The thirteenth attempt at sex work law reform in South Australia has failed and sex workers both locally and nationally have expressed their outrage. The Bill, originally aimed at fully decriminalising sex work, was defeated in the House of Assembly last Wednesday with 19 Ayes and 24 Noes. As as a result, sex workers will have to continue working under criminal laws, without any industrial, health and safety protections, again leaving us vulnerable.

Sex workers and sex worker organisations have fought tirelessly for legislation that protects us in the work we do. In both Queensland and the Northern Territory, Bills that fully decriminalise sex work have been introduced recently. We are not alone in advocating for the full decriminalisation of sex work: it is part of a global movement supported by sex workers and human rights organisations.

All the state-based, peer sex worker organisations, including Scarlet Alliance, Australia’s national peak sex worker organisation, undersigned a letter of support written by SIN – which advocates for South Australian sex workers – calling all South Australian Parliament Members to support the Statutes Amendment (Decriminalisation of sex work) Bill 2018 in its original form. Our calls were not heard.

SIN general manager Kat Morrison summarised the feelings of sex workers like this: “South Australian sex workers are devastated. We are now faced with the consequences of having to continue to live and work in a criminalised environment and having to prioritise police evasion over our health and safety”.

I believe there was overwhelming public support in South Australia for this reform. Earlier this year, an online poll of 5335 people conducted by the ABC Adelaide found 93 per cent supported decriminalisation. Liberal Member for Adelaide, Rachel Sanderson, conducted a questionnaire that attracted about 1000 responses: around 82 per cent supported decriminalisation.

The defeated Bill was voted on conscience – not governed by party lines – but it seems many politicians did not represent the views of their electorates.

This is a pattern: previous attempts at law reform in this area have failed due to similar politics, despite the public’s apparent support for decriminalisation. Why? Greens MLC Tammy Franks called out “political games played by the current crop of Labor politicians, who refuse to even debate better conditions and remove the criminalised status that puts women in danger every single day in SA”.

This points to factional issues: including the concern of many in the Labor Right to tow the factional line at the expense of the safety of sex workers and workers’ rights generally. Are politicians fulfilling their duties if they aren’t representing their electorates accurately, or the rights of workers, and in fact prioritising their own careers over community concern and safety?

President of SIN and long-time campaigner for decriminalisation in SA, Ari Reid says: “Every year we get more and more support for decriminalisation of sex work. When are politicians going to stop wasting time and resources and start listening to their constituents? Sex workers in SA are not going anywhere and we will continue to campaign for our human rights and our right to feel safe at work.”

The long road to reform

The recently defeated Bill has a long history. It was introduced in 2018 by Franks, a long-time supporter of sex worker rights. The previous attempt at reform was proposed by Labor MP Steph Key, now retired, and, in 2015, by Liberal MP Michelle Lensink. The previous and current Bills have always attracted multi -arty support, which is notable. The original Bill, as introduced, was supported by sex workers.

In 2015, a Select Committee of the Legislative Council was established to inquire into and report on the Statutes Amendment (Decriminalisation of Sex Work) Bill, 2015. In 2017, the committee recommended that the Bill pass without amendments. The current Bill passed the Legislative Council earlier this year, but with several amendments that went against the recommendations of the committee.

That committee had weighed submissions and evidence and concluded that decriminalisation would remove the stigma and associated discrimination from sex work, and provide workers access to the rights and protections held by all other workers in legitimate employment. This goal can only be achieved by removing police as the regulators of the industry.

However, earlier this year amendments were made to the Bill in the Legislative Council which allowed police to enter anywhere commercial sex occurs if they suspect a crime has been, or will be, committed – and without a warrant. This is counter-productive because policing sex work actually discourages sex workers from reporting crimes committed against them, undoing the benefits of decriminalisation.

There has been cross-party support for law reform in this area for many years. Photo: Tony Lewis/InDaily

The role of police

Police corruption related to the sex industry has been extensively documented in Australia. In fact, in Queensland, through the Fitzgerald inquiry, and in New South Wales, via the Wood Royal Commission, corruption was detected in regards to policing and the sex industry.

Jules Kim, CEO of Scarlet Alliance, points out that, in NSW, it was evidence of widespread police misconduct and corruption that led to the decriminalisation of sex work.

“There is clear evidence that police are inappropriate regulators of the sex industry,” Kim says.

Ignoring reality

As in previous debates, opponents to the Bill want more punitive measures when regulating sex work. They push for measures that will both quell “prostitution” and further criminalise aspects of the sex industry, including the clients of sex workers. In addition to this, many focused on “exploitation” within the industry and even went as far as stating that the proposed decriminalisation Bill would put sex workers at further risk. Opponents felt that the Bill did not address community concerns, such as those around street solicitation, the “character of brothel owners” and zoning of sex work establishments.

However, these concerns were not driven by evidence-based research, nor concern for the rights of sex workers, but rather a conservative, religiously-motivated concept of morality. All the evidence pointing to the merits of decriminalisation, including recommendations from human rights organisations, such as Amnesty International, the World Health Organisation and Human Rights Watch, were dismissed. Rhetoric that further stigmatised sex workers was used to invalidate the aims of the Bill and justify halting law reform.

If this Bill had passed, sex workers would still be subject to federal and state laws like any other citizen: sex work itself would simply not be considered a crime. Decriminalisation does not mean no regulation, rather it means whole-of-government regulation. Despite the Bill’s defeat, sex work will not disappear; in these circumstances, surely a pragmatic approach to legislative reform ought to be considered?

Apart from some minor changes, most of the laws criminalising sex work have remained unchanged since they were first enacted, some more than 50 years ago. Traditionally brothels have made up the majority of the sex industry in South Australia and the current laws reflect this, however, the nature of the industry is quickly changing with more and more private sex work occurring.

Much of the outdated law is now court-made and concern issues such as the definition of a brothel or the definition of receiving money. The law is not being used as it was once intended and it is impossible to give clear information to sex workers. The landscape is changing and the existing laws are not only archaic but in violation of our human rights and access to safety and protection under the law.

Sex workers in South Australia and throughout Australia are heartbroken after this latest setback.

There is some small upside, though. The defeated Bill contained a number of amendments that opposed full decriminalisation.

We hope the next Bill passes without amendments as recommended by the evidence-based work of the select committee and supported by sex workers globally.

Roxana Diamond is a PhD candidate at Flinders University and a general member of the SIN board.