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