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The Naked Anthropologist · New Zealand prostitution law, sex work, anti-migration and anti-trafficking | The Naked Anthropologist

New Zealand prostitution law, sex work, anti-migration and anti-trafficking

In conversations about legal models for dealing with the sex industry, New Zealand’s Prostitution Reform Act of 2003 is often held up as the best. The law’s main thrust regulates how brothels may operate, by the way also making it legal for one to four people to work alone or together without having to participate in regulation (registering, getting permissions or being subject to inspections). This is obviously positive for more independent workers, unless they prefer to work from the street, in which case there is no benefit.

Many rights activists who back this legal model are not aware of a protectionist clause enshrined in the legislation: only New Zealand citizens and some, not all, migrants with permanent residency may work in its sex industry. This means no work permits are available for people who might want to go to New Zealand to work in a brothel or other sex business, or independently. Spokespeople for the law claim this clause prevents sex trafficking.

For those interested in sex work rights and theory, this is not coherent. New Zealand’s law can be called both decriminalisation, a policy that says sex work is socially acceptable, and regulation, which says sex work can be made safe and rational. Therefore, if jobs are available, it is logical to allow people from outside to come do them. If the jobs have not been made subject to quotas because there are not enough openings to satisfy all the ‘natives’ that want them, but ‘foreigners’ are still prohibited, something odd is going on.

I talked with several scholars and the New Zealand Prostitutes Collective about how this contradictory combination of liberalisation and protectionism came about. All agree that the clause limiting workers coming from outside New Zealand was inserted at a late stage, without meaningful analysis or discussion, because of one parliamentarian’s insistent noise about trafficking. From the New Zealand First party, he agreed to vote for the decriminalisation bill in exchange for a clause that would limit immigration. His position reflected anxiety, racism and xenophobia in New Zealand about increased immigration from Asia, the Middle East and the Pacific, as well as refugees from Africa.

The disallowal of migrants helps keep the industry racially and culturally homogeneous. It is true that New Zealand’s population includes indigenous Maori as well as a large number of Pacific Islanders and is becoming multicultural. But the PRA focusses on brothel employment rather than on street-based prostitution where Maoris and Pacific Islanders have traditionally worked.

The PRA also favours middle-class cultural norms, promoting discreet prostitution contained inside brothels conceived to be as inoffensive as possible. There seems to have been a fear that New Zealand’s sex industry might change as a result of the law: get bigger and bolder, possibly promote practices the Act eventually outlawed, such as selling of sex without condoms (as if to say no New Zealander had ever done this).

Some observers interpret the law’s failure to address street workers as seeking to push them into brothels, where they may benefit from the Act’s provisions – and where, by the way, they must be available for state inspections. Thus the New Zealand legislation has the effect of reducing diversity amongst sex workers and sex businesses.

This more complicated history and analysis needs to emerge in discussions of the New Zealand law. Would the situation change in New Zealand if the clause prohibiting foreigners were to go away? Or, put differently, if another country attempted to use the New Zealand model but not add the prohibition, would it work, in a worldwide context of migration and sexworking?

The Act also says nothing about other kinds of commercial sex and sex businesses. Workers there, like those on the street, receive no benefit from this legislation.

Thanks to Jo Richdale, Amanda McVitty, Lynzi Armstrong, Dan Healey and the New Zealand Prostitutes Collective for helping me think this through and providing links.

New Zealand Prostitutes Collective summary of the PRA

Frequently Asked Questions about the PRA

A 2008 review of the PRA that includes a literature review from 2005

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  1. THANX, Laura, again again!!!
    Here in DK pro -sexwork allies in the debate suggests and copy the PRA without addressing what you have just pointed out in this article.
    It might be for strategic reasons, but I do not agree – and now I can forward your article to back up my criticism, and I might be taken more serious now that not only a sex worker, but also an academic object to some of this legislation, and that it should not be just copied, Thanx.

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  2. Is any legislation ever perfect? I doubt it. The New Zealand example is certainly the best among lots of bad policies that try and control sex work. Sadly the inexplicable fear of the foreigner and the hype around trafficking I suspect would make such negative clauses almost compulsory in order to persuade governments to pass any positive legislation anywhere in the world.

    The point is once legislation is passed is that it or can negative elements be amended later?. It is certainly something that has to be debated by activists for sex worker rights everywhere.

    Douglas

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  3. Hi Laura,

    Whilst I support your critique of the clause contained in the act which denies migrants the right to do sex work legitimately, I wanted to put forward an alternative perspective re the impacts for street-based sex workers.

    My own research with street-based sex workers is not yet developed enough for me to draw any conclusions. However, it is my perception that the decriminalised model in NZ is potentially of considerable benefit to street-based sex workers. Namely since it has meant they can interact with clients freely without the fear of arrest. Further the CSOM research into the impacts of the Prostitution Reform Act, it was reported that street-based sex workers found it easier to refuse to do a client since the change in law (CSOM, 2007).

    Indeed no legislation is ever perfect, and there will always be competing perspectives. However, my understanding is that the inclusion of street-based sex workers in the protections offered by the PRA is an important and unique aspect of decriminalisation, setting NZ apart from a global culture that tends to construct street-based sex work as a clandestine activity. Although attitudes towards street-based sex workers may remain in some corners, distinctly negative, I believe that the PRA has provided a substantial platform for change.

    Best wishes,

    Lynzi Armstrong

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  4. What’s of interest to me is that there is no equal access for any worker to equal protection anywhere on the planet. I’m taking about protection in terms of all workers having the right to say yes on our job as well as the right to say no regardless of our country of origin, our ability to speak local or state sanctioned permission to work. I’m wondering about the different international treaties in setting policy. The question of how would a state legislate respect and inclusion for a class of workers who’s ability to speak of ourselves has been disenfranchised and disemboweled by that very state? Maybe we’re missing a step or two…

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  5. Thanks for an excellent summary of the issues. Lynzi’s point about street-based work is important, as anecdotally at least, it seems these workers feel more able to get more protection from assault etc. under the PRA. However, there is a good deal of conflict over their use of public space, with residents in some areas taking what I would term vigilante action (though it is not physically violent – yet) against sex workers and their clients. These self-appointed ‘moral crusaders’ are definitely perpetuating many of the most negative stereotypes about sex workers in their campaigning – for example, sending letters to clients’ homes warning of the ‘dangers’ of having commercial sex, and ‘exposing’ their activities to their partners/wives. There is definitely a blanket assumption that all clients of sex workers are heterosexual males, and a strong underlying sense of the old binary between ‘virtuous, innocent wife/mother’ and ‘bad sex worker’ (as if female sex workers are never also wives and mothers).

    Amanda

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  6. Yes, there is continued community aggression in some areas where street-based sex workers work. However I don’t think this is a consequence of the PRA since this behaviour has also occurred in contexts overseas where street-based sex work is not decriminalised. The conflicts currently being played out are a reflection that negative attitudes are still in abundance. Of course they are; they PRA cannot be expected to achieve miracles. Wider social change takes time.

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  7. What can i imagine about this policy is that later some anti-prostitution/migration protectionist would argue that, “see, the decriminalization resulted in more human trafficking, like XXX or NZ model”, which totally ignored that the policy exclude migrant sex workers. (sorry, no inspiring conversation with the above comments, just my personal complaints)

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  8. I echo what Douglas Fox and Maxine said. It’s not perfect, but it’s the best example we have now. Of course, thanks to people like you who point out the flaws, we can work to improve the ideas in legislation modeled after it in any part of the world.

    This anti-trafficking hysteria has to stop.

    XX

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  9. The allow for migrant worker to do sex work is a challenge, coz the presence of migrant sex worker challenge the immigration control that constitutes a homogeneous nationality. Also how to solve the internal conflict between the local sex worker and the migrant sex worker or between migrant sex worker and migrant is a huge problem too. i guess the experience of NZ PRA model toward the legalization from local sex workers to transnational migrant sex workers will be a very important step.

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  10. “The disallowal of migrants helps keep the industry racially and culturally homogeneous.”

    I agree with most of your article however I must call rubbish on this. The NZ sex industry contains every race, every size, every colour and every religion. I do not see how it could be more diverse than it already is!

    At one small place ( I was fixing their computers, true!) there was Russian, Chinese, Malaysian, Kiwi, Maori, English, Indian, & mixtures. So I had every color from white to dark brown around me. Want to tell me thats not mixed.

    It is true that to work in the NZ sex industry you need to be born there or have a resident workers visa. However as the base NZ population is extremely diverse (NZ stopped being described as homogeneous in the 70′s) so are the workers in the sex industry.

    Sb

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  11. @Lynzi – you are right of course about community aggression towards street-based sex workers being a long-term thing and not just emerging as a consequence of the PRA, but what I think has changed since the PRA is how it has become much more politicised. What I mean is that conservative, right wing groups & politicians are pointing to street-based sex work as a very visible example of how ‘morals’, ‘family values’ etc. have been eroded under a left-leaning Labour government that has sponsored legislation like the PRA. I have also heard the Civil Union Act discussed in a similar context, but the PRA & sex work seems to be the social justice issue that is the most ‘headline grabbing’.

    @Sb – yes, NZ is a multi-cultural/multi-ethnic country and this is reflected in most occupations including sex work. But when anti-migration (and I would say racist) politicians start trying to use sex workers as border markers between ‘us’ and ‘them’, I think we need to critically examine what is going on at an ideological, as opposed to practical, level.

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  12. I want to echo the latest comment from Bavardess, the legislation creates an ideological framework that promotes a very white middle class kind of sex industry – one that is concealled from public view behind the doors of brothels. It does not ‘whiten’ the workers but it does reflect cultural anxieties about the kinds of women who would want to engage in sex work and sex work migrancy is perhaps the height of this anxiety.

    As the post on street walkers suggests the notion that women would brazenly strut their stuff and ply their trade in public is perceived as offensive to many people in NZ. So while brothels are often tolerated as long as they don’t make their presence known to the neighbours (in itself sometimes difficult) street walkers visibility makes them an easy target for vigilantes and the press alike.

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  13. Interesting point Bavardess. I think public discussion focused on street-based sex work seldom is not politicised. It is an issue commonly used to make claims of moral decline, in NZ and in other countries. It’s timelessly easy to pick on typically stigmatised people as part of a broader political agenda. These groups made similar statements and arguments in the lead up to the passing of the PRA.

    I think the migration issue is one for more research. Migrant workers do still come to NZ, as others have mentioned, and it would be interesting to have some insight into how they experience it here. I think the discussion on this is so interesting, and I look forward to more commentary and research on this issue.

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  14. An often ignored problem with New Zealand is that the brothel section of the laws is more similar to the Victorian (Australia) and Queensland (Australia) models of licensing.

    Brothel owners must carry ID cards to prove their worth to run brothels…. and be subject to character checks etc.

    The New South Wales version of decriminalisation doesn’t include licensing, licensing ID cards or any kind of background police character checks for owners, which is a much more equitable situation and more like other businesses rather than placing sex work in the category of gambling or racing.

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  15. Ted Cheng makes very good points about the divide that exists between migrant and non-migrant sex workers with anti-migration legislation and anti-trafficking hype making it easier for non-migrant sex workers to ‘dob in’ their migrant sisters (and brothers?) in the name of concern and compassion (when they are really often just racist and threatened by the competition).

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