||A sex industry has operated in New Zealand since the early days of European colonisation, and various laws have been enacted to address its activities. This legislation focused on the activities of the sex workers themselves rather than their clients.
||In June 2003, New Zealand decriminalised sex work with the Prostitution Reform Act 2003.
||Three current issues associated with prostitution are the number of sex workers, their work conditions and the location of the sex industry.
In June 2003, New Zealand became the first country to decriminalise sex work with the passage of the Prostitution Reform Act (PRA) 2003.
Sex work in New Zealand had not been illegal before the PRA. However, the Justice and Electoral Committee said that prior to the PRA a range of offences could be committed in association with acts of prostitution, and that for most forms of prostitution it was likely a law would be broken at some stage.
This paper briefly outlines the history of prostitution in New Zealand, and the law, before examining the impact of the PRA on the number of sex workers, their working conditions and location of work.
History of prostitution and the law
From the time of Captain James Cook’s voyages to New Zealand in 1769, there was considerable interaction between Pacific Island women and sailors who chartered Pacific and New Zealand waters. Whalers, sealers and traders visiting New Zealand regularly exchanged items such as muskets for sexual access to Māori women (and sometimes men). A sex industry has operated in New Zealand since the early days of European colonisation.
The earliest relevant legislation derived from the English Vagrancy Act 1824, which could be invoked against prostitutes in public streets or in any place of public resort and when behaving in a ‘riotous or indecent manner’.
The industry grew with the colony and the impact of the goldfield ‘rushes’ of the 1850s and 1860s. The industry’s extent and the ways of addressing it often polarised views.
New Zealand passed its own Vagrant Act in 1866 whereby any ‘common prostitute’ who publicly behaved ‘in a riotous or indecent manner’ was liable for imprisonment not exceeding three months, this potentially included hard labour.
Local governments were responsible for controlling brothels and some introduced bylaws outlawing them, such as Auckland in 1854 and Timaru in 1875. Enforcement of legislation against prostitutes was sometimes rigorous, especially after the mid-1860s.
Under the Contagious Diseases Act 1869, periodic medical examinations of a ‘common prostitute’ could be ordered. If a woman was found to be affected with a contagious disease she was liable to be detained in a female reformatory.
The Act’s introduction apparently was influenced by a desire for an official licensing system. Initially the Act was only enforced in Canterbury, and later briefly in Auckland.
By the late 19th century tolerance of prostitution was declining, with increased disquiet over the number of street prostitutes and ‘bawdy houses’ where prostitutes worked.
The Police Offences Act 1884 repealed the Vagrant Act 1866.
‘Common prostitutes’ who loitered and importuned passengers in public places were liable to a two pound penalty or imprisonment not exceeding one month. Those who behaved in a ‘riotous or indecent manner’ in public places could receive imprisonment not exceeding three months.
Any keepers of ‘refreshment houses’ who allowed prostitutes to meet together and remain therein were liable to a penalty not exceeding ten pounds.
In the 1890s concern arose over the involvement of young women in the sex industry.
The Criminal Code Act 1893 and Crimes Act 1908 made any person who kept a ‘common bawdy-house’ for the purposes of prostitution, along with its tenants, lessees or occupiers, liable for two years imprisonment with hard labour.
Anxieties about prostitution increased during World War One with health campaigner Ettie Rout’s efforts to address venereal disease among New Zealand soldiers.
The Police Offences Act 1927 had the same penalties as the Police Offences Act 1884 for ‘common prostitutes’ who loitered and importuned passengers in public places, and publicly behaved in ‘a riotous or indecent manner’. This was also the case for keepers of ‘refreshment houses’ who knowingly permitted or suffered prostitutes.
Further concern arose with World War Two and the stationing of American forces in New Zealand.
Under the Crimes Act 1961, brothel-keeping, living on the earnings of prostitution, and procuring sexual intercourse were offences, each attracting a maximum penalty of up to five years imprisonment.
The Massage Parlours Act 1978 aimed to supervise and regulate the industry, and was passed due to fears of crime in brothels.
Massage parlour operators had to be licensed, and could not have been convicted of prostitution offences in both the Police Offences Act 1927 and the Crimes Act 1961 during the 10 years before applying for a license.
The license could be cancelled where any masseur or masseuse employed or engaged by the licensee was convicted of prostitution, or an act of prostitution was facilitated by ineffective supervision.
The Act made it illegal for those with convictions for drug or prostitution-related offences to be employed in such establishments. Since massage parlours were defined in law as public places, workers could be convicted for soliciting on the premises. This effectively forced them into non-licensed arenas if they decided to continue sex work.
Human rights, the law’s focus on sex workers rather than clients, and later HIV/AIDS were publicised during the 1970s and 1980s.
Soliciting for the purpose of prostitution in public places was prohibited under the Summary Offences Act 1981, and incurred a fine of up to $200.
However, the actual provision of sexual services for payment was not an offence.
Activism among sex workers increased, with the New Zealand Prostitutes’ Collective (NZPC) established by a small group of workers in 1987. The group aimed to provide support and education for sex industry workers. The NZPC’s first office opened in Wellington during October 1988, followed by Auckland and Christchurch bases.
The Fourth Labour Government provided funding to the NZPC as part of a national AIDS/HIV strategy. This funding, which was continued by subsequent governments, allowed the group to focus on issues including the legal environment of prostitution and public health standards in the sex industry.
The NZPC during 1989 presented its first arguments for decriminalising prostitution to a Select Committee on Justice and Law Reform.
Prostitution Reform Act 2003
During the 1990s calls for decriminalisation intensified. There was a growing public awareness of the sex industry, and the NZPC continued to strengthen support for decriminalisation.
Interest in law reform increased with various members of Parliament voicing concern with the current law, and in 1994 the NZPC worked with others to draft a model law to meet the needs of sex workers. In 1997 a women’s forum was held and a group was formed to work on a bill. This group included representatives from the NZPC, Young Women’s Christian Association, National Council of Women, and the AIDS Foundation. The following year members of Parliament visited New South Wales, Australia, where in 1995 most forms of sex work had been decriminalised. One of these members was Tim Barnett, whose Prostitution Reform Bill was introduced in Parliament during September 2000.
The Prostitution Reform Bill’s purpose was to ‘decriminalise such activities and make prostitution subject to special provisions in addition to the laws and controls that regulate other businesses’. This purpose was ‘not intended to equate with the promotion of prostitution as an acceptable career option but instead to enable sex workers to have and access the same protections afforded to other workers’. The Bill, as introduced, had the stated aims of:
Safeguarding the human rights of sex workers.
Protecting sex workers from exploitation.
Promoting the welfare and occupational safety and health of sex workers.
Creating an environment conducive to public health.
Protecting children from exploitation in relation to prostitution.
In 2000 a personal vote that the Bill be read a first time was passed by 87 votes to 21.
Of 221 submissions to the Justice and Electoral Committee, approximately 41 percent generally supported the Bill, 56 percent were generally opposed and 3 percent were neutral.
The Justice and Electoral Committee’s 2002 report recommended by a majority that the Bill be passed with amendments.
Following the report, the second reading occurred where a personal vote was passed by 66 to 52 votes.
Important changes were made to the Bill during its passage through Parliament. For instance, a system of certification for brothel operators was included along with provisions prohibiting people on limited entry visas working or investing in prostitution businesses. Part four which established the Prostitution Law Review Committee (the Committee) and statutory review was also included.
A personal vote in 2003 that the Bill be read a third time was passed 60 votes to 59, with one abstention (for a timeline of the Bill’s passage see table 1).
Table 1: Passage of PRA
||Select Committee report
Major aspects of PRA
Apart from repealing the prohibition of soliciting in public places under the Summary Offences Act 1981 (section 26), the Act includes:
Prohibitions on use in prostitution of persons under 18 years of age: It is an offence to arrange for or to receive commercial sexual services from a person under 18. Likewise, it is an offence to receive payment for the commercial sexual services of a person under 18. Every person convicted of an offence is liable to a maximum penalty of seven years' imprisonment. It is not an offence for a person under 18 to provide commercial sexual services as they are considered to be a victim (sections 8 to 9 and 20 to 23).
Health and safety requirements: Operators of prostitution businesses must adopt and promote safer sex practices. Every person convicted of an offence is liable to a fine not exceeding $10,000. Sex workers and clients must also adopt safer sex practices or be liable to receive a fine not exceeding $2,000. The Act provides powers of entry to premises for the purpose of inspection for compliance with health and safety requirements (sections 24 to 29).
Brothel operator certification system: Every operator of a prostitution business must hold a valid operator's certificate. To be eligible for a certificate, applicants must be over the age of 18, be a citizen or permanent resident of New Zealand or Australia, and not have any disqualifying convictions. Every operator who does not hold a certificate is liable to a fine not exceeding $10,000 (sections 34 to 41).
Small owner-operated brothels (SOOBs): These brothels have no more than four sex workers, and each individual sex worker retains control over their earnings. SOOBs are deemed not to have operators and therefore a brothel operator's certificate is not required (section 4).
Territorial authorities: These authorities can make bylaws regulating the location of brothels, and the signage and advertising associated with commercial sexual services (sections 12 to 14).
Prostitution Law Review Committee: This Committee of eleven members appointed by the Minister of Justice was charged with assessing the number of sex workers in New Zealand at the time of decriminalisation, and reviewing the PRA’s operation three to five years after its enactment. This review focused on whether the Act was achieving its purpose (sections 42 to 46).
The Committee’s 2008 report on the PRA concluded that ‘On the whole, the PRA has been effective in achieving its purpose, and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously’. However, it was noted that progress in some areas had been slow. For instance, many sex workers were still vulnerable to ‘exploitative employment conditions’. There have also been reports of some sex workers being forced to take clients against their will. The Committee said that an assessment of the PRA’s impact should be undertaken at a later date to evaluate whether the Act is achieving its purpose, if any unintended consequences have arisen, and if the PRA needs amendment. The Act’s longer-term impact should be ‘much clearer’ by 2018.
Three current issues associated with prostitution are the number of sex workers, their working conditions and the location of the sex industry.
Number of sex workers: Concern had been expressed that decriminalising prostitution would increase the number of sex workers. It is very difficult to calculate accurately the number of people involved in the sex industry, and estimates need to be treated with caution. There were an estimated 5,932 sex workers at about the time the PRA came into force according to a retrospective survey of Police officers with knowledge about the sex industry in Police Districts. In 2006 the Christchurch School of Medicine (CSOM) estimated there were 2,396 sex workers in Christchurch, Wellington, Auckland, Nelson and the Hawke's Bay. The following year it was estimated 2,332 sex workers were in those five locations.
The Committee believed that the change in the earlier estimated number of sex workers from 5,932 to 2,332 indicated the limitations of initial data collection methods, and the more robust methodology used to estimate the later number, rather than a decline in sex workers. However, the Committee was satisfied that the popular assumption that decriminalisation would increase the numbers of people involved in prostitution was flawed.
The NZPC in 2010 said there were an estimated 400 street-based sex workers nationwide, though any estimate needs to be treated with caution due to the often temporary and sporadic nature of work. More recently, it has reported no apparent increase in the number of street-based sex workers (and sex workers in general) within Christchurch, Wellington and Auckland.
Research indicates that these sex workers are predominantly female (although there are significant numbers of transgender people), and are predominantly Māori or Pasifika.
The Committee and the CSOM believed that the number of street-based sex workers has remained stable since the PRA.
Information on the clients of sex workers is limited. Research suggests that many ‘normal’, successful, socially competent and often married men apparently purchase sexual services. The Committee considered research is needed to identify clients along with their motivations and reasons for buying sex.
Work conditions: The most common reason for entering the sex industry is financial.
In 2007 a Victoria University survey of brothel operators and community agencies found various positive attitudes towards the PRA. These included sex workers no longer being considered criminals, and having the same rights as those working in other industries. They could negotiate safe-sex practices more easily too. Areas requiring improvement included management practices and better administration of the brothel operator certification system.
Despite decriminalisation, some sex workers continue to experience adverse incidents such as exploitation and violence. However, it is unclear if more violence is being reported since the PRA.
The CSOM study found that street-based sex workers were significantly more likely than other sex workers to experience incidents such as violence, threats of violence, rape and theft. Clients were the usual perpetrators of these offences.
Other research indicates that men posing as clients are a major source of violence and harassment towards street workers, with these workers further harassed by some members of the general public.
There appeared to be 'good' and 'bad' operators regarding sex workers being allowed to refuse to provide commercial sexual services.
It has been reported that some unprotected sex occurs.
From 2004 to 2011 there were two prosecutions and two convictions (in 2005 and 2009) under the PRA for a sex worker or client failing to adopt safer sex practices.
The Committee was encouraged that most sex workers contacted for its report were aware of their right to say 'no' to sex, and that some brothel operators' behaviour here had improved.
Under-age sex workers, and those working illegally, can be particularly vulnerable to exploitation and negative experiences. Based on a 2003-2004 survey of Police Districts and Areas an estimated 210 under-age people were involved in the sex industry, with the majority street-based.
From 2004 to 2011 there were 133 charges prosecuted and 57 convictions under the PRA for under-age prostitution (see graph 1).
The Victoria University survey identified the protection of those under 18 years old from being used in prostitution as an area where improvement was needed.
There have been reported occurrences of under-age sex workers and violence against them.
The Committee’s report did not consider the PRA had increased under-age involvement in prostitution. It said that media coverage of under-age prostitution had often created an exaggerated impression of the numbers involved, and the PRA had raised awareness of the problem.
The NZPC has noticed that since decriminalisation, brothel operators who hire are much more aware that they are breaking the law if they hire anyone under the age of 18. It reports that the number of reported under-age sex workers is very low in Christchurch and Wellington, and also low in Auckland.
The Committee indicated that it was aware that some people working in the sex industry were breaching their immigration status, and illegally working on visitors or student visas has been reported.
The Committee expressed concern that these sex workers were not protected under the PRA, and may be vulnerable to exploitation.
More recently, the United States said that New Zealand ‘is a source country for underage girls subjected to internal sex trafficking’. Furthermore, a ‘small number of girls and boys, often of Māori or Pacific Islander descent, are trafficked domestically to engage in street prostitution’.
Source: Information supplied to the author by the Ministry of Justice, 5 March and 7 June 2012.
Location of prostitution: The location of the sex industry, both in terms of street workers and brothels is controversial. From 2004 to 2011 there were 914 applications for certificates of business of prostitution granted, and 21 refused. There were 636 applications for renewal of certificates granted and 3 refused (see graph 2).
The Committee has acknowledged that some people continued to disapprove and dislike sex workers, a stigma towards sex work remained, while some people in the industry were mistrustful and suspicious of the authorities.
There have been incidences of community concern arising over street workers and brothels operating in residential areas, and a 2011 survey found that 66 percent thought brothels should be banned in such areas.
For instance, the February 2011 earthquake in Christchurch forced sex workers out of the central city into other areas. This has generated public complaints and a Police operation in January 2012 targeted sex workers, their associates and clients.
The media has reported that with the city’s rebuilding efforts the local sex industry has grown, but the NZPC believes that the number of sex workers might actually have fallen as people left.
Also in February 2012 Auckland Police raided brothels in residential areas and some were closed because of illegal operations.
There has been additional controversy in Auckland over plans to build what has been termed ‘New Zealand's first high-rise tower brothel’ on the site of the former Palace Hotel.
Nearly all of the 200 submissions on the proposed development were against the project.
Source: Information supplied to the author by the Ministry of Justice, 23 March and 27 June 2012.
Some local governments have sought to restrict the practice. For instance, the Hamilton City Council passed a bylaw in 2004 restricting the location of sex work and creating a ‘Permitted Brothel Area’. This was challenged unsuccessfully in the High Court (2006) and Court of Appeal (2007).
Although an earlier bill failed, the Manukau City Council (Regulation of Prostitution in Specified Places) Bill was introduced in 2010. This local Bill, sponsored by Ross Robertson, has the purpose of authorising the Manukau City Council to make bylaws prohibiting the business of prostitution or commercial sexual services in specified public places in Manukau City (clause 5 (1)). Except within the confines of a brothel or SOOB, no person may conduct the business of prostitution or supply or receive any commercial sexual service or services in a specified place in the district (clause 12 (1)). It is currently before the Local Government and Environment Committee with a report due in July 2012. As the multiple councils covering the Auckland region have been replaced by a single authority, the Auckland Council has released a supplementary order paper with proposed amendments to make it the Bill’s promoter and change the definition of ‘district’.
Reported effects of street prostitution causing ‘significant concern’ in the affected areas include the noise, anti-social behaviour, offensive and dangerous litter, soliciting during non-traditional times, aggressive solicitation, under-age prostitution and gang involvement.
However, doubts have been expressed over the Bill’s ability to address the issues, thus illustrating the wider debate surrounding ways to address street prostitution. The Police have said that prohibiting street prostitution in a particular area is likely to move sex workers to another area. There is concern that as street prostitution is prohibited in specific areas, sex workers may be forced to relocate to inherently more dangerous areas, placing additional strain on Police resources. Other legislation, including the Summary Offences Act 1981 and the Litter Act 1979, may also be more appropriate for addressing community concerns.
There has been interest in the Bill from other local councils, such as Christchurch.
Here the Council unanimously resolved in May 2012 to consult on a proposed bylaw to restrict the location of brothels, and to control signage advertising commercial sexual services.
New Zealand’s sex industry has operated since the early days of European colonisation with governments enacting various laws to address its activities. However, the criminalisation of prostitution, and the focus of laws on the sex workers rather than their clients was increasingly questioned during the later 20th century. It was within this context that decriminalisation ultimately occurred in 2003. It is difficult to accurately determine the impact of the PRA given the nature of the sex industry, though key evidence indicates that the decriminalisation of prostitution has impacted favourably on various aspects of sex work for many. The number of sex workers, and those workers under-age, does not appear to have significantly changed. Despite decriminalisation the industry remains controversial, with some issues remaining. These include the working conditions and the location of sex work.
Abel, Gillian, Fitzgerald, Lisa, Healy, Catherine with Taylor, Aline (editors). Taking the crime out of sex work – New Zealand sex workers’ fight for decriminalisation, Bristol: Policy Press, 2010. This is available from the New Zealand Parliamentary Library.
Canadian Library of Parliament, Prostitution: A review of legislation in selected countries, November 2011
Jordan, Jan. The sex industry in New Zealand: A literature review, Wellington: Ministry of Justice, March 2005
Ministry of Justice, Report of the Prostitution Law Review Committee on the operation of the Prostitution Reform Act 2003, May 2008
Prostitution Reform Act 2003, available from http://www.legislation.govt.nz/act/public/2003/0028/latest/whole.html
Prostitution Reform Bill 2000 as reported from the Justice and Electoral Committee, 2002
Research Services Analyst
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