Second Reading – Sex work Decriminilisation Bill 2021

I rise today to lead the debate for the Liberal-Nationals on the Sex Work Decriminalisation Bill 2021. This is a very important bill with wide ranging implications, and as one might expect, there have been a wide variety of opinions on the bill—people are either on one side of the fence or the other—but I think that is the beauty of our role as parliamentarians. We are in a position of great importance, and we must listen to all sides of the debate, regardless of our personal opinions and beliefs. I came to this place almost six years ago with a promise of listening to the community and taking their views into account. It is a role I take very seriously.

The premise of the bill sounds straightforward, to decriminalise sex work, but in doing so requires complex changes. There are over 80 clauses. I will spare the house from going through it clause by clause, but there are important points to be made on various elements of the bill. This is a serious piece of legislation, and it cannot be simply rammed through without appropriate scrutiny and enough time to properly debate and consider, which the Andrews Labor government has been doing all too often lately—that is, ramming things through without that proper time to consider and debate.

Clause 1 sets out the main purpose of the bill, which is to decriminalise sex work and provide for the reduction of discrimination and harm towards sex workers; initially repeal certain offences in the Sex Work Act 1994 and then repeal the rest of the act later; re-enact certain offences from the Sex Work Act 1994 into the Crimes Act 1958 and Summary Offences Act 1966; amend the summaries act of 1966 to provide for the regulation of sex work advertising and amend the Equal Opportunity Act 2010 to establish anti-discrimination protection for sex workers, including introducing a new protected attribute to protect people from discrimination on the basis of their profession, trade or occupation; repeal an exception permitting accommodation to be refused to sex workers; and make some consequential changes in other acts.

In clause 4 the government provides for a review of the operation of amendments made by the bill to be started three to five years after commencement. The review is intended to assess the operations of all amendments made by this bill and consequential regulatory and policy changes as they relate to sex workers and the sex work industry. According to the bill’s detail, matters for consideration in the review will be determined by the Minister for Consumer Affairs, Gaming and Liquor Regulation through terms of reference, and it is expected to consider whether the act has achieved its stated purpose to provide for the reduction of discrimination against and harm to sex workers and operation of any regulation or policies relevant to sex workers.

A review of such important and serious legislation should of course be conducted. What I do have an issue with, however, is the government is proposing a very wideranging time frame for this review. If the bill is passed in its current form, the review will start in somewhere between three and five years, and there is actually no set time frame in which the review must be completed and tabled.

I question why the bill presented is not more definitive. The implications of this legislation are going to have serious effects and impacts across several areas of the community, and I think there is a missed opportunity to provide more definite structure for this review. I am sure my colleagues in the other place will also have some things to say on this, and I hope that when we get out of this there is an admission by government that this review really does need to be commenced sooner than in five years and completed and tabled within a set time frame. If the government wants to make sure the right elements are in place to support these changes not only for the new workers themselves but for the wider community, we cannot allow such a vague review process to be in place from day one.

Moving on to clauses 8 and 10, we come to some serious changes regarding the safe sex practices employed by sex workers and their clients. This clause repeals section 18A of the Sex Work Act, which makes it an offence if a sex worker or client does not adopt safe sex practices, and also removes the requirement for mandatory testing for sexually transmitted infections. The purpose of this repeal is to remove, according to the government, a discriminatory, industry-specific public health offence. Now, for the life of me I cannot work out why it is discriminatory to make a law that a sex worker should perform their work safely and that a client should take precautions.

For example, stealthing will no longer be an offence. Stealthing is when a sex worker or client, unbeknownst to the other party, removes their condom during sexual intercourse. For those who think that this would be a sexual assault or some other offence under another act, based on the advice of the Police Association of Victoria and others I have spoken to it is not. For a government that purports that they are caring for Victorians, the removal of offences for not employing safe sex practices is mystifying. If those opposite were really interested in protecting vulnerable women and men that work in this industry and indeed clients of those workers, they would have transferred those offences for unsafe sex practices into existing acts instead of binning them altogether. It would be very dangerous for the framework and offences to be removed, considering the potential influx of new workers into this legalised industry.

The Australian Sex Workers Association told me the requirements for:

… mandatory prophylactic use or compulsory sexual health testing are incompatible with full decriminalisation of sex work.

They also went on to say that assuming that sex workers will not continue to engage in safe sex or sexual health testing if it was voluntary is incorrect. They claimed that mandatory policies in this area are counterproductive and that the voluntary practices work best, but they could not give me an ounce of evidence or point me to any studies to back this up. The evidence is anecdotal at best, and we must not rely on this when we make such important changes.

Whilst I accept that a lot of sex workers will take the right steps even without a mandate, it remains a fact that the new cohort of workers coming into the legal industry are doing so from the unregulated side of things, and we cannot assume that they will just do the right thing. I am not being alarmist here. I am speaking from 30 years of experience in the health industry as a nurse, and I have seen what happens when you have got rules and regulations backed by evidence and I have seen what happens when you do not. There is no evidence to say this is a safe approach.

Moving on now. To enable the decriminalisation of sex work changes are proposed to the planning controls. Home-based sex work businesses should not be allowed to operate without a permit subject to the same planning requirements as other home-based businesses. If sex work is to be treated as a normal job in Victoria, they should have to comply with all the normal requirements. A planning permit should be required, and neighbours should be consulted on any new business in the vicinity of their homes and given opportunity to object.

Further, the future repeal of section 21 from the Sex Work Act 1994 will allow brothels to apply for a liquor licence, and this introduces a very real danger, particularly for sex workers. It is in direct opposition to the government’s own report from the Prostitution Control Act Ministerial Advisory Committee, which states that the prohibition of liquor in brothels appears most closely related to the objective of promoting the welfare and occupational health and safety of workers. A ban on liquor in brothels may protect sex workers from undesirable behaviour of clients who are under the influence of alcohol, and the effects of alcohol on sex workers themselves include impaired judgement and lower diligence about personal health and safety. The committee stated:

The Committee recommends Government retain the restrictions on consuming liquor in a brothel. While reliable data on drinking patterns within the sex industry is not available, we do know that the environmental determinants of liquor-related harm include general workplace stressors, physical availability, the social norms defining its consumption, and the economic incentives that promote its use. Separating liquor and brothels has proved an effective measure to serve the public good.

The committee agreed that workplaces should be free from liquor-related harm, so I really do not know what reason the government has all of a sudden for allowing this. This discussion paper rightly raises concerns about unsafe working conditions for sex workers in both the licensed and unlicensed sectors. It raises concerns about the risk of occupational violence and the poor quality of security on working premises. It is contradictory to express concern for the safety and wellbeing of sex workers and then add alcohol to such workplaces, which is likely to increase the risks of violence and decrease safety and wellbeing for sex workers.

A review of the literature of alcohol use among female sex workers and their male clients published in 2010 reviewed 70 articles covering 76 studies. The review found that alcohol use by female sex workers and their male clients was associated with adverse physical health, illicit drug use, mental health problems and victimisation of sexual violence. A study from the Netherlands found that sex workers working in a context where alcohol was sold drank more than other sex workers and that clients’ use of alcohol increased aggression towards sex workers. Further, there are concerns among several groups that some brothel owners may adopt the practice of having their employees promote the sale of alcoholic beverages to their clients to drive up profits on the alcohol side of the business.

Aside from what I have already spoken about there are also several even more serious concerns that the Liberal-Nationals have. At this stage I would like to circulate and discuss the reasoned amendment that the Liberal-Nationals will be moving in relation to this bill, and I will discuss each of the four points in general. I move:

That all the words after ‘That’ be omitted and replaced with the words ‘this house refuses to read this bill a second time until:

(1) a redacted and de-identified copy of Ms Fiona Patten’s government-commissioned review is released to members to enable them to scrutinise the recommendations that have led to the proposed legislation;

(2) consultation occurs between the Department of Justice and Community Safety and Victoria Police to facilitate an objective definition of ‘near’ in relation to exclusion zones to remove any ambiguity and cause for community dissatisfaction when authorities are policing the law;

(3) the minister confirms what support programs and mechanisms will be put in place to support workers from a health and safety perspective; and

(4) consultation occurs between the Department of Justice and Community Safety and stakeholders (both individual and representative groups) on the proposal to remove the protection for landlords that currently allows them to refuse accommodation to sex workers if that worker wishes to conduct sex work within that accommodation’.

Three years ago the government asked Fiona Patten from the other place to conduct a review of the current sex worker laws and make recommendations for decriminalising sex work in Victoria. By the government’s own admission, Ms Patten’s report is the basis on which this discussion paper and the legislation now here on the floor in this place is based on. I have so many problems with this process.

Firstly, I would like to take this opportunity to remind the Minister for Consumer Affairs, Gaming and Liquor Regulation, who is not even present in the house to hear the debate on this bill, about the Sex Work Ministerial Advisory Committee. I wonder if the minister even remembers that committee. The committee’s role includes advising the minister about issues relating to the regulation, control and general operation of the sex work industry in Victoria. Now, I am no expert, but I would think if you were looking at how to reform the sex work industry, you might start by asking your own advisory committee instead of working with a member of the crossbench in the other place. What is even worse is that at a time when there is serious change afoot to sex work in Victoria the minister’s own advisory committee is dormant and all positions are vacant.

What possible reason could the government have to ask a crossbench member to advise them on an issue like decriminalisation, which Ms Patten has been on the record many, many times as wanting? I think it is clear: they want to get Ms Patten onside. It is clear to those on this side of the ,house and probably to those on the other side as well, that they need Ms Patten to pass pandemic legislation. The Andrews government continue to do these dodgy deals with Ms Patten so she will vote with them on legislation they are trying to force through. We have seen it with all the state of emergency changes and we are seeing it again this week with the pandemic legislation. It really is such a dodgy, dirty way of operating. If you need to do these deals to curry favour and get your undercooked legislation through this place, it just shows how this government operates.

In a submission to the discussion paper that was released following the review the victims of crime commissioner was absolutely scathing of the government’s review and their approach to the review. I will now quote directly from the submission, because it perfectly encapsulates the problems with the process undertaken:

… I want to express my dissatisfaction and disappointment with the review process:

the process has been a lost opportunity to transparently consider issues of violence and exploitation that sex workers experience in the industry and the most appropriate regulatory model to address these issues

a comprehensive report should have been made public to outline the review process, the stakeholders consulted, the research and findings, the proposed model, and the rationale for the regulatory model to be adopted

while the review was publicly announced in November 2019, stakeholders have only been given two weeks to consider complex and nuanced issues …

The report not having been made available to the public is a substantial concern. Now, I am very aware of the sensitive nature of the subject matter and that people that were spoken to by Ms Patten during compilation of the report will have more likely given full and frank information if they were assured that their personal details would not be made public. I accept that. But keeping personal and identifiable information private whilst at the same time allowing public scrutiny of the recommendations is entirely possible. The report could, I am certain, be de-identified and redacted as required. I have been told by people familiar with the report that it already exists in this format, so my question is: why has it not been released? This is very divisive legislation being proposed, and the proposition of changes to sex work in Victoria is very important to many people for a whole host of reasons. Members of this place cannot be expected to give this legislation the full and frank review it should be given when the very basis of it has been hidden.

Why do we continue to see legislation coming to the floor of this place in such an arrogant, rushed manner from this government? Even the victims of crime commissioner—a Victorian government officer—voiced their disappointment at being forced into such a narrow time frame to consider the Patten review and provide a submission. I bet this sounds familiar to those who are here, including my colleague sitting here in the chamber with me, the member for Ripon. We have seen the same with the health advice used to justify continual lockdowns and restrictions. They say they have done a report. They introduce legislation, but where is the detail to justify it? I could go on about this government’s claims that health advice around COVID-19 is released, but apart from a couple of pages of PR and spin and dozens of pages of public health orders there are no stats, there are no graphs, there is no modelling and so really there is no information at all. So in this case as well, with the Sex Work Decriminalisation Bill 2021, we again see legislation proposed without the basis for it being released. It is just not good enough from this arrogant government.

But moving on now, I take your attention to clause 28, which inserts a new division into the Summary Offences Act 1966 to establish a new set of street-based sex work offences. It is intended that these provisions will limit where and when street-based sex work can occur. It will be an offence for a person to intentionally solicit or invite any person to engage in sex work or loiter for that purpose in certain public places between 6.00 am and 7.00 pm. It sounds straightforward, doesn’t it? You only start to realise that it is not straightforward when you investigate the wording of new section 38B(1), which says:

… a person must not intentionally solicit or invite any person to engage in sex … in a public place that is at or near …

certain premises. The new section defines ‘certain locations’—government schools, children’s services, school premises et cetera—but there is no definition of near, and that is a huge problem that we have with this piece of legislation. When asked about clause 28 and the lack of a definition of near, the department told me that the term is intended to be non-explicit, in that the police will end up using their judgement on a case-by-case basis. When a law or regulation is in place the application of it must be equal or fair for all. When the distance from somewhere that a sex worker cannot legally work is not defined, you cannot apply the law equally and fairly to all.

The job of our hardworking and dedicated Victoria Police has already been made difficult enough through poor planning, lack of consultation and poor legislation, and here is the government now asking them to make things up as they go. Now, I am not suggesting for a second that the Victorian police members are not skilled or are unable to use sound judgement and decision-making skills, but this is too big an ask. What if Constable A arrested somebody 2 kilometres from a school for working as a sex worker, but Constable B did not think it was required when somebody else was 500 metres away? The community would be rightly angry about the disparity in application of the law, and the dissatisfaction would be directed at the police.

So again, we have a problem. The government are going to be putting the police into a difficult situation and have them deal with the repercussions, instead of the government doing their job and taking away ambiguity. When I put clause 28 to the police association they told me it was concerning that there was no definition. This arrogant government continually puts police in the position of having to bear the brunt of community frustration because of poor policy and becoming quite literally in some situations human punching bags. It is just not good enough to treat Victoria Police with such disdain and leave them to pick up the pieces.

The next part of the reasoned amendment concerns the support programs and mechanisms that will be put in place to support workers from a health and safety perspective. Clause 73 of this bill repeals part of the Public Health and Wellbeing Act 2008, which provides for a framework to manage infectious diseases within brothels and escort agencies. According to the government this framework is no longer required, as the Department of Health is developing a new public health and infection control framework for the sex work industry as part of the broader sex work reforms. The submission from the Victorian victims of crimes commissioner to the discussion paper, which I have quoted from earlier, I will quote again, because it is quite literally brilliant:

While the Discussion Paper states that decriminalisation doesn’t mean sex work will be deregulated, it is not clear what regulatory protections will be in place to ensure the health, safety and protection of sex workers in the industry.

So the commissioner flagged a massive issue around this in August and September, and she is absolutely spot on. What is the government’s response? They bring a bill into this place and try to ram it through without having a sex work specific framework of protection in place, saying existing regulatory systems will be sufficient.

The ACTING SPEAKER (Ms Settle): Order! Under the resolution of the house, the time has come to break for lunch and cleaning. The member will have the call when we return to this bill.

Sitting suspended 1.00 pm until 2.01 pm.

Just before lunch I was referring to the fact that the government, as part of this bill, will be repealing the infectious diseases health framework and will not be putting in place something to take its place for some time. The government has stated that in the interim this bill will:

regulate the sex work industry just like any other industry, by agencies such as local government, Worksafe and the Department of Health

Now, as a former nurse with some health system experience, this is just a red flag for me. I am really worried. To again quote from the victims of crime commissioner:

… it is potentially naïve to hold other industries up as safe workplaces that can be replicated in the context of the sex work industry and its complexities of workplace safety. It is evident that many … non-stigmatised industries … cannot always provide a safe workplace for their workers.

By the government’s own admission during the bill briefing, they still have not worked out what the framework will look like and what support mechanisms and elements the framework will contain. Again, they are proposing to remove a framework designed to protect the health and safety of all workers in the sex work industry before even having conceptualised a new framework. It does not even make any sense.

Not only do they not know what the new framework will contain but they also have no idea about the capacity of the interim protections to sufficiently work. It is very difficult to get an accurate idea of how many sex workers are working illegally in Victoria. The most recent estimate of the size of the unlicensed sex industry is from 2016, and it was estimated at that time that there were around 500 illegal brothels compared to 91 legal brothels. And as far as sex-based street work, which is currently illegal in Victoria, goes, recent estimates from both the Department of Justice and Community Safety and the St Kilda Gatehouse, a not-for-profit group that provides support and safety for women involved in sex work, put the current number at around 15 to 30.

This ambiguity is an issue when decriminalising the industry without having health and safety protections in place. The government have no idea about the numbers of workers coming into the system and if the proposed protections will be up to the task. This really is too important a bill for the government and Fiona Patten to basically say, ‘Let’s decriminalise sex work now, hope the current protections are up to it and work some new ones out later’.

People who engage in sex work fall into a number of categories, but for many it is the result of limited choice. People may feel locked into the industry because they are homeless or out of work or for a number of other reasons. We really should be seeing in this bill support for people working in the sex industry by resourcing three areas that feature most prominently in literature on best practice for exiting from sex work: drug treatment; housing; and training, education and employment. An Australian survey of sex workers conducted by the Crimes and Misconduct Commission in its review in Queensland found that most sex workers indicated they would like the opportunity to retrain for another career. Now, we must allow them to leave the industry if they so wish but not just cast them aside when they do so. We must support them, and I see no evidence in this bill that the government has appropriate plans in place for that.

The final element of our reasoned amendment concerns clause 36, which proposes to repeal parts of the Equal Opportunity Act 2010 which provide that it is lawful for a person to refuse accommodation to another person on the basis that they intend to use it for lawful commercial sexual activity. According to the government, repealing this is intended to address discrimination against sex workers in accommodation settings. In the Equal Opportunity Act 2010, division 5, discrimination in accommodation covers the settings in which a person cannot withhold accommodation from a person or persons depending on the purposes of that accommodation. As one would expect, there are several exceptions to these rules—for example, section 58A in the Equal Opportunity Act states that:

A person may refuse to provide accommodation to a child or a person with a child if the premises … are unsuitable or inappropriate for occupation by a child.

There are also religious exemptions to allow that a person may refuse to provide accommodation to another person in a hostel or similar institution established for the welfare of persons of a particular age, sex, race or religious belief if the other person is not of that sex, age, race or religious belief.

The removal of a person’s right to not rent their property to somebody if that person intends to conduct legal sex work is something that concerns me greatly. During the consultation I have done on this bill, clause 36 has been raised with me by many landlords, private citizens and industry bodies. I have spoken to property owners who reside in or own properties near legal brothels currently, and they have raised with me their concerns—people coming and going at all hours of the night, the type of people frequenting these establishments, the damage and disruption caused and concerns about such facilities being near family homes. Now, I understand the changes to the circumstances for these people are outside the purview of this bill, but the real-world concerns of these people are being mirrored by many in the community.

The Andrews Labor government are setting a very dangerous precedent by proposing to take away the rights of property owners to not have legalised sex work undertaken in their property. The existing protection that is afforded to property owners was created to solve an issue, and I cannot see anything to indicate that the problem no longer exists. This protection is about more than just the protection of a property owner’s philosophy or beliefs; this is about an ordinary person’s right to decide who to rent their property to.

Yet again we see the Andrews Labor government trying to ram through legislation. There is no evidence that the government has consulted with individual stakeholders and stakeholder representative groups, and this, again, is another massive red flag. There are just so many areas of concern for us in this bill. If the government was serious about doing a good job rather than rushing legislation through to appease a member of the crossbench in the other place, they would withdraw this bill and try again, but we know they will not. We know they like to rush bills through without oversight. We know they like to just push bills through without time to consult with communities. That is what I heard the commission say in their report. It is not acceptable and it is not democratic. This is simply because they absolutely detest differing opinions or scrutiny of their work. There are so many concerns with this bill: there are health concerns, there are concerns with public safety, there are concerns for the safety of the sex workers. For these reasons, if our reasoned amendment is not supported, the Liberal-Nationals coalition will be opposing this bill.

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