Prostitution debated in South Australia


By Penny Saunders

Decriminalisation of prostitution continues to be debated in the South Australian parliament, and it is expected that this issue will gain momentum in the coming weeks.

On February 9 Mark Brindal, a Liberal backbencher, unsuccessfully attempted to introduce a private member's bill to decriminalise prostitution. Brindal's bill had been considered to have a greater chance of success than three previous attempts at prostitution law reform in 1980, 1986 and 1993, because he introduced the bill with a "sunrise clause" which would have set a time frame for the issue to be debated in parliament before decriminalisation came into effect.

However, Brindal will be introducing another bill to decriminalise prostitution this week, a move which is likely to increase tensions within the Liberal Party, which remains opposed.

Clearly, some reform is necessary, as South Australia continues to enforce some of the harshest anti-prostitution laws in Australia. While selling sex itself is not a crime, several activities associated with prostitution are criminal offences, which in effect make all types of sex work illegal.

It is illegal to solicit or loiter for the purposes of prostitution, to live off the earnings of a prostitute, to allow premises to be used for prostitution, to keep a brothel and to receive money paid in a brothel for prostitution. Even escort agencies, which could theoretically slip through these definitions, have been prosecuted and managers found guilty of keeping a brothel.

The law principally punishes the sex worker, the majority of whom are women, and allows the other participant in the transaction, the client, to stay out of the courts. The present approach to "control" prostitution frequently relies on stringent police measures which can deny the sex worker her rights and privacy.

The illegality of the sex industry affects the sex worker in other aspects: working conditions in brothels and agencies can be poor and workers can do little to challenge this because of the present nature of the industry; sex workers are marginalised in their employment unable to confide in friends and family about their work concerns; and sex workers are also more vulnerable to exploitation, harassment and violence from pimps, corrupt police officers and clients while the industry continues to be illegal.

Brindal's first bill would have removed all references to soliciting, loitering, receiving, living off the earnings and keeping a brothel from existing laws, and it seems likely that his next bill will attempt to do the same.

This will be a move towards decriminalisation, which is simply the removal of criminal sanctions, and not legalisation, which entails formal state recognition and control such as licensing. Generally within Australia, attempts at decriminalisation of prostitution, such as the 1992 legislation passed in Canberra, have been considered to be more successful than legalisation.

If the sex industry were to be decriminalised in SA this would mean that it could be regulated by existing legislation such as the Fair Trading Act, Health Act and the Planning Act.

However, what is not yet clear is whether decriminalisation will eventually lead to new health legislation to control the industry, specifically in relation to HIV/AIDS, condom use and medical testing for sex workers, which would be likely to be controversial with all groups associated with the sex industry. Activists for progressive law reform had hoped to use Brindal's "sunrise clause" to debate these issues, but it seems that Brindal will not include a similar clause in his new bill.