1. Introduction
1.1 Legal Situation Prior to the PRA
1.2 The Prostitution Reform Act 2003 (PRA)
1.3 Purpose and Main Features of the PRA
1.3.1 Prohibitions on Use in Prostitution of Persons Under 18 Years
1.3.2 Health and Safety Requirements
1.3.3 Small Owner-Operated Brothels
1.3.4 Brothel Operator Certification System
1.3.5 Territorial Authorities May Make Bylaws
1.4.1 The Committee Process
1.4.2 Statutory Purpose
1.4.3 Additional Matters Considered
1.5.1 University of Otago’s Christchurch School of Medicine
1.5.2 Victoria University’s Crime and Justice Research Centre
1.5.3 Other Research Used
1.5.4 Ministry of Justice
BACKThis chapter provides background to the passage of the Prostitution Reform Act 2003 (PRA), and outlines the PRA’s main points. This chapter also provides an overview of the role of the Prostitution Law Review Committee (the Committee) and its statutory review of the PRA. The research projects undertaken for the Committee’s review are described and the methodology used in them is explained. The structure of the Committee’s report is also set out.
The Committee’s role was to assess the operation of the PRA. The Committee did not have a brief to investigate all aspects of the sex industry, or issues associated with it. The Committee was required under section 42 PRA to:
assess the impact of the PRA on the number of sex workers in New Zealand;
assess the nature and adequacy of the means available to assist people to avoid or cease working as sex workers;
consider whether any amendments to the PRA or any other law are necessary or desirable;
consider whether the system of certification is effective or could be improved, whether any other agency should administer it, and whether a system is needed for identifying the location of businesses of prostitution;
consider whether any other amendments to the law are necessary; and
consider whether any further review or assessment of the matters set out above is necessary.
1.1 Legal Situation Prior to the PRA
Prostitution has a long history in New Zealand, as elsewhere, with the sex worker traditionally the one whose actions have been criminalised.
Under the Crimes Act 1961, brothel-keeping (section 147), living on the earnings of prostitution (section 148), and procuring sexual intercourse (section 149) were offences, each attracting a maximum penalty of up to five years imprisonment. Soliciting was prohibited under section 26 of 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.
The Massage Parlours Act 1978 introduced a regime for licensing massage parlours, which in effect provided fronts for prostitution, while at the same time attempted to maintain the illusion of legal sanctions based on a moral repugnance of commercial sexual behaviour. The Massage Parlours Act barely mentioned prostitution other than to prohibit anyone with convictions for prostitution-related offences either working in, or obtaining a licence to operate, a massage parlour.
The covert nature of arrangements in massage parlours often meant workers in the parlours were vulnerable to exploitation. Sex workers also still faced the possibility of arrest for soliciting. Unscrupulous parlour operators could threaten their employees with exposure if they tried to negotiate better pay or working conditions.
New Zealand’s position was typical of that taken in most comparable jurisdictions at the time (Australia, Canada and the United Kingdom) in that it sought to regulate the industry, but did so by penalising the worker. This situation worked to the detriment of the workers’ health and well-being. It resulted in a double standard of morality that increasingly came under criticism and led to calls for reform.
BACK 1.2 The Prostitution Reform Act 2003 (PRA)
1.2.1 Passage of the PRA
In the mid-1990s, the New Zealand Prostitutes’ Collective (NZPC), some major women’s organisations, legal volunteers, and members of NGOs and various political parties, who were strong advocates for reform, drafted a bill to reform New Zealand’s prostitution laws by decriminalising the criminal offences of brothel-keeping and soliciting. In 1999, the bill was taken up by Labour MP Tim Barnett. The Prostitution Reform Bill (the Bill) also aimed to ‘safeguard the human rights of sex workers and protect them from exploitation, to promote the welfare and occupational health and safety of sex workers and create an environment which is conducive to public health, and to protect children from exploitation in relation to prostitution’ (Prostitution Reform Bill, 2000).
The Bill was drawn from the ballot of Private Members Bills in 2000, and had its first reading in Parliament in October that year. The Bill took two and a half years to pass through the Select Committee phase. There were 221 submissions to the Justice and Electoral Committee (the Select Committee) on the Bill, representing a wide range of opinions. Overall, approximately 41% of submissions generally supported the Bill and approximately 56% were generally opposed; 3% were neutral.
The Bill was hotly debated at each stage of its progress through Parliament, but it was eventually passed into law, 60 votes to 59, with one abstention. MPs voted as a matter of personal conscience rather than along party lines. The PRA came in to force on 28 June 2003.
Significant changes were made to the Bill during the Parliamentary process. Notably, a system of certification for brothel operators was included along with provisions prohibiting people in New Zealand on limited entry visas working or investing in businesses of prostitution. Also included at the Bill’s final stage was part four of the Bill which created the Prostitution Law Review Committee (the Committee) and the statutory review of the PRA.
BACK 1.3 Purpose and Main Features of the PRA
The purpose of the PRA (section 3) is to decriminalise prostitution and to create a framework that:
safeguards the human rights of sex workers and protects them from exploitation;
promotes the welfare, occupational health, and safety of sex workers;
is conducive to public health; and
prohibits the use in prostitution of persons under 18.
1.3.1 Prohibitions on Use in Prostitution of Persons Under 18 Years
Sections 20 – 22 prohibit the use of persons under the age of 18 in prostitution. It is an offence to arrange for or to receive commercial sexual services from a person under 18. It is also an offence to receive payment for the commercial sexual services of a person under 18 years of age. Under section 23, no one under the age of 18 years can be charged as a party to offences under sections 20 – 22. The PRA increased the penalty from a maximum of five years imprisonment (section 149A of the Crimes Act) to a maximum of seven years for being a client of a person under 18.
It is not an offence for a person under the age of 18 to provide commercial sexual services. Rather, they are considered to be a victim of the offences described above. As of March 2008, 92 charges had been laid in relation to the use of under age people in prostitution. Thirty-four of these charges have resulted in a conviction; with a further 17 still to be decided. The use of under age people in prostitution is discussed in chapter seven.
1.3.2 Health and Safety Requirements
Section 8 of the PRA requires operators of businesses of prostitution to adopt and promote safer sex practices. It is an offence to contravene this section; anyone who does so is liable upon summary conviction to a fine not exceeding $10,000.
Section 9 requires sex workers and clients to adopt safer sex practices. Failure to do so may result, upon summary conviction, in a fine not exceeding $2,000. As of January 2008, one person (a client) has been convicted under section 9; they received a fine of $400.
Sections 24 – 29 create powers of entry for the purpose of inspection for compliance with health and safety requirements. For the purposes of the PRA, Medical Officers of Health are deemed inspectors and may enter any premise they have reasonable grounds to believe is a business of prostitution, but must either have consent of the occupier or a search warrant to enter a home (the location for most SOOBs). Occupational health and safety of sex workers is discussed in chapter four.
1.3.3 Small Owner-Operated Brothels
Small owner-operated brothels (SOOBs) are defined under the PRA as brothels in which no more than four sex workers work and where each individual sex worker retains control over his or her earnings. SOOBs are deemed not to have operators and therefore a brothel operator’s certificate is not required.
1.3.4 Brothel Operator Certification System
Part 3 establishes a certification system for brothel operators. Every operator of a business of prostitution must hold a valid operator’s certificate. To be eligible for an operator’s 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 person who operates a business of prostitution without a valid certificate is liable on summary conviction to a fine not exceeding $10,000. The brothel operators’ certification system is discussed in chapter six.
1.3.5 Territorial Authorities May Make Bylaws
Sections 12 – 14 allow territorial authorities to make bylaws regulating the location of brothels and the signage and advertising associated with commercial sexual services. Three bylaws have been challenged in court, two of which were overturned on the basis that they prohibited brothels operating within the city, rather than merely regulating the location of brothels. The response of territorial authorities to the PRA is discussed in chapter nine.
BACK 1.4 Review of the PRA
The Prostitution Law Review Committee was established under Part 4 of the PRA to review the operation of the PRA. The Committee has drawn on the purpose of the PRA in structuring its review and in writing this report. The Committee has also kept in mind the first part of the PRA’s purpose which states that the PRA is not intended to endorse or morally sanction prostitution or its use. The Committee has endeavoured to take as pragmatic a view as possible, while still remaining cognisant of the concern prostitution and the sex industry engenders in some sectors of the community.
1.4.1 The Committee Process
The Committee consists of eleven members appointed by the Minister of Justice. A list of the Committee members is in Appendix 1.
The Committee first met in March 2004 and has continued to meet as and when required. The Committee met monthly during the later phase of writing this report. The Committee usually met in Wellington but travelled to Auckland and Christchurch to hear from representatives of territorial authorities, NGOs, Police, and the sex industry. The Committee was also able to view brothels in each of the centres visited and speak to operators and sex workers. The Committee also visited areas of street-based sex work in these cities.
The Committee invited interested NGOs and other organisations that had made submissions on the Prostitution Reform Bill to provide information for this review. In 2007, the Committee also placed public notices in the major daily newspapers calling for information from interested parties.
1.4.2 Statutory Purpose
The Committee was charged with assessing the number of sex workers in New Zealand at the time of decriminalisation. This formed the basis of the Committee’s first report, The Nature and Extent of the Sex Industry in New Zealand: An Estimation, which was released in 2005.
The Committee’s second task was to review the operation of the PRA three to five years after its enactment, focusing on whether the PRA is achieving its purpose. The review was also to include an assessment of the operation of the PRA since its commencement, the impact of the PRA on the number of persons working as sex workers in New Zealand, and the nature and adequacy of the means available to assist persons to avoid or cease working as sex workers. The Committee was also tasked with considering whether the system of certification is working adequately, whether any amendments to the PRA or any other law was necessary, and whether further review was required.
1.4.3 Additional Matters Considered
In the course of gathering information for the current review, the Committee identified additional matters that affect the operation of the PRA and the sex industry in New Zealand, but which the PRA is silent on. Street-based prostitution is a sector of the sex industry that is very visible and in which many of the harms associated with prostitution arise and may be magnified. Street-based prostitution is discussed in chapter eight. Another area of concern the Committee is not specifically tasked to consider is trafficking in persons, this is discussed in chapter 13.
BACK 1.5 Report Based on Research
In July 2005, the Committee commissioned Victoria University’s Crime and Justice Research Centre (CJRC) to complete an evaluation framework to ensure the Committee met its statutory requirements. The framework recommended a mixed method approach to incorporate perspectives from multiple informants and stakeholders. The framework identified five evaluation projects which needed to be completed for the review. The majority of the research identified in the framework has been carried out by the Christchurch School of Medicine (CSOM), Crime and Justice Research Centre (CJRC), and the Ministry of Justice. NZPC also carried out audits of advertisements for sexual services for both the CSOM and the Ministry of Justice. Research for the Committee’s review started in 2006 and was concluded in late 2007.
Where research data is provided in percentage form, the Committee has attempted to supply numerical equivalents. These should be treated as approximations.
1.5.1 University of Otago’s Christchurch School of Medicine
The CSOM received funding from the Health Research Council of New Zealand and the Ministry of Justice to undertake an assessment of the impact of the PRA on the health and safety of sex workers. The CSOM’s findings are reported in The Impact of the Prostitution Reform Act on the Health and Safety Practices of Sex Workers, which is available on the Ministry of Justice website: www.justice.govt.nz.
CSOM researchers Gillian Abel, Dr Lisa Fitzgerald, and Cheryl Brunton undertook a multi-methods research project in five locations in New Zealand. Three major cities were included (Auckland, Christchurch, Wellington) along with a smaller regional centre (Nelson) and a rural district (Hawke’s Bay including the cities of Napier and Hastings). The study used a community-based participatory approach, with the CSOM researchers working in partnership with NZPC.
The first phase of the study involved exploratory focus groups with sex workers and regulatory officers (staff from Occupational Health and Safety, territorial authorities and Medical Officers of Health). The data collected in phase one was used to inform phases three and four of the study.
The second phase of the study was an estimation of the number of sex workers in the study locations. Methodology and results from this phase are discussed in chapter two.
The third phase of the study was a survey of 772 sex workers in the five locations. Participants were not randomly selected as it was considered this may cause distrust and affect the response rate and compromise the validity of the sample. Steps were taken to represent the overall demographic make-up of the population of sex workers within the sample. Participants were from both large cities and smaller towns. There were participants from the street, private, and managed sectors. Different gender identifications (male, female and transgender) were also represented.[1] Participants whose English was not sufficient to understand the questions without the aid of an interpreter were excluded. However, few people were excluded on this basis.
A questionnaire was designed by the CSOM in conjunction with the NZPC and the Ministry of Justice. Many of the questions were the same as those used in the CSOM study of the health and safety practices of sex workers in Christchurch in 1999. Comparisons between the 1999 and 2006 Christchurch results were possible, but not for the rest of the country. The questionnaire asked sex workers about themselves (demographic information), their entry into sex work (including age at time of starting sex work and sector of the industry), and their experiences while working (nature of their work, violence or other bad experiences with clients). The questionnaire also asked about sex workers’ health including their use of health services, drug use, and their sexual health practices.
The fourth phase of the study included in-depth, qualitative interviews with 58 sex workers in the study locations. Potential participants were either contacted via telephone calls or when outreach workers accessed them in NZPC offices, brothels, escort agencies, streets or private homes. Potential participants who were not connected to NZPC were also recruited to try to reflect the diversity of the industry within the sample. Attention was given to gaining participation of male, transgender, street, brothel, escort and private workers as well as small town and big city workers. Direct quotes from these interviews have been used throughout this report. Names and other identifying details have been changed to protect the participants’ identity.
A semi-structured interview guide was developed following analysis of focus group discussions undertaken as the first phase of the study. Participants were provided with information sheets and written or oral consent was taken to participate in the study. Each participant was reimbursed with $30 cash in appreciation of their time. The interviews were conducted by NZPC staff (trained by CSOM researchers) and lasted between 30 and 120 minutes, with the average interview taking one hour to complete.
Qualitative interviews were also undertaken with six Medical Officers of Health (Inspectors under the PRA), two sexual health promoters, and an occupational health nurse employed by the Department of Labour. An analysis of the content of eleven submissions by Medical Officers of Health on proposed territorial authority bylaws and district plan changes was also carried out.
1.5.2 Victoria University’s Crime and Justice Research Centre
The Ministry of Justice contracted the CJRC to carry out key informant interviews with NGOs, brothel operators, and community groups. The results are in the CJRC’s Key Informant Interviews: Review of the Prostitution Reform Act 2003, which is available on the Ministry of Justice website: www.justice.govt.nz.
Researchers Dr Elaine Mossman and Pat Mayhew undertook a total of 73 interviews involving 86 individuals. Interviews were conducted in Auckland, Christchurch, Wellington, Nelson, and Hawke’s Bay. There were 48 interviews with NGOs and 38 with brothel operators. Of the operators, 13 were SOOBs. The researchers consider good coverage was achieved and the participants reasonably reflected the range of those involved with the sex industry in New Zealand.
Interviews focused on the effectiveness of the PRA in terms of achieving its purpose, whether the brothel operator certification system was working, and the response of territorial authorities to the law reform. Participants were also asked about their level of support for the PRA before and after its enactment. Information from the key informant interviews has been used throughout the Committee’s report.
The Ministry of Justice also contracted the CJRC to undertake a literature review of overseas models of prostitution law reform. Dr Mossman and Ms Mayhew compiled three reports, they are:
Exiting Prostitution: Models of Best Practice;
International Approaches to Decriminalising or Legalising Prostitution; and
Central Government Aims and Local Government Responses: The Prostitution Reform Act 2003.
These reports are available on the Ministry of Justice website, www.justice.govt.nz. Information from the CJRC reports is used throughout the Committee’s report.
1.5.3 Other Research Used
The Committee has also drawn on research projects that were not specifically commissioned for its review. Research from both New Zealand and overseas has been used. Sources of information have included reports by NGOs, the findings of overseas government bodies tasked with considering options to manage prostitution, and postgraduate dissertations. The Committee has been cautious regarding the origin of each information source and recognises that not all reports are robustly researched or without bias.
1.5.4 Ministry of Justice
The Ministry of Justice co-ordinated the research projects for the Committee and gathered additional information from central government agencies, special interest groups and the general public. Central government agencies were asked about actions taken as a result of the PRA. Of particular interest were any policies or programmes put in place to assist people (particularly young people) to avoid working in or exit the sex industry. Agencies were also asked what impact if any the legislation has had on their core business. The information received from central government, the public, and interested bodies has been used throughout this report.
The Ministry was also assisted by Local Government New Zealand (LGNZ) to send a questionnaire to the 73 territorial authorities asking about the impact of the PRA. Territorial authorities were asked whether they had passed any bylaws, or made changes to their district plans, as a result of the legislation. The responses to the questionnaire are described in chapter nine.
Footnote1 The term ‘transgender’ was used by the researchers to describe a diverse range of transgender women including whākawahine and fa’afafine. The research did not identify male sex workers who identified as transgender men.