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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Sex Work Reform)
Bill 2012
A BILL FOR
An Act to amend the Criminal
Law Consolidation Act 1935, the Spent
Convictions Act 2009, the Summary
Offences Act 1953 and the Workers
Rehabilitation and Compensation Act 1986.
Contents
Part 1—Preliminary
1Short
title
2Amendment provisions
Part 2—Amendment of Criminal Law
Consolidation Act 1935
3Amendment of section
5—Interpretation
4Amendment of section 270—Punishment for
certain offences
5Variation of Schedule 11—Abolition of
certain offences
Part 3—Amendment of Spent Convictions
Act 2009
6Insertion of section
16A
16ACertain convictions
in relation to sex work taken to be spent
Part 4—Amendment of Summary Offences
Act 1953
7Amendment of
section 4—Interpretation
8Amendment of section 21—Permitting
premises to be frequented by thieves etc
9Substitution of section
25—Soliciting
25Soliciting
10Repeal of sections 25A and
26
11Substitution of Part 6
Part 6—Offences relating to sex
work
27Interpretation
28Offence to request unprotected sex
etc
29Offence to use
premises for purposes of sex work near schools etc
Part 5—Amendment of Workers
Rehabilitation and Compensation Act 1986
12Amendment of section
3—Interpretation
13Insertion of section
6C
6CAdditional provisions
in respect of sex work
Schedule 1—Transitional
provision
1Application of section 59(1) of Workers
Rehabilitation and Compensation Act 1986 to certain employers
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Sex Work Reform)
Act 2012.
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
4—Amendment
of section 270—Punishment for certain offences
Section 270(1)(b)—delete paragraph (b)
5—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 Spent Convictions
Act 2009
After section 16 insert:
16A—Certain convictions in relation to sex work
taken to be spent
(1) Despite another 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.
(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 4—Amendment
of Summary Offences
Act 1953
7—Amendment
of section 4—Interpretation
Section 4(1), definition of prostitute—delete the
definition
8—Amendment
of section 21—Permitting premises to be frequented by thieves
etc
Section 21—delete ", prostitutes" wherever occurring
9—Substitution
of section 25—Soliciting
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: $750
(2) Nothing in this section prevents a person from advertising the
provision of sexual services on a commercial basis.
Note—
However, a person must still comply with any other laws that might relate
to such advertising.
(3) 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.
(4) In this section—
sexual services and the provision of sexual services on
a commercial basis have the same meanings as in Part 6.
10—Repeal
of sections 25A and 26
Sections 25A and 26—delete the sections
Part 6—delete the Part and substitute:
Part 6—Offences relating to sex
work
27—Interpretation
(1) In this Part—
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,
but does not include an act, or class of acts, declared by the regulations
to be excluded from the ambit of this definition.
(2) For the purposes of this Part, 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).
(3) This Part is in addition to, and does not derogate from, the Occupational
Health, Safety and Welfare Act 1986.
Note—
The Occupational
Health, Safety and Welfare Act 1986 requires employers and
employees to minimise risks to health and safety in the workplace.
28—Offence to request unprotected sex
etc
(1) A person must not, in connection with the provision of sexual services
on a commercial basis—
(a) request that he or she, or any other person, be allowed to engage in a
high risk sexual activity without using an appropriate prophylactic;
or
(b) require or encourage a person to engage in a high risk sexual activity
(whether with the person or otherwise) without using an appropriate
prophylactic; or
(c) prevent or discourage another person from using an appropriate
prophylactic when engaging in high risk sexual activity (whether with the person
or otherwise).
Maximum penalty: $2 500.
(2) For the purposes of this section, each of the following sexual
services will be taken to be a high risk sexual
activity:
(a) sexual intercourse;
(b) a sexual service that involves the transfer, or a risk of transfer, of
bodily fluids (other than saliva) from 1 person to another;
(c) any other sexual service, or class of sexual services, declared by the
regulations to be included in the ambit of this subsection.
(3) In this section—
appropriate prophylactic, in respect of a particular high
risk sexual activity, means a prophylactic sheath or other barrier that is
effective in reducing the risks of acquiring or transmitting a sexually
transmissible infection in the course of that activity.
29—Offence to use premises for purposes of sex work
near schools etc
(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: $2 500 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 his or her 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 he or she 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—50 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 home or any other premises of
a kind excluded by the regulations from the ambit of this definition.
Part 5—Amendment
of Workers Rehabilitation and Compensation
Act 1986
12—Amendment
of section 3—Interpretation
Section 3(1), definition of employer, (a)—after
"subsection (9)" insert:
or section 6C
After section 6B insert:
6C—Additional provisions in respect of sex
work
(1) 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 3, 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; and
(iv) the value of any materials supplied, or reasonably expected to be
supplied, by the worker does not exceed an average of $50 per month;
(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 103, 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 sexual
services on a commercial basis (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.
(2) In this section—
sexual services and the provision of sexual services on
a commercial basis have the same meanings as in Part 6 of the
Summary
Offences Act 1953.
Schedule 1—Transitional
provision
1—Application
of section 59(1) of Workers Rehabilitation
and Compensation Act 1986 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 59(1) of the Workers
Rehabilitation and Compensation Act 1986 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
WorkCover Corporation.
(3) Nothing in this clause—
(a) limits the operation of section 59(3) of the Workers
Rehabilitation and Compensation Act 1986; or
(b) prevents—
(i) an employer to whom this clause applies from applying for registration
by the WorkCover Corporation during the prescribed period; or
(ii) such an application being processed by the WorkCover Corporation
during the prescribed period.
(4) In this clause—
employer has the same meaning as in the Workers
Rehabilitation and Compensation Act 1986;
prescribed period means the period commencing on the day on
which this clause comes into operation and ending 6 months after that
day;
sexual services and the provision of sexual services on
a commercial basis have the same meanings as in Part 6 of the
Summary
Offences Act 1953 (as enacted by this Act).