New Zealand Law Society

SUBMISSIONS ON THE PROSTITUTION REFORM BILL

INTRODUCTION

The Society has no comment to make on the policy in this Private Member’s Bill. The purpose of this submission is to identify some issues that warrant further consideration by the Committee. The Society does not wish to appear and be heard on this submission.

CLAUSE 2

This clause is unnecessary in light of the Interpretation Act 1999, which provides that an enactment comes into force the day after which it receives Royal Assent unless otherwise specified.

CLAUSE 3

The purpose of the Bill is to "decriminalise prostitution" and, inter alia, to create a "framework which safeguards the human rights of sex workers and protects them from exploitation" and which "ensures the legislative framework of welfare and occupation health and safety protections is able to apply to sex workers." The consequential repeal in clause 10(a) gives effect to this purpose by repealing sections 147-149 of the Crimes Act 1961.

Human Rights Framework

The Bill does not set out exactly which human rights of sex workers it aims to protect and as such leaves unresolved the issue of whether prostitution itself is a violation of human rights. The international framework for human rights is centred upon the Universal Declaration of Human Rights which provides that human rights are universal, indivisible and inalienable. The Convention on the Elimination of All Forms of Discrimination Against Women also requires states to take all steps to eliminate prostitution.

New Zealand’s domestic legislation also provides a basis for human rights protection including the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. More specifically, there are some aspects of the business of sexual exploitation (including prostitution and trafficking) that violate human rights in particular ways (such as enforced prostitution, slavery and so on).

The relationship of this Bill to this broader human rights framework is unclear and should be more precisely defined. For example, if there are specific international instruments the Bill seeks to comply with (such as the UDHR or CEDAW), then these should be referred to in some purposive way in the clause 3.

Recommendation: Amend Clause 3 to specify the purpose of the Bill is compliance with specific human rights instruments or state more clearly which human rights are to be safeguarded.

Application of Health and Safety in Employment Act 1992

While the repeal of sections 147 to 149 of the Crimes Act makes it lawful to live off the earnings of prostitution, the practical effect of the application of the Health and Safety in Employment Act to sex workers and their employers under the Bill is unclear. The HSE Act establishes a regime for the regulation of "workplaces" (as defined in section 2) funded through levies on employers (section 59). It is not entirely clear how these levies would be assessed in this case. A "business of prostitution" (defined in clause 4 of the Bill) becomes an employer for the purposes of the HSE and other related employment legislation. The HSE requires employers to take all practicable steps to protect workers from hazards (including arrangements and activities that could result in harm). Workplace accidents (including illness) affect levies and also give rise to offences. The Act also provides that inspectors have powers to enter workplaces at reasonable times to conduct examinations. In particular, inspectors can require workers to undergo medical examinations.

In practice a code of practice would need to be developed in consultation with different aspects of this industry. Such a code would provide the basis for assessing compliance with the statutory duty to protect workers from hazards and accidents.

In the Society’s view more specific provisions applying HSE legislation and making clear the obligations of those in the business of prostitution to safeguard the human rights of sex workers is desirable, rather than leaving this to develop simply by operation of law.

Recommendation: Further specify the application of the Health and Safety in Employment Act 1992 and set out the process for development of an appropriate code of practice.

CLAUSES 4 and 7

Definition of "coerce"

The Bill defines "coerce" in a very wide way to mean knowingly preventing another person from exercising his or her free choice or to induce a person to act against his or her will including, for example, actual or implied threats of physical harm, sexual or psychological abuse, intimidation (including making of accusations or disclosures), harassment, damage to property, supply of certain drugs or the imposition of pecuniary or other penalties.

The definition is relevant for the subsequent offence in Clause 7, which makes it unlawful for a person to coerce another into providing sexual services or surrendering the proceeds of such services. The penalty for that offence is imprisonment for a term not exceeding 7 years.

The definition in clause 4 is much wider, for example, than section 129A of the Crimes Act which makes it an offence punishable by 7 years imprisonment to induce sexual connection by coercion. The definition for the purposes of the Crimes Act is much narrower (being used in a criminal rather than contractual sense). This is an area of some incongruity that arises perhaps inevitably in a Bill that seeks to characterise activity as contractual when the activity may, at the same time, be criminal. For example, if a person is coerced into a contract for sexual services he or she may also have been coerced into sexual connection. However, as framed, the Bill does not neatly fit with this aspect of the Crimes Act. The result could be that a person coerces another into providing sexual services (including sexual intercourse), in a manner listed under the clause 7, but is not guilty of inducing sexual intercourse under the Crimes Act.

While a wider definition of coercion under the Bill is not a difficulty per se, the problem arises when the penalties are the same. There are several options for dealing with that difficulty, such as retaining the most severe penalties for the more extreme coercive behaviour (such as threats and intimidation), the imposition of lower periods of imprisonment for less culpable behaviour, or including a power to impose fines, and so on.

Recommendation: Reconsider the penalties for offences relating to coercion in clause 7 of the Bill.

CLAUSE 9

The clause prohibits any person from contracting for commercial sex services with a child. A child is defined as a person under the age of 18 years. The age at which a person may lawfully consent to sex in New Zealand is 16. As framed the Bill would ensure compliance with the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography which will prohibit the sale or prostitution of children under the age of 18. The Prime Minister has recently signalled the Government’s intention to ratify this Protocol.

Under the Bill, it will be an offence to enter into a contract for commercial services with a child and it is no defence to such a charge that the "person believed, reasonably or otherwise, that the child was 18 years or over." (clause 9(7)). The creation of a strict liability offence in this area is controversial, particularly where the penalty for entering into a contract is imprisonment for a term not exceeding 7 years.

Penalties for offences usually have a hierarchy of seriousness. The most serious (and those attracting highest penalties) are those having a mental element of intent or knowledge, the next most serious are those involving mental elements such as recklessness or negligent omission, with the third category being some involuntary act (such as simply allowing a particular state of affairs to arise).

The object of the clause seems to be to ensure that young people are not involved in the sex industry and places the onus on the prospective client to ascertain the age of the sex worker in question. However, the imposition of a penalty of 7 years where there may be no actual knowledge or intention to have sex with a young person, is out of line with the general principles of when liability should be incurred and the level of penalty that is appropriate. This is particularly the case where the young person may be 16 or 17.

Accordingly, it is suggested that the clause be amended. There are at least two options. Either lower the maximum period of imprisonment to 5 years or create a set of offences (rather than just one) that is more in line with general criminal law principles such as by listing more specifically the offences involving intent and knowledge or recklessness with the most serious attracting the 7 year penalty.

Recommendation: Amend clause 9 so that offences relating to children are more in line with general criminal law principles.

 

John Gallie
Vice-President

8 March 2001