Amicus Curiae: Exploitation or Ejection: The Legal Status of Migrant Sex Workers

By Amy Dresser

Immigration New Zealand recently made the news for including, and then excluding, sex work on a skilled employment list. However, this sheds light on the bigger issue regarding the legal protection of sex workers on temporary work visas in New Zealand.

Legal status of sex workers in New Zealand

Sex work was legalised by the Prostitution Reform Act 2003.

Section 19 prohibits people visiting New Zealand on temporary work visas from engaging in sex work. This is the only type of work which is prohibited, despite the fact that sex work is legal in New Zealand and has been since well before the Immigration Act 2009 came into effect. Therefore, this is not a legal issue but a policy issue.

The exclusion of sex workers on temporary visas from legal protection is no less than a by-product of bigotry and residual intolerance of sex work in general. The first listed purpose of the Prostitution Reform Act is to “(safeguard) the human rights of sex workers and (protect) them from exploitation” upon the decriminalisation of sex work. Why was this not extended to all sex workers? The law is arbitrary and it is failing those most vulnerable – people who may not speak English or have many connections in New Zealand, yet cannot seek help out of fear of deportation.

Some argue that it is fair to exclude sex work from working in New Zealand and from the skilled employment list (which I will shortly address) because there is no excess demand for sex workers in New Zealand. However, there are many other skills on this list which are not in short supply in New Zealand: historian, actor, and dietitian, to name a few. Sex work is prohibited for people on temporary visas allegedly due to fears of human trafficking, however it would be naïve to assume historic prejudices about sex work and immigrants are irrelevant.

Immigration New Zealand controversy

It was recently revealed that sex worker was on the skilled employment list set up by the Australian and New Zealand Standard Classification of Occupations (ANZSCO), which enabled work visa applicants to claim “points” in the application process. This news was met with public uproar, and caused Immigration New Zealand to then remove sex worker from the list.

While this controversy is really a non-issue, considering it would be illegal for someone on a temporary work visa to do sex work anyway, it brought other issues out of the shadows, such as the fact that many people on temporary work visas do sex work regardless.

Potential for (and reality of) exploitation of sex workers

The central consequence of the law against people with temporary visas doing sex work is not preventing people doing sex work – Newshub has confirmed that Immigration New Zealand often does not act on complaints of alleged illegal sex work – but that those who do sex work have no legal protection. This leaves sex workers open to exploitation and blackmail, because their fear of deportation can be used against them.

While it is widely accepted that there is no large scale human trafficking in the sex industry, the Global Alliance Against Traffic in Women (GAATW) highlights that the anti-trafficking discourse allows individual instances of exploitation to slip by. Migrant sex workers on temporary visas must be available to work at any time of the day and submit to unreasonable requests by clients, because the workers are not in a position to report abuse.

In a 2018 report published by GAATW, sex worker Amy commented that “they will grab you and say ‘I’m gonna do this’ and you can say ‘no’ but they won’t listen to you… you will say ‘stop’ and they say they want their money back…’”

Similarly, Lydia described how a migrant sex worker was blackmailed by a client, who threatened her, stating “you have to have sex with me for free or I’m going to call immigration” and proceeded to track her down twice after their initial encounter, despite her changing her work name and phone number.

Sex workers on temporary visas (or even without visas at all) are subjected to sexual violence, yet they are not in a position to report it because of the fear of deportation. But who is really doing more harm: a rapist or a woman earning a living?

A way forward?

There is no doubt that the current system is not working, given that an estimated 40% of sex workers are in New Zealand on temporary visas. Minister for Immigration Iain Lees-Galloway voiced concerns that legalising sex work for migrants on temporary visas would encourage human trafficking. This is a valid concern. However, this is not inevitable. To the contrary, GAATW argues that “the current policy creates conditions that are conducive to trafficking, rather than protecting against it.”

A better policy would protect both victims of trafficking and victims of sexual violence and exploitation by employers and clients. This could mean better regulation of commercial sex services in general, more transparency and/or a different system entirely. It is clear the current policy is only facilitating exploitation.

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