NEW ZEALAND LAW REFORM
4. The Prostitution Reform Bill
The bill provides for the repeal of current legislation which criminalises prostitution, and also provides specific protections.
The bill aims to do the following:
This aim would be addressed by repealing provisions that make prostitution a criminal activity and confirming that contracts for commercial sexual services can exist.
The following provisions would be repealed:
Safeguard the Human Rights of Sex Workers and Protect Them from Exploitation
This aim would be addressed by the inclusion in the Bill of the following provisions: that any sex worker may refuse to provide any commercial sexual service, and it will be an offence to coerce another person into providing commercial sexual services.
Under the present regime, sex workers can be exploited and forced to provide services they do not wish to provide (by clients and operators of massage parlours and escort agencies). Sex workers are sometimes placed in dangerous situations and the current legislation provides them with little protection.
It is important to recognise the power imbalance between the operators and the sex workers, and the many methods available to an operator to coerce a worker to comply with requests for sexual services. By including a right of refusal, the coalition recognises that the provision of sexual services is different to the provision of services of any other kind. It needs to be clearly stated that sex workers have the right to say no, in order that they have complete control over their own bodies.
To Promote the Welfare and Occupational Health and Safety of Sex Workers
This aim is addressed by the removal of current legislation which criminalises prostitution, so bringing sex workers within the gambit of employment protections available to all other workers.
The Prostitution Reform Bill will decriminalise prostitution, making it possible for sex workers to have employment contracts or work as independent contractors, depending on their workplace. Sex workers who are not independent contractors will be covered by the Employment Relations Act 2000. Employees will also be entitled to the minimum employment conditions provided by other legislation for all other employees in New Zealand , (for example, the Minimum Wage Act 1983). Independent contractors can seek redress for breaches of their contracts through the courts and the Disputes tribunal.
The Health and Safety in Employment Act 1992 places duties on persons in control of a place of work and this affords protection to both employees and independent contractors and other persons on the premises. While the Act arguably already applies to sex workers, decriminalising the industry will make compliance more transparent. The Bill places responsibility for safety in the hands of operators, and also to some degree on employees for their own safety. Violent clients could be a potential risk that would need to be eliminated, isolated or minimised under the Health and Safety in Employment Act. The risk of sexually transmissible infections could also require the availability and use of prophylactics to satisfy the requirements of the Act.
To Create an Environment which is Conducive to Public Health
This aim is addressed by requiring operators of brothels or commercial sex businesses to protect sex workers from disease by promoting and providing information on safer sex practices and the use of prophylactics.
Current legislation does not address the problem of sexual health, although the Crimes Act 1961, Section 201 makes it an offence to wilfully infect with disease. The Massage Parlours Act 1978 does not include any health obligations.
To Protect Children from Exploitation in Relation to Prostitution
This aim will be addressed by making it an offence to cause or assist children to participate in the sex industry. Children are defined as those persons who have not reached 18.
There are strong reasons supporting the age limit being 18, as opposed to 16 which is the age of consent under the Crimes Act 1961. Article 34 of the United Nations Convention on the Rights of the Child (ratified by New Zealand) protects children from all forms of sexual exploitation or sexual abuse. 'Child' is defined as a person under 18. In addition the Massage Parlours Act 1978 also refers to children under the age of 18. This issue was clearly considered by Parliament when that Act was introduced. There are therefore clear international obligations and legislative precedents that establish 18 as the appropriate age for inclusion in the Bill.
The Crimes Act 1961 provides that there is no defence to having sex with an under age person if the person charged believed that the child was of age or consented. For consistency, a similar sub-section is included in the Bill.
Created: November 25, 2000
Last modified: November 25, 2000
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