gratification of one or more of those persons be measured?

The Hon. T.T. NGO: The Hon. Ms Franks asked what direct and indirect physical contact means. I am told that direct is direct.

The Hon. T.A. FRANKS: I did not ask about direct. I asked what is ‘indirect’?

The Hon. T.T. NGO: Indirect could mean using an object, so that is what it means.

The Hon. G.E. Gago: To wave around.

The Hon. T.T. NGO: To wave around or whatever. It is something like that, so that is indirect.

The Hon. R.I. Lucas: It’s the vibe.

The Hon. T.T. NGO: The vibe, yes. The whole amendment really means to define payment through sexual services, so for me to be able to imply other amendments, I really need to make clear what sexual services means.

The CHAIR: I think one of the questions was: how do you define sexual gratification?

The Hon. T.T. NGO: That came out of the dictionary. Gratification is gratification.

The Hon. T.A. FRANKS: Would the mover envisage that somebody receiving a massage may actually fall within this definition?

The Hon. T.T. NGO: I would not say that a massage is sexual.

The Hon. T.A. FRANKS: The mover might not, but somebody else might think that, and so how can the mover define what anyone might find sexually gratifying?

The Hon. T.T. NGO: At the end of the day, the courts will have to decide that. That is for the court to decide based on that definition.

The Hon. T.A. FRANKS: How would a judge or a jury know what sexual gratification is to another person? Surely, that is a personal thing. My argument here is: how on earth will you define this? How do you define in law what turns somebody on and gives them sexual pleasure?

The Hon. R.I. LUCAS: While the Hon. Mr Ngo is taking on legal advice, can I point out to the Hon. Ms Franks that if she has a particular issue with the use of the phrase ‘sexual gratification’, clause 65A of the existing Criminal Law Consolidation Act, actually defines:

commercial sexual services means services provided for payment involving the use or display of the body of the person who provides the services for the sexual gratification of another or others ;

The existing Criminal Law Consolidation Act already uses some of the terms and phrases that parliamentary counsel has obviously advised the Hon. Mr Ngo to use. So, if the Hon. Ms Franks, or indeed others, is deriving pleasure from asking the Hon. Mr Ngo to define exactly how the courts and others will interpret sexual gratification in his amendment, that particular provision has existed in the Criminal Law Consolidation Act for quite some time and, not being a lawyer, there may or may not already be legal precedent in relation to that, but if not, it is in the existing Criminal Law Consolidation Act and it is certainly no new term that the Hon. Mr Ngo is introducing in terms of his definition.

As I indicated at the outset, whilst I am not locked into this particular definition that parliamentary counsel has given the Hon. Mr Ngo as part of the package of further amendments that he is going to move, if and when it gets to the assembly and comes back again, if on learned advice we need to change this particular amendment in some way or another, I am open to that, but in the interests of keeping the package of amendments alive for at least further consideration, I indicate I will support this particular amendment whilst reserving an ultimate position in relation to the precise drafting of the particular amendment that we have before us.

The Hon. T.T. NGO: My advice is that I am correct in terms of, at the end of the day, it is up to the court or the prosecution to determine the outcome of the sexual services. What they do is go through one of the clauses that I have chosen. They will determine whether sexual intercourse was involved and obviously if it was, then the definition fits. If not, then they will go on to paragraph (b) to determine whether that definition applies to sexual services.

If somebody is giving someone a massage and if money changes hands and if sexual gratification is an outcome, then the prosecution or the court will determine whether that may be a definition of sexual services. At the end of the day, it is really up to the prosecution or the court to decide what the definition means.

The committee divided on the amendment:

Ayes: 8

Noes: 13

Majority: 5

AYES
Brokenshire, R.L. Hood, D.G.E. Lee, J.S.
Lucas, R.I. Malinauskas, P. McLachlan, A.L.
Ngo, T.T. (teller) Stephens, T.J.

 

NOES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hunter, I.K. Lensink, J.M.A. (teller) Maher, K.J.
Parnell, M.C. Ridgway, D.W. Vincent, K.L.
Wade, S.G.

 

Amendment thus negatived; clause passed.

Clause 20 passed.

New clause 20A.

The Hon. T.T. NGO: I move:

Amendment No 3 [Ngo–1]—

P age 6, after line 12—Insert:

20A—Substitution of section 25

Section 25—delete the section and substitute:

25—Soliciting

(1) 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 a purpose related to the provision of sexual services on a commercial basis is guilty of an offence.

Maximum penalty: $1, 500.

(2) For the purposes of this section, a reference to a public place does not include a reference to premises at which sexual services are provided on a commercial basis.

This amendment is to insert clause 20A, which seeks to delete the soliciting offence contained in section 25 of the Summary Offences Act and replace it. The proposed substitution contains largely the same offence as is currently in section 25A of the Summary Offences Act but changes the terminology to ‘provision of sexual services on a commercial basis’ instead of ‘prostitution’.

This change is to reflect the fact that, if the bill passes, sex work will generally be decriminalised, but also to send a strong message that as a society we—and especially people living in The Parks area that I mentioned earlier—do not tolerate people accosting others on the street for the purposes of these services. I also moved to make the maximum penalty under this amendment $1,500; it is currently $750 so it is double the fine in the current act. This is also to provide a strong deterrent, and indicate that public soliciting for the purpose of prostitution is illegal.

As I said to members earlier, I was a councillor for The Parks area for 17 years, and in those 17 years the majority of the calls from people complaining in those areas related to concern with Hanson Road and public soliciting in those areas. I wanted to give the people living down that way some kind of safeguards, and most people would believe that for this bill to go through and to decriminalise prostitution and for prostitution to become legalised, it will hopefully stop people from street work.

However this clause, that has been put by the Hon. Michelle Lensink, really does not address this issue. To the contrary, it will probably encourage street workers even more, and that is my reason for moving this amendment to make illegal public soliciting for prostitution.

The Hon. T.A. FRANKS: I think the Hon. Tung Ngo and I are on the same page: I think we both want to see fewer people engaging in sex work on Hanson Road and on streets and doing what we call street work. I believe—and I think the evidence shows—that the way to do that is a decriminalisation model. I also believe that if you were serious about the most vulnerable street sex workers not being on the streets, you would have safe houses. That is the example we are aware of around the world, and they are often run by churches—safe houses, the Hon. Mr Brokenshire.

The Hon. R.L. Brokenshire: Are they the ones the government got rid of a couple years ago? What is a safe house?

The Hon. T.A. FRANKS: A safe house is a place where harm minimisation, health outcomes and safety for sex workers can be supported through a premises that they can use at a very cheap rate, a premises that is staffed, a premises that is usually run by a charity that wants to support people to have options in life and to have safety in life. Safe houses are actually a better solution than increasing—doubling—the penalties on some of the most marginalised people in our state, people who already cannot pay a $750 or so fine will not be able to pay several thousand dollars. They are going to end up in gaol, they are going to end up further in poverty, they are going to end up needing to find money from somewhere through punitive measures such as this.

As I say, we come from the same place but I do not see that this is the way forward if you want to address the issue of street work. I point out that in this state a few years ago we had those street workers on Hanson Road targeted through Facebook. There was a game where, if people threw things out of their cars, they could get points for hitting these people, usually women, who were sex workers on the street, because they are the most marginal and vulnerable of people.

Some members of our community saw that vulnerability as an opportunity to further hurt and harm those people and, because they are criminalised, they were not in a position where they could go to the police. That is what we will continue to see happen in our society unless we do something more proactive about it, and harm minimisation and safe houses is a better way forward.

The Hon. R.I. LUCAS: As I indicated earlier in my contribution, I quoted the statements from the Hon. Dennis Hood’s earlier contribution on this legislation, and I acknowledge that there are obviously differing views in relation to what the evidence shows. Certainly the evidence he placed on the record, in New South Wales and New Zealand, was a significant increase after the model was introduced there in street workers as a result of the legislation we are being asked to consider. I accept that the Hon. Tammy Franks has evidence from her committee work that would argue the contrary; time will tell.

I intend to support the amendment for the earlier reason I gave. I think this is an important amendment for further consideration. I know this is one of the areas that local councils are concerned about, which I talked about in my earlier contribution to clause 1. They are concerned that the views of people in the suburbs of Tea Tree Gully and Marion are being represented by the local representative on the councils. For example, the Tea Tree Gully council last year passed a resolution opposing this particular piece of legislation. It passed a motion to write to all MPs outlining the council’s opposition to this bill.

One of the issues that they outlined in the Tea Tree Gully council’s motion was the regulation of public soliciting by prostitutes, street prostitution, which the bill allows for in an unfettered manner. These are the sorts of grassroots concerns that local representatives have, in this case in local government. There are some very interesting names of people who supported that—I note one had the surname Hanson, which was interesting—urging MPs to vote against this particular piece of legislation.

That is an indication that those people are at the shopfront, at the local level, representing households, residents and constituents, who feel the pressure of the concerns that residents have about streetwalkers. They represented their views through their council, and we have seen it through Salisbury and Marion councils and a number of other councils, who put their point of view. One of the concerns that they listed in the Tea Tree Gully area and north-eastern suburbs area was in relation to this issue of street workers.

The Hon. D.G.E. HOOD: I indicate that the Hon. Robert Brokenshire and I will both support the amendment as well. I indicated in my clause 1 contribution that this issue is being specifically raised by a number of groups. As I recall, that includes the police and a couple of councils, and the Hon. Mr Lucas just mentioned that. I also very briefly touched on the LGA’s concerns about some of these issues, but what I did not mention, which I intend to place on the record now, is that the LGA was specifically concerned about this issue of streetwalkers.

I will read in part from the letter from Matt Pinnegar, the Chief Executive Officer of the LGA. No doubt, a number of members are familiar with him. He wrote this letter on 29 September 2015. It is not a long letter, but I will not read it all; I will just read the relevant part. It states towards the bottom of the letter:

I n addition, there do not appear to be any clear regulatory provisions to manage the social impacts of street soliciting for the purposes of performing sex work. Councils are extremely concerned that the lack of clear provisions in relation to compliance and enforcement may have the effect of making councils de facto enforcement agencies. Councils have neither the appropriate powers, nor the desire, to take on a compliance and enforcement role in relation to sex work. The LGA submits that SAPOL should be given an explicit compliance and enforcement role under the proposed Bill to remove any suggestion that councils will be required to assume any regulatory role in relation to sex work.

That is the LGA’s view. It is very clear. In addition to a number of the councils, which we have also heard from, they are concerned about what will happen with this specific aspect of this bill. I am concerned about it, too, and that is why we will be supporting the amendment.

The Hon. P. MALINAUSKAS: I will be supporting the Hon. Mr Ngo’s amendment. I reiterate the remarks that I made at clause 1, specifically in regard to the concerns of those residents who have to deal with the prevalence of streetwalking almost on a daily basis. Again, I think there are people of good intent who can arrive at different conclusions in terms of the merit of this bill generally, but specifically in respect of this amendment. I think this amendment has merit.

For me, the test for supporting this amendment can be made rather simple. I say that with a degree of caution because I acknowledge it is a complex issue and it is sometimes dangerous to try to apply a simplistic lens to the merit of the argument. If one is not comfortable with the idea of streetwalking occurring out the front of their own home, then it is difficult to oppose this amendment.

If you are of the view that streetwalking is problematic and not necessarily desirable out the front of one’s own home, then I think you should be supporting the amendment. Generally speaking, I take this view. I have spoken to many residents within areas around Hanson Road and in suburbs around the Parks who are really quite fed up with this behaviour occurring in front of and around their own homes.

Again, I think it is a pretty simple question. If you are okay with streetwalking occurring out the front of your own home, sure, oppose the amendment, but if you think that is the sort of activity you would not like to see out the front of your own home, where you may be raising a family, then this amendment should be supported. For mine, that is one of the reasons why I will be supporting this amendment.

The committee divided on the new clause:

Ayes: 8

Noes: 13

Majority: 5

AYES
Brokenshire, R.L. Hood, D.G.E. Lee, J.S.
Lucas, R.I. Malinauskas, P. McLachlan, A.L.
Ngo, T.T. (teller) Stephens, T.J.

 

NOES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hunter, I.K. Lensink, J.M.A. (teller) Maher, K.J.
Parnell, M.C. Ridgway, D.W. Vincent, K.L.
Wade, S.G.

 

New clause thus negatived.

The CHAIR: The Hon. Mr Ngo, your next amendment is consequential?

The Hon. T.T. NGO: I withdraw that amendment.

Clause 21 passed.

New clause 21A.

The Hon. T.T. NGO: I move:

Amendment No 5 [Ngo–1]—

P age 6, after line 14—Insert:

21A—Insertion of section 25A

After section 25 insert:

25A—Offence to use premises for purposes of sex work near certain kinds of premises

(1) An owner or occupier of premises must not provide, or cause or permit the provision of, sexual services on a commercial basis at the premises if the premises are located within the prescribed distance from protected premises.

Maximum penalty: $5, 000 or imprisonment for 3 months.

(2) Subsection (1) does not apply—

(a) in relation to premises that first become protected premises after the owner or occupier of particular premises has commenced providing, or causing or permitting the provision of, sexual services on a commercial basis at the premises; or

(b) to an owner or occupier of premises who causes or permits the provision of sexual services on a commercial basis at the premises if—

(i) the sexual services are only provided to the owner or occupier; or

(ii) the sexual services are provided to another person and the owner or occupier is genuinely acting in the course of their duties as a carer (however described) for that person; or

(c) in any other circumstances prescribed by the regulations.

(3) In proceedings for an offence against subsection (1), it is a defence for the defendant to prove that the defendant did not know, and could not reasonably have been expected to have known, that particular premises were protected premises.

(4) In proceedings for an offence against subsection (1), it is not necessary for the prosecution to establish that—

(a) a service of a kind referred to in the definition of protected premises was, in fact, being provided at the protected premises at the time of the alleged offence; or

(b) that a child or other person was, in fact, at the protected premises at the time of the alleged offence.

(5) For the purposes of this section, a reference to premises includes a reference to any part of the premises.

(6) In this section—

child care centre means premises in which more than 4 young children are, for monetary or other consideration, cared for on a non-residential basis apart from their parents or guardians; 

Adelaide central business district means the area of the City of Adelaide bounded— 

(a) on the north by the southern alignment of North Terrace; and

(b) on the south by the northern alignment of South Terrace; and

(c) on the east by the western alignment of East Terrace; and

(d) on the west by the eastern alignment of West Terrace;

prescribed distance , from protected premises, means— 

(a) if the protected premises are located within the Adelaide central business district—100 metres; or

(b) in any other case—200 metres;

protected premises means premises that are regularly used— 

(a) as a child care centre; or

(b) to provide kindergarten, preschool, primary school or secondary school services; or

(c) to conduct religious services; or

(d) to provide any other class of service declared by the regulations to be included in the ambit of this definition,

but does not include a home school, a private residence or any other premises of a kind excluded by the regulations from the ambit of this definition.

The purpose of this amendment is to keep what the community commonly know as brothels or places where sexual services are provided for payment away from schools, childcare centres and places of worship such as mosques and churches. I note that this amendment is similar to the provision that the member for Ashford, the Hon. Steph Key, had in her sex work reform bill in 2012.

My amendment will make it an offence to provide sexual services on a commercial basis within 200 metres of a school, childcare centre or place of worship, outside of the CBD. Within the CBD, it will be an offence for these services to be provided within 100 metres of these said premises. I have decided to make the distance in the CBD less to reflect the higher density than the suburbs. I can understand that it is impractical to have a minimum of 200 metres in the city.

I am concerned about brothels near these premises, especially now that my previous amendment was unsuccessful and public solicitation is not a criminal offence. Practically, if this amendment does not get up, then you could potentially have streetwalkers standing outside of these premises that I have mentioned. I think it is very important that, as members of parliament, we have some safeguards and it is important that these sort of activities do not get too close to these places that I mentioned.

The Hon. R.I. LUCAS: I strongly support this amendment from the Hon. Mr Ngo. Again, I indicate that I do so in the interests of keeping the debate alive between the houses, assuming that—clearly, the numbers are going to be there for it to go to the House of Assembly. I think this is, together with the issue of streetwalking, one of the critical issues for local members. It will certainly sharpen the focus as we look for candidates’ views and attitudes in the period leading up to March 2018—not just members but candidates as well—as to whether or not they support this legislation and the impact of the legislation.

I think it was put pretty clearly earlier on. As I said, I reserve my right in relation to the precise drafting of this. It may well be that some of the provisions can be sharpened, hopefully in the debate in the House of Assembly, in relation to whether or not there are other centres that might need to be similarly prescribed as well. The key issue here is simply an issue for lower house members as they pitch their wares to constituents in the period leading up to the election, and that is: do they or do they not support the location of brothels next door to a childcare centre?

It is a pretty simple question to go to a candidate who wants to seek election at the next election, those candidates in the north-eastern suburbs, the Tea Tree Gully council, and the motion I have read where they strongly oppose this particular legislation, and a mysterious councillor by the name of Hanson supported that resolution. I am happy to place on the public record that he had very strong views, I am told, in relation to this legislation that we have before us. We have not seen those views necessarily being reflected during the debate thus far, but I guess time will tell.

These are critical issues for lower house members and candidates leading up to March 2018 and they should have the question put to them and the hard word should be put on them. Do they think it is right to have, and do they want to see a brothel next door to their local childcare centre when they are taking their four year old or their five year old to childcare services? Do they want a brothel and are they happy to see a brothel next door to a kindergarten when they take their five year old to kindergarten?

Do they want a brothel next door to their primary school, whether it is non-government, Catholic, independent or government school, when they take their five to 12 year old to primary school? Do they want to see a brothel next door to that? Do they want to see a brothel next door to their local Catholic Church or their Uniting Church or their mosque or their temple or whatever it might happen to be? Do they want to see a brothel next door to their next door neighbour’s place or their neighbour across the road, and justify to that particular neighbour why they think it is appropriate that we have a legal brothel (or decriminalised brothel, if that is the appropriate phrase) sitting across the road, operating without fear of police entry and without regulation?

Let us remember what Commissioner Stevens said, that this bill is offering less regulation than for a tattoo parlour or a second-hand goods premises or a liquor licensing establishment. Less regulation and less control, that is what we are being asked to support and that is what lower house candidates and MPs are going to be asked to support if they are going to put their hand up and support this particular legislation before the next election.

Let us concentrate their minds over the next few months as we lead into March 2018 and let them put their hands up and say, ‘Yes, all of that, happy to support it,’ and then good luck to them, because as I pointed out, now Speaker Atkinson already effectively demonstrated back in the nineties when he ran a vicious campaign against the Liberal Party in the western suburbs in relation to the location of brothels in the western suburbs, that that is the sort of dastardly deed that some of these dirty people in the Labor Party or indeed perhaps in some other political party might be able to get up to.

The CHAIR: Can I just draw your attention to standing order 193.

The Hon. R.I. LUCAS: Which is what?

The CHAIR: Which is ‘no injurious reflection on any member’.

The Hon. R.I. LUCAS: Dastardly deed is complimentary.

The CHAIR: No, it is a bit more than ‘dastardly deed’; you are making accusations that you have not presented any proof for, so just keep—

The Hon. R.I. LUCAS: No; that is complimentary, Mr Chair. It is complimentary. It is not an injurious reflection. I am admiring the dastardly deeds of some of the members of the Labor Party and indeed some others. No injurious reflection there, Mr Chair, in relation to it. They are the sort of dastardly deeds that people in the dark rooms of the Labor Party and the Liberal Party have got up to in the past, and potentially will get up to in this period leading up to the next election, so let us concentrate their minds.

As I said, the precise drafting of this particular amendment may well be able to be improved and that is an issue for members in another place to address themselves, should this bill get to them over the coming weeks. The essential questions for them are the questions that I put: do they want these brothels in these particular locations, and do they want these brothels to have less regulation (and this is according to Commissioner Stevens) than a tattoo parlour, a second-hand premises or liquor licensing establishments? That is, in essence, what this bill is offering to the people of South Australia.

I suspect when you talk to the residents of Tea Tree Gully, and if you are a local government councillor, the Hon. Mr Hanson, or if you are a lower house candidate in those particular seats, you will have a different attitude than if you are sitting here in the safety of the Legislative Council.

The Hon. M.C. PARNELL: I have not weighed in on every one of these clauses but, as the only qualified town planner in this parliament, I am going to weigh in on this one. This amendment is basically a reflection of moral values. It is not based on any particular actual or even perceived nuisance or anything that the law would recognise as something that needs to be dealt with.

The Hon. Rob Lucas poses the question: would you like a brothel next to your—insert childcare centre, school, church, whatever? In all my years working as an environmental lawyer, I found that the sort of land uses that people really did not want next door to them were funeral parlours because there are dead people in the backyard, there are coffins and things around and the hearse might drive past your house and remind you of your mortality.

People are funny. Often a brothel might look like a regular house. There might not be any signage. There might be nothing and it seems that it is only when you know what is happening inside that you cannot see but once you know it all of a sudden you have a problem. That is a remarkable way to look at land use planning decisions. So, the approach that I would take is certainly not to say that establishments used for sex work are some protected type of facility that must be allowed anywhere. That is not the way it works.

We have a state planning library and we have the new Planning Development and Infrastructure Act and they are proposing to have many more standard provisions that are going to apply to different types of industry. The test that we should apply, whether it is a brothel or a panel beating workshop is to ask: does this cause nuisance to people nearby? Is there going to be clearly offensive behaviour occurring outside the premises?

If the answer to those questions is yes, then you do not want them in those locations. But this is the wrong mechanism for achieving that. This is not based on any reality because you could have a regular suburban house in a regular suburban neighbourhood with no signage, there could be a bit of car parking at the back or maybe not, perhaps it is small enough that it does not need car parking and people park on the street like they do for anything else—you really do not need a provision like this.

The other point is that just at a practical level, these measures of 200 metres and 100 metres—you could have a situation where if we take a childcare centre for example is 200 metres away from the brothel, there might be no connecting streets. There might be no way to get from one to the other without driving several kilometres around. It is just an arbitrary set of measures that is really designed to impose a moral framework on this, which is that we do not like these businesses, we do not want them decriminalised and we are going to keep them away from other things that we do like, even if they do not cause any impact. It is just an illogical way to proceed so I will be opposing the amendment.

The Hon. P. MALINAUSKAS: I completely disagree with the Hon. Mr Parnell. As much as I regret to say it, in many respects I am inclined to agree with the Hon. Mr Lucas on this occasion. There is a simple test that needs to be applied here and that is the consideration of those people who currently deal with sex work occurring within the immediate proximity of their own residence. I have to say that I have spoken to a lot of these people and none of them tend to like it.

There is a simple question that needs to be asked and when people cast their vote on this measure I would implore them to consider asking if they are okay with the idea of sex work occurring in the immediate proximity of their home or of an institution along the lines of the ones that the Hon. Mr Ngo has listed in his particular amendment. If the answer to that question is yes then, sure, go for it and vote against the amendment. However, if the answer to that question is no, then I would encourage people to vote in favour of the Hon. Mr Ngo’s amendment.

I am trying to choose my words carefully but I think there is a degree of academia to the logic that is being applied by the Hon. Mr Parnell. There is a human element to this and the human element needs to be the consideration of those people who deal with this on a regular basis, or could be subjected to dealing with this. That is a legitimate consideration.

Sometimes perception does inform reality and I accept that, but it is also equally true that if someone perceives there to be a genuine risk or a nuisance associated with this type of work occurring in the immediate proximity of their own home, that raises a legitimate concern and it is very easy for people outside of that circumstance to form a view about it in a way that does not reflect reality. For those people who actually live that experience, their view of the world is real and genuine and should be taken into consideration.

I would challenge any member of this parliament to say that they are totally okay with the idea of a brothel or a sex work workplace existing next door to their childcare centre. It is a pretty basic test and I think the amendments that have been proposed are eminently reasonable and, for those reasons, I will be supporting them.

The Hon. D.G.E. HOOD: I am sure it will come as no surprise to anyone here that the Australian Conservatives will also be supporting the amendment. There are a number of reasons for that. The main one is simply this: we think the logic of arguing that councils should regulate these matters without any guide in legislation—just leave it to councils as a planning matter—is flawed. The main reason we say it is flawed is that the councils do not want it themselves. They have made that clear. They have actually taken time to write to the committee. I will just read from one of them. This is a letter from the City of Marion writing to the secretary of the committee, dated 14 October 2015, which states, at the first bullet point:

Consider reintroducing the proposed amendment to Part 6 of the Summary Offences Act 1953 (SA) outlined in the Statutes Amendment (Sex World Reform) Bill 2012, relating to it being an offence to use premises for the purpose of sex work within a ‘prescribed distance’ from ‘protected premises’ (i.e. 200 metres of schools, places of worship and the like).

It is exactly what the Hon. Mr Ngo’s amendment does. That is what the councils are asking for. It was not just this council; there were others. It is my understanding the LGA has supported that in broad terms. We think there is sound logic for this. I think the Hon. Mr Malinauskas’s point about which of us here really does want to see these sorts of premises right next to, for instance, a kindergarten, or wherever it may be, is entirely valid. We will be supporting the amendment.

The Hon. J.M.A. LENSINK: I have already indicated that I will not be supporting any of the Hon. Mr Ngo’s amendments but will just place some comments on the record in relation to this particular provision, which is one of several of the honourable member’s amendments which relate to matters that I think can fairly be classified as falling into the local government space.

First and foremost, the committee sought very hard to get views from the local government sector in relation to what it would like. Our starting position obviously was a decriminalised model, but if there were particular unintended consequences, that was really the purpose of the committee, and we sought very hard to gain their views. The Local Government Association actually refused to come and attend our committee, so we were not able to utilise their expertise to come up with a particular regime which might satisfy their members. I just state that that is a disappointment.

The amendment before us, I think, has good intentions. I think it is self evident what the mover is trying to get at. I have spent several years as a member of the Environment, Resources and Development Committee, with the Hon. Mr Parnell, and I would have to say that, after all those years of examining planning laws, it is still something that needs interpretation on a regular basis, so we are often very grateful for the expertise of the Hon. Mr Parnell on that committee.

Planning laws are complex. They are not black and white. They cannot be interpreted from reading the act. In fact, in many cases they cannot be particularly well interpreted from reading the zoning and whatever the local government plans are called these days.

Certainly we are all aware of zoning laws that our local government can apply to various parts of their districts. In general, residential areas are not in the same areas as commercial precincts or agricultural precincts and those sorts of things, so the concept that a brothel is going to pop up in your local suburb is a bit fatuous.

The committee took the view that on these matters which are local government matters we would recommend that the new state planning commission come up with those as part of its planning library. We thought that was the appropriate place for these issues to be determined—an organisation that has been tasked with coming up with planning libraries on a whole range of other issues. One of the matters we have debated recently has been the biodiversity report of the ERD committee, and that is another role it would have. I think that organisation is in an ideal situation to assist local government to devise means of managing this matter.

The Hon. I.K. HUNTER: I have a great deal of sympathy for the intent behind the Hon. Mr Ngo’s motion. Like many members in this chamber, I suspect, I do not think the way he is offering through his amendment is a correct way forward. It is far too prescriptive and will have unwarranted consequences. I also believe that some of the debate around this issue has been a little unhelpful in portraying those who oppose the amendment as those who are going to say that it is okay to open up a place outside your own house or your own childcare centre. I think it is a misreading of what is going on here.

If you allow for such prescriptive measures about how many metres away an organisation—whatever it is—can be from another organisation, you are always going to end up with unwarranted and undesirable outcomes. What, for example, happens if a brothel were to open up in commercial or industrial premises that are ideally suited but that happened to be 125 metres away from a childcare centre or a school? Under the Hon. Mr Ngo’s amendment, it cannot use that ideal location and it is forced to go 200 metres down the road, which could just be residential houses. That is more undesirable than utilising premises that are ideally situated in terms of current use.

The other issue, of course, is that if you draw circles of 100 metres or 200 metres around all these prescribed businesses that the Hon. Mr Ngo’s amendment speaks to, you may end up, particularly in the city, with absolutely nowhere that you can actually have a brothel. In that case, this is trying to thwart the intentions of the legislation and I do not support it. I think the common-sense approach is to leave it up to those people who make these decisions on land use and planning all the time. They can come up with common-sense approaches that respond to their local communities and get an outcome that is actually beneficial for all, rather than something that is so prescriptive that it just cannot work.

The Hon. D.G.E. HOOD: This will be the last contribution on this issue from me; I do not wish to detain the chamber. Very briefly, I have not read this part of the record, but in a general response to the argument that is being made that councils are somehow capable of using current legislation to regulate where these places should and should not be, I can tell you that the LGA does not share that confidence. In fact, in a letter dated 29 September 2015, written by their chief executive officer Matt Pinnegar, it states:

The key concerns for Local Government in relation to this bill are the lack of regulatory options. The LG A is concerned that the current provisions of the Development Act are not sufficiently robust to appropriately manage the development issues for premises used for sex work. The L G A is of the view that there should be explicit criteria developed to regulate the development issues.

I actually agree, to some extent, with the Hon. Mr Hunter that the Hon. Mr Ngo’s amendment is not perfect in that regard—it certainly is not. But, in the spirit of the Hon. Mr Lucas’s contribution, we will be supporting the amendment because if it should pass—and it may not—it would keep the matter alive between the houses, where it can be honed and improved somewhat. That is our position.

The Hon. A.L. McLACHLAN: I have a question for the mover of the amendment. I had the pleasure of attending, with the mover, a tour in New South Wales of some of the establishments there.

The Hon. M.C. Parnell: The pleasure?

The Hon. A.L. McLACHLAN: I am avoiding the word ‘pleasure’.

The Hon. M.C. Parnell: You used it.

The Hon. A.L. McLACHLAN: Did I use it? It must have been Freudian. It is late. I was trying to avoid it. As I understand it, the New South Wales act may have similar provisions in regard to being prescriptive in the body of the act, but I could be mistaken. Could the mover assist the chamber by advising whether the structure of this amendment was taken from another jurisdiction, in particular New South Wales?

The Hon. T.T. NGO: No, it was not. It was based on the Hon. Steph Key’s initial bill that was introduced in 2012, I believe—or maybe in 2014 (I stand to be corrected). If it was right for the Hon. Steph Key, I think it was right to introduce it. She argued there was merit in having some kind of distant restriction, though I cannot see what the problem is with how morals have changed between then and now.

The Hon. A.L. McLACHLAN: Whilst I have taken on board the submissions of the Hon. Mr Parnell I do note, for the benefit of the chamber, that either in local government regulations or I think in the New South Wales act—and again I could be corrected—these types of institutions are a key part of the success of their deregulation model. Whilst they have significant potential community friction in councils, the councils do regulate where the brothels can be located. If I recall correctly there is an overarching principle, particularly in relation to those places where religious services are conducted and schools.

I am minded to support the amendment; much like the Hon. Robert Lucas I would like to keep the amendment alive. I think it is significant. I suspect it can be improved. I am minded that it could well be too prescriptive and lack flexibility, particularly with different demographics and different layouts of suburbs. However, for the benefit of the mover I will be supporting the amendment standing in his name.

The Hon. M.C. PARNELL: I am grateful to what I expect are the thousands of people who are listening to this stream of the Legislative Council online, because they are certainly very active on social media. I do not want to do it like Q&A, but one question that has arrived in my inbox is that given the number of childcare centres, churches, schools, and all the other places that are listed in the honourable member’s amendment within the CBD, someone suggested there would be nowhere within the CBD that would not be 100 metres from one of the institutions that are mentioned. My question of the mover is: has he done any land-use analysis of whether there are any places in the CBD where a sex work establishment would be legal under this model?

The Hon. T.T. NGO: No, I have not had time to go and visit those places, but if you send me a list we could go together and check it out. In terms of your question, I have not. I know this amendment is not perfect—

The Hon. R.L. Brokenshire interjecting:

The Hon. T.T. NGO: I am not confident of getting this amendment through, but if the other place believes that 100 metres is too far or if there are amendments to reduce it, I do not mind. The main purpose of my amendment is to not have it too close to those institutions.

The Hon. K.L. VINCENT: I just want to clarify whether the Hon. Mr Tung Ngo just said that he has not done any ‘land-use analysis’ (I think that is the phrase the Hon. Mr Parnell used). He then said to the Hon. Mr Parnell that if he wants to give him a list of venues that might work they can go and ‘check them out’. Is that really a basis for good policy?

The PRESIDENT: Was that a question?

The Hon. T.T. NGO: Was that a question or a statement? I am confused.

The PRESIDENT: Go on Mr Ngo.

The Hon. T.T. NGO: What was the question again?

The Hon. K.L. VINCENT: If you have not actually looked at the impact that this amendment would have in terms of having 100 metres in the CBD, and you have not analysed what that would affect, you then want the Hon. Mr Parnell to tell you which venues might work and then you can go with him and check them out. It just does not seem very solid to me.

The Hon. T.T. NGO: As I said, I have not done those analyses that you mentioned, but I know it will impact on childcare centres and it will impact on people who go to those places of worship. I know there will be an impact. In terms of checking out whether it impacts on those businesses or places, I have not looked into that, but I am confident that, if you have a brothel too close to those institutions, it will have an impact on the people who go into those places.

The Hon. P. MALINAUSKAS: The Hon. Ms Vincent’s remarks provoke me to again make a very simple point. These amendments are very simple and clear and there is only one question before each of us as we cast our votes on this particular amendment this evening, and that is: do we think brothels should be next to places like childcare centres—yes or no? If the answer to that question is no, I think it is pretty basic that we vote against it.

The Hon. J.M.A. LENSINK: I want to respond. I am a little bit tired in this debate of certain members who have a certain position on this, putting words in the mouths or intent in the way that a number of us are voting on these things, so I reject that sort of characterisation of any of the motivations behind not supporting the Hon. Mr Ngo’s amendments.

The Hon. T.T. NGO: If you read my amendments, I made it very clear. These premises—and I listed them, like childcare centres—mean:

… premises in which more than four young children are, for monetary or other consideration, cared for on a non-residential basis apart from their parents or guardians.

I list other premises, too. Potentially, if this amendment does not get up, a brothel can be opened really close to a childcare centre. It is as clear as that. It is listed in my amendments.

The Hon. J.M.A. LENSINK: There is only one person in this room who has really got a good understanding of planning laws and that is the Hon. Mark Parnell.

The CHAIR: I will just make the point that sometimes, even though it is open and people speak as much as they want, it does not really serve any purpose to respond because then somebody else wants to respond to that and onwards.

The Hon. D.G.E. HOOD: I will be very brief. The LGA themselves do not have confidence in the planning issues’ capacity to deal with this. They have said that in their letter.

The Hon. J.M.A. LENSINK: That was actually before the amendments were passed to legislation last year. They wrote that before amendments were passed.

The Hon. D.G.E. HOOD: I understand.

Members interjecting:

The CHAIR: The Hon. Mr Hood has the floor.

The Hon. D.G.E. HOOD: Anyway, I have made my point and I think I have been over it a number of times.

The committee divided on the new clause:

Ayes: 8

Noes: 13

Majority: 5

AYES
Brokenshire, R.L. Hood, D.G.E. Lee, J.S.
Lucas, R.I. Malinauskas, P. McLachlan, A.L.
Ngo, T.T. (teller) Stephens, T.J.

 

NOES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hunter, I.K. Lensink, J.M.A. (teller) Maher, K.J.
Parnell, M.C. Ridgway, D.W. Vincent, K.L.
Wade, S.G.

 

New clause thus negatived.

New clause 21B.

The Hon. T.T. NGO: I move:

Amendment No 6 [Ngo–1]—

P age 6, after line 14—Insert:

21B—Insertion of section 25B

After section 25 insert:

25B—Restrictions on advertising commercial sexual services

(1) A person must not, in a prescribed area, advertise the provision of sexual services on a commercial basis.

Maximum penalty: $2 , 500.

(2) An owner or occupier of premises located in a prescribed area must not cause or permit a person to advertise, at or on the premises, the provision of sexual services on a commercial basis.

Maximum penalty: $2 , 500.

(3) For the purposes of this section, a person advertises the provision of sexual services on a commercial basis if the person—

(a) places or displays a sign in, or that is visible from, a public place that promotes the provision of sexual services on a commercial basis; or

(b) distributes to the public any unsolicited leaflet, handbill or other document, that promotes the provision of sexual services on a commercial basis; or

(c) take any other action that is designed to promote the provision of sexual services on a commercial basis.

(4) In this section—

prescribed area means—

(a) an area that is zoned ‘residential’ by or under an Act relating to planning or development; or

(b) an area within 200 metres of protected premises (within the meaning of section 25A); or

(c) any other area prescribed by the regulations for the purposes of this definition;

sign includes a painted or printed sign, lettering, image, signboard or visual display screen. 

The main purpose of this amendment is to protect children from the advertisement of the provision of sexual services on a commercial basis. It aims to do so by making it an offence to advertise in certain areas, namely residential areas, within 200 metres of a school, childcare centre, kindergarten and premises that provide religious services, such as mosques and temples. By advertising, I mean signs that are visible from public places, unsolicited leaflets, or anything else that promotes the provision of sexual services on a commercial basis.

In moving this amendment, I have tried to make the bill more in line with general community expectations that children not be exposed to advertising of commercial sexual services, particularly near premises that they go to frequently. I am talking about their schools, kindergartens, childcare centres and their homes. From complaints I received about prostitution when I was a councillor, I am fairly confident that people generally do not want advertising of this nature near those premises.

I know that I am not the only member who has been concerned about advertising of the provision of sexual services on a commercial basis, and other honourable members have indicated tonight and previously that they are in support of my amendments. I urge honourable members to support this amendment.

The Hon. M.C. PARNELL: My approach is very similar to the approach on the locational restrictions that were proposed in the earlier amendment. This is an area where I think there are probably two regulatory mechanisms that can be used. One is the planning rules, and they do dictate where signs can be located, billboards and things like that, but the other one is the actual content of the ads and whether they are particularly offensive to people.

I do remember a little while ago, having small children in the back of the car saying, ‘Daddy, what does “need longer sex” mean?’ I googled it to find out what happened with that and those signs all came down. Back in 2008, the Advertising Standards Bureau had a hearing and decided that those signs were no longer appropriate and they made them take them down.

I am not an expert on the Advertising Standards Bureau mechanism, but it seems to me that there is a two-pronged attack here. If the content of signs is offensive, there is a body whose job it is to regulate them. It is, as I understand it, a complaint-based mechanism. If you complain, they will look at it and maybe take it down. If it is about the size or the location of the sign, then the planning laws can deal with that, so I do not think this amendment is necessary.

The Hon. R.I. LUCAS: With the greatest of respect, I disagree completely with what the Hon. Mr Parnell has just said. He was highlighting earlier his opposition to the planning amendment on the basis that, essentially, these brothels will not have any signs on them or anything. I think he completely misunderstands the legislation that we have before us; that is, because it is going to be a decriminalised activity and these premises are going to have the imprimatur, at some level, of the parliament eventually, you are going to be able to advertise a brothel as a brothel, or as a sexual services paradise, or whatever it might happen to be.

So, if you happen to have a place next door to your home in the leafy suburbs, wherever that might happen to be, even though you have chopped the trees down, the person next door might be able to have a sign up, under the legislation, that highlights the fact that it is a brothel or however they want to term their particular premises.

In the absence of a provision in here which seeks to regulate advertising in some way, you have this relative free-for-all in terms of advertising what is essentially a service that is going to be less regulated than a tattoo parlour, a second-hand premises or a liquor licensing establishment, as the police commissioner has pointed out. That is the first point that I make in relation to advertising.

I am less convinced about the actual detail of this particular amendment of the Hon. Mr Ngo than I am about some of the others. I am very convinced about the need for some restriction, but I have a completely open mind in relation to how you would actually do it. What he is seeking to do here is to stop this sort of advertising in residential areas, and I support the intent there. I still have very much an open mind in relation to how that would actually operate in the others, the 200-metre provisions under subclause (b), prescribed areas, and others.

The whole notion of the billboard that the Hon. Mr Parnell talked about, the ‘need longer sex?’ one, the racy language sort of thing that went to the advertising standards, is not necessarily the sort of thing we are talking about here. It might not be racy language; it might be a complete description of, ‘Do you want to come along for sexual services?’ or whatever it is. It might just be a completely accurate description of what sort of service you can get at that particular brothel. It does not have to have racy language about needing longer sex or longer this or longer anything, which is an advertising standards issue.

If it is a factual representation of the services that are being provided in that particular brothel, then there is nothing within the legislation that prevents that. The whole notion that you can solve this by going off to the advertising council and fighting a case for a couple of years at the Advertising Standards Bureau has hairs on it in relation to the practical problems that families and others will have, which is the issue that the Hon. Mr Ngo is talking about. At the local level, that is the sort of issue that they actually want to see resolved.

I will support the amendment. As I said, I have an open mind in relation to the precise drafting, and perhaps if it gets to the assembly there might be a better endeavour in terms of drafting some restrictions, but surely to goodness there has to be some restriction in terms of the advertising of commercial sexual services generally, otherwise it is going to be Rafferty’s rules.

The Hon. D.G.E. HOOD: Clause 21 of this bill, which we have now passed, repealed section 25 of the Summary Offences Act. The reason I bring that up is that that is the part of the act that specifically relates to the soliciting of prostitution, whether it be by word of mouth or whatever it may be. Of course, this bill takes it a step further, in that by abolishing that section, as we have done in clause 21, there are no formal restrictions at least, no legal restrictions, on advertising of prostitution.

This will come down to individual members’ views on whether that is a good thing or a bad thing, but I have significant concerns about it. Members may recall, if they did a trip to the Gold Coast around 10 years ago (I am a bit rubbery with the exact time), that they had just introduced a new set of regulations, or reduced their regulations, or something, up there with respect to their advertising for prostitution services.

I can tell you that, from memory, the advertising was extremely explicit outside the premises in particular, not so much billboards or big advertising but certainly on premises there was very explicit, virtually naked (typically) women on these signs, with a very clear invitation to what was available and to come in, and even in some cases the amount it would cost for particular services was advertised.

They were not explicit—this gets a little bit crass, but we are all grown-ups here, I am sure—things like, ‘hand, $50’, ‘mouth $80’, or whatever it was. That is what I believe we will see should there be no restrictions on advertising in South Australia. We have seen it elsewhere. They have since, to their credit, in that part of the world wound that back. The advertising is no longer as explicit there. I am rubbery on this, because I have not looked into the specific details, but legislation has been passed in the last decade or so that has wound that back, and I give them credit for that.

For that reason, we believe restrictions should be in place. The Hon. Mr Lucas again said it well: the amendment proposed by the Hon. Mr Ngo is not perfect, I do not think, but it is clearly a step in the right direction and for that reason we will support it.

The Hon. R.L. BROKENSHIRE: I ask the mover to expand. Given that we are here for the long haul we might as well do this very thoroughly and actually expand on the situation so that we get everything on the public record because, whilst I have a lot of respect for the Hon. Mark Parnell, I do not see him as the guru, the be all and end all, for planning areas, I am afraid.

If you leave this chamber right now and drive down the Main South Road, heading up towards where the roadworks are occurring at the bottom of the Southern Expressway right now, less than 150 metres from a church—I think it is an Anglican church, but it is a church—and turn right at the traffic lights you go straight into a residential area. You will see two or three old wooden chairs, a car—a Ford or a Holden, I cannot remember—with a sign on the back of it that says, ‘massage girls required’, guaranteed so many dollars an hour. You will see a heap of balloons there, all the colours of the rainbow, and you will see a door always open and a few women walking around, and it says ‘massage’. It goes on at 2 o’clock in the morning, at 3 o’clock in the morning, at 9 o’clock in the morning, and so on. It is more than a massage there, I think.

At the moment, whilst it is illegal we get away with that, and kids have to walk past that with their mums, with their dads and with their guardians.

The Hon. M.C. Parnell: What are the kids doing out at three in the morning?

The Hon. R.L. BROKENSHIRE: Well, at 9 o’clock in the morning they are going to school, and they are walking past this place, with an open door, and you can see in. You only have to stop at the traffic lights and look in there and you can see that it is more than a massage.

My question is: will this legislation knock out all of that, or are you confident that it will be an improvement on what we have at the moment? What we have now is a situation where everyone just turns a blind eye to it and lets it go on its merry way, and it is wrong. I ask the mover whether this will help close down some of that nonsense, because the balloons, the chair and the open door are more than a massage.

The Hon. T.T. NGO: I am hoping that my amendment will remedy the current situation. There are no guidelines at the moment where those services can be directly advertised in terms of massage. I am hoping that with these amendments at least there is a provision in there so that the authority can use it as a guide to prosecute whoever promotes commercial sexual services, whereas currently there is nothing in the legislation that prosecutes people.

The Hon. T.A. FRANKS: This may shock the honourable mover, but I have a lot of sympathy for his amendment. At the moment, as the Hon. Robert Brokenshire just noted, we have flyers that are often thrown around on streets, as litter, asking for girls to do bikini massage. I see those leaflets in the hundreds on our city streets all the time.

The Hon. R.L. Brokenshire interjecting:

The Hon. T.A. FRANKS: I understand that it is near the Entertainment Centre.

The Hon. P. Malinauskas interjecting:

The Hon. T.A. FRANKS: The Hon. Peter Malinauskas interjects with ‘Get used to it.’ My point is that is actually not a brothel, that is not a sexual service: that it is a massage service. It litters as its business practice. I think it is reasonably unethical, and I am surprised that the council and the police have not pursued that business for the way that they promote themselves to date. I do have sympathy, and I do think that advertising of this nature should be discreet, and it should not be in the faces of those who do not wish to see it.

What I would point out to the mover of this, though, is, yes, as the Hon. Mark Parnell said, we do have standards around outdoor advertising. The public can make complaints, and those complaints are acted upon, but we already have those sorts of leaflets, which are not breaking any laws other than the littering ones because they are not a sexual service as such. They are a massage service and calling for so-called bikini masseuses. However, I would love to see the littering issue taken up by both the council and the police. The Hon. Peter Malinauskas might look at me with disdain at this, but I am quite serious about that.

I am also quite serious when I see the massive gentleman’s club billboards (almost) in some locations, which have women in demeaning positions. I think that is absolutely something that people should be able to complain about. I think we have to have a system that is sensible. In this, we have to have a system that does not put inappropriate things in people’s faces. The way you do that, of course, is to use the existing laws and police them. At the moment, they are not being enforced and policed, so I can see why members would have concerns that these laws would not be enforced and policed.

My concern here, though, is that most of the advertising for sexual services is done online, so how does the member envisage that a geographical position will account for this online advertising? That online is done through social media, that online is done through websites, and that online is done through geographically targeted ads to the smart phone. Does his amendment cover those particular advertisements or not? That is my question.

The Hon. T.T. NGO: The answer is no. This only applies to physical advertising like billboards or signs. If you are carrying a phone that has advertisements for sexual services, it does not apply. It only applies to advertising, like you said, that is right in people’s faces.

The Hon. J.M.A. LENSINK: My reasons for opposing this are very similar to the previous amendment in that I think that these matters can be appropriately dealt with partly through the existing planning laws—I understand that advertising here in residential areas is not permitted anyway in most instances—but also through the new state planning commissioner, who would be more than adequately placed to develop guidelines that will assist councils on this matter.

The Hon. P. MALINAUSKAS: I hate to be overly simplistic about this, but I think this is the opportunity to raise these questions. The previous amendment dealt with the issue of proximity of brothels and other sex workers’ locations to particular institutions, like childcare centres or kindergartens, for instance.

My question is to the Hon. Mr Ngo or the Hon. Ms Lensink. Now that this committee has formed the view that that is permissible, notwithstanding my own vote on the matter, would I be right to say that if this amendment is not successful, we could have a situation where we have a brothel, for instance, literally next door to a kindergarten or a childcare centre and, without the success of this amendment, we would then have explicit advertising occurring in and around or on that particular location?

The Hon. J.M.A. LENSINK: I think one of the things that has been missed in all of this debate, too, is that under the current regime, where a number of these things are illegal, applications are put to councils, and they are not actually factual about what the purpose is a lot of the time. So, you can end up in situations where, because it is not completely transparent, council is not aware of what it is actually assessing. Under a decriminalised model, I think there will be much more transparency about applications.

My understanding is that with a change of use of a premises, it will be for the council to be able to determine each application on its merit. If, say for instance, you have the childcare centre in situ and someone applies to convert a chicken shop into a brothel, then that will be a matter that the council is able to assess against its particular policies and determine whether that is appropriate or not. That would be a decision for the local body.

The Hon. T.T. NGO: I disagree on that. My previous amendments clearly identified the term ‘sexual services’. If you have not got that definition, council is going to have a hard time to determine whether an advertising sign is one for sexual services or not. My concern is that, if you do not have a provision restricting advertising of sexual services, then council will just apply development and planning laws in terms of whether a sign complied with the area or not. If people have an existing sign with an existing right, to me a brothel can come along and advertise their sexual services on that existing sign or billboard.

The Hon. J.M.A. LENSINK: I do not think that is correct. We have had situations in this state that have ended up in the media with councils determining all sorts of things in relation to a particular business and how it may operate, in particular—I am not quite sure what the terminology would be—in relation to encumbrances and things, whether it is A-frames, sandwich boards or particular flashing lights.

There have been quite a few examples of that over the years where councils have stepped in and said, ‘You can’t use those particular means of advertising. You can’t stick things on the footpath. You can’t have flashing lights.’ I think councils have quite a number of tools in the toolkit. I again reiterate that the State Planning Commission will be in a very good position to assist with the development of this rather than us developing these in a much more ad hoc manner, as I think these amendments do.

The Hon. R.L. BROKENSHIRE: I have a question of the mover of the bill, based on her input on the Hon. Mr Ngo’s amendments. You are talking generally about planning, you are talking about state development, and you are talking about councils. Do you accept that under this bill, if prostitution and brothels are legalised, individual councils will be able, within their planning capacity, to make a decision across their council area that any business requesting approval for sexual services will be a prohibited development within that area?

At the moment, when they do their planning and they put it up for approval to be signed off ultimately by the minister, they have prohibited developments, they have consent and they have the automatic development approvals, because it complies. So they have complying, non-complying and prohibited.

Are you saying that the state government, through planning, is going to have to take control of all the sexual service applications or is it going to be left to individual councils? If it is going to be left to individual councils, when they do their planning assessment reports, will they have the right to actually make a decision—like Marion, Tea Tree Gully, Sturt or whoever else; hopefully, in my case, Alexandrina—to actually say that sexual service applications will be prohibited developments? What are you actually saying?

The Hon. M.C. PARNELL: I will answer, if I may. The honourable member is correct in terms of concepts but the language has changed. I do not expect people to be experts in the language—and I have to get used to the new language under the Planning, Development and Infrastructure Act—but, in a nutshell, the question is: can local councils zone areas of land to prohibit certain activities or encourage other activities?

The answer is yes and no. The yes bit is that the council can initiate changes to zoning, they can initiate changes to the types of activities that are encouraged or discouraged, but the new system—and we spent a little bit of time debating the planning bill, if you recall—still retains a fundamental right of the minister to basically veto anything that a council might want to do. Similarly, if a minister does not think the council has gone far enough in terms of its changes to planning rules, the minister can step in. To that extent, it is not that much different under the new system to what it was under the old.

It is often a confusion. People say the council is responsible. Well yes, they do the investigations and they will often draft the changes to the planning rules, but at the end of the day it goes to the minister, and the minister does not have to accept and the minister can change it. The work that the Hon. Michelle Lensink and I do on the Environmental Resources and Development Committee is often hearing from local councils who are grumpy that the minister has overridden them and has made changes to the planning rules in their area that they are not happy with. The buck stops with the minister, I think that is the simplest answer.

The Hon. R.L. BROKENSHIRE: I have a supplementary question, just for clarification for the record. If this chamber approves this bill tonight, I take it that my learned colleague is saying that even if a council—democratically elected with a planning panel and all the rest of it—says, ‘No, we’re going to bring in a planning assessment report or plan that we asked the minister to sign off on that says that in this council area it will be a prohibited development if it is for sexual services,’ that the minister of the day ultimately signs off over and above that. That is, the minister has ultimate say and can override the council.

The Hon. M.C. PARNELL: The short answer is yes. I am happy to go back through the Hansard and identify how everyone voted on that. I am not happy with that arrangement but ultimately the parliament, in its wisdom, decided that the minister would have the final say. So yes, you could have a council that wanted to take a hard line against these types of businesses and the minister could override them. That is just how it is.

The Hon. K.J. Maher: This clause is advertising, not the premises.

The Hon. M.C. PARNELL: I know, the clause is advertising.

The Hon. S.G. Wade: That is the question that was asked.

The Hon. M.C. PARNELL: I was asked a question. I do just want to make a brief comment on the advertising. I do not pretend to know a lot about this industry, but travelling around you might see a sign on a building and it might say ‘Mary’s Place’ or something like that. Presumably, there is maybe an online presence, or the people who need to know what sort of services are offered at Mary’s Place know about it, but it strikes me that the way this amendment is drafted—

The Hon. R.I. Lucas: It sounds like a church to me.

The Hon. M.C. PARNELL: The Hon. Rob Lucas interjects that it could be a church. The words talk about ‘advertising the provision of sexual services on a commercial basis’. Where it seems slightly misplaced to me is that this amendment might cover explicit descriptions of services offered, but if the sign was ‘Mary’s Place For a Jolly Good Time’ (I do not pretend to give the industry advice on how they should promote themselves), if it was just something that those that need to know or want to know know and for everyone else it is just a sign, I am not sure this amendment gets us very far at all. I appreciate what the member is doing and I am not saying open slather at all. I want to see controls over the sort of advertising provided because some of it could be incredibly inappropriate and we do not want it, but this is not the mechanism for doing it.

The committee divided on the new clause:

Ayes: 8

Noes: 13

Majority: 5

AYES
Brokenshire, R.L. Hood, D.G.E. Lee, J.S.
Lucas, R.I. Malinauskas, P. McLachlan, A.L.
Ngo, T.T. (teller) Stephens, T.J.

 

NOES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hunter, I.K. Lensink, J.M.A. (teller) Maher, K.J.
Parnell, M.C. Ridgway, D.W. Vincent, K.L.
Wade, S.G.

 

New clause thus negatived.

New clause 21C.

The Hon. T.T. NGO: I move:

Amendment No 7 [Ngo–1]—

P age 6, after line 14—Insert:

21C—Insertion of section 25C

After section 25 insert:

25C—Council may make by-laws relating to advertising commercial sexual services

A council under the Local Government Act 1999 may, with the objective of protecting children, protecting public amenity and minimising nuisance or serious offence to ordinary members of the public, make by-laws prohibiting or limiting advertising relating to the provision of sexual services on a commercial basis in the area of the council.

The reason for this amendment is that council is very often at the forefront with local residents. I want to give local government the power to manage the advertising of commercial sexual services. I think it is very often a decision that has been made at a higher level, especially with a new planning law. Potentially a decision can be made from somewhere where they may not understand the local issues. The purpose of my amendment is to give local council some kind of control over the advertising of commercial sexual services.

The Hon. R.I. LUCAS: I am not 100 per cent convinced about this. I will nevertheless support it in the interests of trying to keep the debate alive. For those in another place I indicate that I have an open mind in relation to this. I accept the notion that there should be some restriction or significant restriction in terms of advertising whether it is through what we endeavoured to do unsuccessfully in the last amendment—which was in a state government legislation—apply those restrictions and another alternative to that which the House of Assembly might consider would be, in essence, giving a head of power to introduce regulations for greater restrictions, which is a model that has been used in other pieces of legislation and it might be something that could be considered here as well.

Whether giving councils the capacity to make by-laws which are in conflict with the state provisions—not in conflict but in addition to amendments which we might put into the legislation which has a state restriction, as I said, I am not entirely convinced about. Potentially my view would be that it is one or the other in relation to this but, as I said, nevertheless I will support this in the interests of furthering debate on the whole issue, with some restriction on limiting advertising of commercial sexual services.

The Hon. D.G.E. HOOD: I must say that my view is very much the same as the Hon. Mr Lucas. I am not convinced by this either, to be frank. I make no criticism of the mover, by the way, in fact I commend him on his efforts tonight. I see the weakness of this amendment is that if you devolve (if that is the right word) that power to council the problem is of course that you will have quite different views across different councils. You might drive from the City of Adelaide and cross Robe Terrace into Medindie which is in the City of Walkerville I think, and you might see very different interpretations of what is okay and what is not, and then on out to the next council, whatever that is, so that is the weakness as I see it.

My view is that I would much prefer to leave it in the act but, of course, this bill has removed that and we are past that section. I will not labour the point. I can see the numbers—it is 13:8 I think almost without having the debate. That is our view and we support the amendment.

The Hon. M.C. PARNELL: Without wishing to demoralise the mover, it is not just that particular issue around whether it is council by-laws or whatever because he is well-meaning and the values that he is trying to protect—talking about protecting children, yes; protecting public amenity, yes; minimising nuisance, yes. However, I have to say that ‘minimising serious offence to ordinary members of the public’—I am not sure what that means. What about ‘mild offence to abnormal members of the public’? I am not sure what ‘ordinary members of the public’ are and how the serious offence test would apply.

I expect that the Advertising Standards Council that we talked about before will have a methodology or something that they use or a test that they apply. I am just not convinced that council by-laws are the right place to be making a judgement call on what is ‘serious offence’ and who are ‘ordinary members of the public’. I do not think that works. I appreciate what the member is trying to do but my response is the same as with the previous amendment on advertising. I do not think we should support it.

The Hon. J.M.A. LENSINK: All the previous speakers have raised very valid issues. My other concern with this particular clause, and just having a look at my notes too on the previous ones—and I could perhaps have started by saying ‘insert my previous speech here’—in relation to why I oppose this particular provision.

My reading of it is that all of these local government matters are being inserted as clauses into the Summary Offences Act, which I do not think is the appropriate place for them to be. I am actually looking at our esteemed member of Parliamentary Counsel for a nod or shake. He is nodding. All of these local government matters are being inserted as clauses into the Summary Offences Act, when really they probably belong in the Local Government Act. That is an additional reason. Maybe it is the late hour and I did not alert myself to it, but I think it is possibly a misnomer for those clauses to be inserted there. It would be appropriate for the state planning commissioner also to look at these matters.

New clause negatived.

New clause 21D.

The Hon. T.T. NGO: This will be my final amendment. I move:

Amendment No 8 [Ngo–1]—

P age 6, after line 14—Insert:

21D—Insertion of section 26

After section 25 insert:

26—Power of police to enter premises suspected of being used for sex work

The Commissioner or a senior police officer, or any other police officer authorised in writing by the Commissioner or a senior police officer, may, at any time, enter and search any premises that the officer suspects on reasonable grounds to be premises at which sexual services are being, or have been, provided on a commercial basis.

The purpose of this amendment is to ensure that SAPOL maintains its power to enter premises suspected of providing sexual services on a commercial basis, even if it is decriminalised. The power is similar to the power that is contained in section 32 of the Summary Offences Act, but instead of suspected brothel, it refers to premises suspected of providing sexual services on a commercial basis.

Chief Inspector Gray, the officer in charge of the licensing enforcement branch which deals with prostitution, made it clear to the select committee that, while some people in the industry do not cause any harm, there are certainly organised crime elements. The chief inspector explained that, from her experience, organised crime will get involved in industries that involved a large amount of cash as it can be used in money laundering.

I am concerned that by removing this general search warrant as the bill proposes to do, SAPOL will not have an important tool available to them to deal with the organised crime elements that will still be in the industry when it is decriminalised. The Commissioner of Police, Mr Grant Stevens, indicated in his correspondence recently to the committee that SAPOL generally uses the power to enter and remain in a suspected brothel under section 32 of the Summary Offences Act, which this bill will remove.

The commissioner also advised that the licensing enforcement branch prioritised those searches on suspected brothels that have links to outlaw motorcycle gangs, organised crime, illicit substances or criminal activity, weapons, complaints from the public, human trafficking, sexual services or exploitation, and proximity to school and/or childcare facilities.

I know the Law Society has since responded to the commissioner’s correspondence on behalf of SAPOL, outlining the powers that SAPOL can use under various legislation. The Law Society mentioned that places that provide commercial sexual services should just be subjected to the general criminal law and other laws that apply to businesses. But this does not appreciate SAPOL’s concerns, given that organised crime elements are more likely to be associated with commercial sex work industry over other industries.

The Hon. R.I. LUCAS: I rise to support the amendment, but in doing so I support it on the basis that it is a surrogate, from my viewpoint. I think there should be greater power for the police in this area in terms of regulation or regulatory control. I have an open mind about whether it is exactly this in nature. There are questions that I have not had time to have answered, given these amendments were only tabled today. For example, in the other jurisdictions where there have been decriminalised sexual services providers, such as New South Wales and New Zealand, do police have these sorts of powers or similar powers or something different in terms of powers in regard to entering premises? I would be interested to know that.

The police commissioner has said in his letter that there is less regulation proposed for brothels than there will be for second-hand dealers and the tattoo industry. I am not sure what the powers of the police are in relation to those sorts of legalised industries that have greater regulatory controls over them. Are there other mechanisms where the police have regulatory control, different from the issue of the power to enter premises? The dilemma here is that I understand the police evidence that they have used their powers to enter places suspected of being a brothel, but they were illegal or unlawful activities. Now the parliament is going to be saying, ‘Hey, you lot are now decriminalised.’ To all intents and purposes they are similar to many other industries, and police do not have the power to enter those premises.

Maybe they do have the power to enter some premises like tattoo parlours and others—I do not know; I am not strong in that part of the law. I would be interested in having that sort of debate as the parliament further considers these amendments. As I said, I support the amendment as a surrogate for the position that, as the police commissioner has highlighted, there needs to be greater regulatory power and oversight. It may well be that it is in this area, in terms of the power of police to enter premises in certain circumstances. Maybe it needs to be more restrictive than what is currently drafted in this—that is, a higher threshold before they can exercise the power. I am open to that sort of debate and discussion.

I hope, if it gets to the House of Assembly, that members will apply their minds to whether this is the appropriate amendment or whether perhaps there is a tweaking of this particular amendment that might be more appropriate.

The Hon. D.G.E. HOOD: It will come as no surprise to members that the Australian Conservatives will be supporting the amendment. I made a substantial argument for this earlier on this evening when I referred to the police commissioner’s letter. I will not read out the whole slab I read out before, but I will read a line or two from the police commissioner’s letter to the chairperson of the select committee that dealt with this (so, presumably to the Hon. Ms Lensink). It specifically deals with the police powers to enter premises, which is the subject of the amendment. In part, it states:

Without comprehensive regulatory controls, SAPOL believes the draft Bill would not provide safeguards to ensure that people are not exploited, organised crime does not control the industry, and brothels do not become criminal sanctuaries.

People may have different views on that—and that is fine, you are entitled to that—but this is the Commissioner of Police. He is, presumably, an authority on these sorts of things, and he makes a very clear request for parliament to consider adding in some sort of safeguards with respect to police access to these places. So, we strongly support this amendment. Again, I do not think it is perfect, and I make no criticism of the Hon. Mr Ngo. Again, I commend his efforts this evening. I think this will provide fuel for members in the other place to consider and properly debate this bill, as they will have more time to consider the amendments than we have had, which I think will be to their benefit.

I urge members, even those who have voted against all the amendments thus far: if you can find it within yourself to support this one—not this specific amendment, but this general theme of amendment—at the request of the police commissioner, I think it is worthy of doing so.

The Hon. J.M.A. LENSINK: This matter was put very specifically to the committee by the police as a decriminalised model. When they said to us that it was up to us to determine what sort of laws should govern these areas, they said, ‘But we would like you to retain part 6 of the Summary Offences Act.’ I note that this amendment is very similar to that. It does not actually require a suspicion of an offence, and I think that is the key point.

The committee considered this very carefully and on balance decided not to insert it as a suggested amendment to the bill. We were not convinced by SAPOL’s evidence, I think it is fair to say. We were much more strongly convinced by the Law Society. The Hon. Dennis Hood asked me previously about this matter, and the deletion of it from the existing statutes, and at page 22 of the committee report we have listed there the existing provisions under other pieces of legislation under which the police can obtain searches. They specifically addressed this issue as follows:

The Law Society provided a list of the search powers available to the police under nine different State and Commonwealth Acts advising, ‘while the list is extensive, there may also be further search powers beyond this list’.

The list is as follows:

Offences Act 1953 (SA) sections s67; ss68-72;

Controlled Substances Act 1984 (SA) sections ss50;52;

Criminal Assets Confiscation Act 2005 (SA) ss 172-177;

Crimes Act 194 (Cth) sections s3E-3F

Criminal Investigation (Extraterritorial Offences) Act, 1984 (SA) section s54

Firearms Act 1977 (SA) section s32(3)

Migration Act 1958 (Cth) sections s487D-s487E

Serious and Organised Crime (Control) Act 2008 SA section s33

Summary Offences Act 1953 (SA)(Indecent Behaviour and Gross Indecency) section s23

I provide that list of the particular clauses under which the police have power of entry, and I clearly will not be supporting this amendment.

The Hon. M.C. PARNELL: I will be quick as well. The Hon. Michelle Lensink summarised the existing powers that the police have, but I think the main point she made was that the grounds for entry are that something that is being decriminalised is being undertaken. There is no need to have any suspicion of any illegal activity at all.

This clause is also known as the ‘don’t ever buy an old brothel’ clause because if the place that you have bought has ever been used as a brothel, it is covered by this clause. The words are ‘…if the officer suspects on reasonable grounds that their premises at which sexual services are being, or have been, provided on a commercial basis.’

The Hon. T.A. Franks: A hotel room.

The Hon. M.C. PARNELL: The Hon. Tammy Franks interjects, ‘a hotel room’. There was a place I am told that may have been a brothel on Light Square—I think it was Stormy’s—and I recall that the madam ran for parliament at one point. I am told that it has now been converted into respectable residential accommodation, and it would be most unfortunate if this clause would allow the police at any time to enter it because sexual services in the past had been provided at that location on a commercial basis. I know it is sounding quite extreme, and the logical response would be, ‘Well, they would never do that’, but I think it just goes to show that the drafting is nowhere near clear enough for us to be supporting something like this now.

The Hon. G.E. GAGO: My question is to the Hon. Michelle Lensink. My understanding is that if this bill were to be successful, then the police would retain the ability to be able to enter a premises that is providing sexual services on a commercial basis if there is a reasonable belief that there is unlawful activity occurring on the premises, so they would continue to retain that right.

The examples given are that if they suspected that money laundering was occurring in a brothel, they could enter the premises. If they believed that organised criminal activity was occurring in a brothel, they could enter the premises. For inappropriate or illegal use of minors, trafficking drugs, etc., police would continue to maintain the right to enter the premises, but they would not have the right to enter the premises just because the commercial activity was providing sexual services.

The Hon. J.M.A. LENSINK: Yes, that is correct. If the police had any suspicion that any of those offences had taken place, all of the examples that the honourable member has cited, plus many others, the police would have right of entry. The concern in relation to this amendment and the existing clauses in the Summary Offences Act that the bill has removed is that there is no requirement for a suspicion of an offence under existing laws and that would not continue under the bill, but would be reinstated by the honourable member’s amendment.

The Hon. T.T. NGO: My concern is that by removing the restriction it is just making the job of police really difficult. Their job is difficult as it is now and this will further make their lives difficult and that is why the commissioner personally requested in his letter to reinstate that, to make it clearer and make their job a lot easier in terms of dealing with the criminal activity element of this industry. To me, by removing it, it will make it a lot easier for the police to prove those activities that they suspect are happening. This is to make it clearer and to give the police more tools to deal with this criminal activity element in this industry.

The Hon. G.E. GAGO: With all due respect to the honourable member, if you extend that argument you would make the job of police easier if you extended their powers to be able to enter any place, anywhere and anytime for no reason at all. If you advance that argument, just give the police full powers to do anything they like. It is not a rational, logical way to resolve those issues of concern. I think their concerns are unfounded. The police already have powers. They will continue to be able to use those powers if there is reasonable belief. There does not have to be proof, there does not have to be evidence, just a reasonable belief that there is unlawful activity occurring on the premises.

The Hon. T.T. NGO: I think the police must have a real concern, especially for the commissioner to make the effort to write to all members of parliament about his concern in terms of the police powers being taken out by this bill getting up. My amendment is really to trust the police because at the end of the day they are dealing with the criminal elements of our society and we just have to trust them.

The Hon. T.A. FRANKS: I reiterate mainly what the Hon. Gail Gago has stated. This clause seeks to give the police powers to enter a premises in which a legal activity is taking place on the basis of a suspicion that a legal—a legal, not an illegal—activity is taking place. That is a nonsense. If we make sex work decriminalised, it is no longer a crime. If no crime is being committed, the police should not be able to enter the premises without suspicion of some other sort of activity that they believe to be a crime.

The Hon. A.L. McLACHLAN: I thought at this juncture I would make my position known. I will not be supporting amendment No. 8. As some of the speakers have indicated, I think it is incongruent with a legalised business, if this bill was to become law. Aside from other powers that may or may not be available to the police, if you accept the premise of this bill then they will be conducting a legal activity and, therefore, there would be no reason for the police to enter, other than under the heads of other acts.

Also, you can tie that back to a line of argument raised by the Hon. Rob Lucas, which is that if we were seeking to put controls around this sort of industry, then we would have adopted an approach as we did with the tattoo parlours. That is not the bill before us, so I do not think this clause, if inserted, would sit comfortably with the remainder of the bill.

New clause negatived.

Clause 22.

The Hon. D.G.E. HOOD: I have a question on clause 22. I think this is my last question for the night. I think I know the answer to this one, but I will ask it anyway of the Hon. Ms Lensink, if I may, just for clarification. Obviously, we have been through the debate about police entry and the police will lose that power should this bill become law. My question is about another level of authority and that is councils. Will councils have the power to enter these premises at all and, if so, under what circumstances?

The Hon. J.M.A. LENSINK: Well, they would have. Councils have a range of—

The Hon. S.G. Wade: Regulatory powers.

The Hon. J.M.A. LENSINK: Yes, thank you, regulatory powers, but I think the words I was looking for were that there are a range of statutes under which they are entitled to regulate particular businesses, in this instance, within their area. The one that comes to mind would be the health provisions that relate to kitchens and all those sorts of things.

The Hon. G.E. Gago: The number of toilets.

The Hon. J.M.A. LENSINK: Yes, the number of toilets. There are a range of those sorts of provisions that apply to local government. I do not profess to be an expert in this area, but I do know that they have council health inspectors and a range of other inspectors and there are also, sometimes, authorised officers under various other pieces of legislation that might be delegated, under the EPA Act for instance, from those other bodies. So, there are a range of those typical areas that they would still be regulating them under.

Clause passed.

Remaining clauses (23 and 24), schedule and title passed.

Bill reported without amendment.

Third Reading 

The Hon. J.M.A. LENSINK: I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes: 13

Noes: 8

Majority: 5

AYES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hunter, I.K. Lensink, J.M.A. (teller) Maher, K.J.
Parnell, M.C. Ridgway, D.W. Vincent, K.L.
Wade, S.G.

 

NOES
Brokenshire, R.L. Hood, D.G.E. Lee, J.S.
Lucas, R.I. Malinauskas, P. McLachlan, A.L.
Ngo, T.T. (teller) Stephens, T.J.

 

Third reading thus carried; bill passed.