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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Decriminalisation of Sex Work)
Bill 2015
A BILL FOR
An Act to amend the
Criminal
Law Consolidation Act 1935
, the
Equal
Opportunity Act 1984
, the
Spent
Convictions Act 2009
, the
Summary
Offences Act 1953
and the
Return
to Work Act 2014
Contents
Part 2—Amendment of Criminal Law
Consolidation Act 1935
3Amendment of section
5—Interpretation
68AAProvision of
commercial sexual services to children
5Amendment of section 270—Punishment for
certain offences
6Variation of Schedule 11—Abolition of
certain offences
Part 3—Amendment of Equal Opportunity
Act 1984
7Amendment of section
5—Interpretation
8Amendment of section 85T—Criteria for
establishing discrimination on other grounds
9Amendment of section 85U—Application of
Division
10Amendment of section 85ZA—Application of
Division
11Amendment of section 85ZB—Discrimination
by associations
12Amendment of section 85ZD—Application of
Division
13Amendment of section 85ZF—Discrimination
by person disposing of interest in land
14Amendment of section 85ZG—Discrimination
in provision of goods and services
15Amendment of section 85ZH—Discrimination
in relation to accommodation
16Amendment of section
85ZI—Charities
17Amendment of section 85ZK—Measures
intended to achieve equality
Part 4—Amendment of Spent Convictions
Act 2009
16ACertain
convictions in relation to sex work taken to be spent
Part 5—Amendment of Summary Offences
Act 1953
19Amendment of
section 4—Interpretation
20Amendment of section 21—Permitting
premises to be frequented by thieves etc
21Repeal of sections 25, 25A and
26
Part 6—Amendment of Return to Work
Act 2014
23Amendment of section
4—Interpretation
6AAdditional
provisions in respect of sex work
Schedule 1—Transitional
provision
1Application of section 128(1) of Return to
Work Act 2014 to certain employers
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Decriminalisation of
Sex Work) Act 2015.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law Consolidation
Act 1935
3—Amendment
of section 5—Interpretation
Section 5(1), definition of common
prostitute—delete the definition
After section 68 insert:
68AA—Provision of commercial sexual services to
children
(1) A person must not provide commercial sexual services to a
child.
Maximum penalty: 10 years.
(2) However, it is a defence to a charge of an offence against this
section if it is proved that the defendant believed on reasonable grounds that
the person to whom he or she provided commercial sexual services had attained
18 years of age.
5—Amendment
of section 270—Punishment for certain offences
Section 270(1)(b)—delete paragraph (b)
6—Variation
of Schedule 11—Abolition of certain offences
Schedule 11, clause 1—after paragraph (29)
insert:
and
(30) offences relating to prostitution.
Part 3—Amendment
of Equal Opportunity
Act 1984
7—Amendment
of section 5—Interpretation
Section 5(1)—after the definition of sexuality
insert:
sex worker means a person who provides sexual services on a
commercial basis;
8—Amendment
of section 85T—Criteria for establishing discrimination on other
grounds
(1) Section 85T(1), definition of
discriminate—after paragraph (f) insert:
or
(g) discriminate on the ground of being, or having been, a sex
worker,
(2) Section 85T—after subsection (7) insert:
(8) For the purposes of this Act, a person discriminates on the ground of
being, or having been, a sex worker—
(a) if he or she treats another unfavourably because the other is, or has
in the past been, a sex worker; or
(b) if he or she treats another unfavourably on the basis of a
characteristic that appertains generally to persons who are, or who have in the
past been, sex workers, or on the basis of a presumed characteristic that is
generally imputed to persons who are, or who have in the past been, sex workers;
or
(c) if he or she treats another unfavourably because of an attribute of or
a circumstance affecting a relative or associate of the other, being an
attribute or circumstance described in the preceding paragraphs.
9—Amendment
of section 85U—Application of Division
Section 85U—delete "or religious appearance or dress" and
substitute:
, religious appearance or dress or being, or having been, a sex
worker
10—Amendment
of section 85ZA—Application of Division
Section 85ZA—delete "or caring responsibilities" and
substitute:
, caring responsibilities or being, or having been, a sex worker
11—Amendment
of section 85ZB—Discrimination by associations
Section 85ZB(2)—after paragraph (c) insert:
or
(d) for persons who are, or who have in the past been, sex
workers,
12—Amendment
of section 85ZD—Application of Division
Section 85ZD—delete "or religious appearance or dress" and
substitute:
, religious appearance or dress or being, or having been, a sex
worker
13—Amendment
of section 85ZF—Discrimination by person disposing of interest in
land
Section 85ZF(1)—delete "or caring responsibilities" and
substitute:
, caring responsibilities or being, or having been, a sex worker
14—Amendment
of section 85ZG—Discrimination in provision of goods and
services
Section 85ZG(1)—delete "or caring responsibilities" and
substitute:
, caring responsibilities or being, or having been, a sex worker
15—Amendment
of section 85ZH—Discrimination in relation to
accommodation
(1) Section 85ZH(1)—delete "or caring responsibilities" and
substitute:
, caring responsibilities or being, or having been, a sex worker
(2) Section 85ZH—after subsection (5) insert:
(6) This section does not apply to discrimination on the ground of being,
or having been, a sex worker in relation to the provision of accommodation by an
organisation that does not seek to secure a pecuniary profit for its members, if
that accommodation is provided only for persons who are, or who have in the past
been, sex workers.
16—Amendment
of section 85ZI—Charities
Section 85ZI(a)—after subparagraph (iv) insert:
(v) persons who are, or who have in the past been, sex workers;
or
17—Amendment
of section 85ZK—Measures intended to achieve equality
(1) Section 85ZK—delete "or persons with caring
responsibilities" and substitute:
persons with caring responsibilities, or persons who are, or who have in
the past been, sex workers
(2) Section 85ZK—delete "or persons without caring
responsibilities" and substitute:
persons without caring responsibilities, or persons who are not, or who
have never been, sex workers
Part 4—Amendment
of Spent Convictions
Act 2009
After section 16 insert:
16A—Certain convictions in relation to sex work
taken to be spent
(1) Despite any other provision of this Act, a conviction of a person for
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).
(2) In this section—
prescribed sex work offence means—
(a) an offence against section 270(1)(b) of the
Criminal
Law Consolidation Act 1935
; or
(b) an offence against section 21 of the
Summary
Offences Act 1953
involving premises frequented by prostitutes; or
(c) an offence against section 25, 25A or 26 or Part 6
of the
Summary
Offences Act 1953
; or
(d) a common law offence relating to prostitution,
(in each case, as in force before the commencement of this
section).
Part 5—Amendment
of Summary Offences
Act 1953
19—Amendment
of section 4—Interpretation
Section 4(1), definition of prostitute—delete the
definition
20—Amendment
of section 21—Permitting premises to be frequented by thieves
etc
Section 21—delete ", prostitutes" wherever occurring
21—Repeal
of sections 25, 25A and 26
Sections 25, 25A and 26—delete the sections
Part 6—delete the Part
Part 6—Amendment
of Return to Work
Act 2014
23—Amendment
of section 4—Interpretation
Section 4(1), definition of
employer, (a)—after "subsection (7)"
insert:
or section 6A
After section 6 insert:
6A—Additional provisions in respect of sex
work
The following provisions apply in respect of the provision of sexual
services on a commercial basis (not being the provision of a service that is
prohibited under a law of the State):
(a) for the purposes of paragraph (b) of the definition of
contract of service in section 4, the provision of such a
service will be taken to be work of a prescribed class if—
(i) the work is performed by 1 person to the contract, arrangement or
understanding (the worker) in the course of or for the purposes of
a business carried on by another person to the contract, arrangement or
understanding (the employer); and
(ii) the work is performed personally by the worker (whether or not the
worker supplies any equipment); and
(iii) the worker does not employ any other person to carry out any part of
the work;
(b) a reference to an employer in this Act does not include a reference
to—
(i) a person to whom such services are personally provided; or
(ii) a person of a class prescribed by the regulations for the purposes of
this paragraph;
(c) in determining an application under section 175, the Corporation
must not refuse to extend the protection of this Act to a self-employed person
merely because the person is or has been engaged in the provision of commercial
sexual services (other than where the provision of the services is prohibited
under a law of the State);
(d) the regulations may exempt a specified class of persons or bodies from
a specified provision of this Act.
Schedule 1—Transitional
provision
1—Application
of section 128(1) of Return to Work
Act 2014 to certain employers
(1) This clause applies to an employer of a person who provides sexual
services on a commercial basis.
(2) An obligation under section 128(1) of the
Return
to Work Act 2014
will be taken not to apply to an employer to whom this clause applies
during the prescribed period.
Note—
That subsection provides that an employer must not employ a worker in
employment to which that Act applies unless the employer is registered by the
Return to Work Corporation of South Australia.
(3) Nothing in this clause—
(a) limits the operation of section 128(3) of the
Return
to Work Act 2014
; or
(b) prevents—
(i) an employer to whom this clause applies from applying for registration
by the Return to Work Corporation of South Australia during the prescribed
period; or
(ii) such an application being processed by the Return to Work Corporation
of South Australia during the prescribed period.
(4) In this clause—
employer has the same meaning as in the
Return
to Work Act 2014
;
prescribed period means the period commencing on the day on
which this clause comes into operation and ending 6 months after that
day.