No One Left Behind: The Fight to decriminalize Migrant Sex Work in New Zealand

In 2003, the Prostitution Reform act was passed which decriminalized sex work for New Zealand citizens as well as permanent residents. However, decriminalization was not extended to migrant sex workers. This has resulted in two decades of exploitation, with coercion and criminalization for migrants who choose to participate in sex work in New Zealand, because they can’t access the same working rights available to other sex workers. This year, a parliamentary petition was launched by sex worker and organizer Pandora Black in order to repeal Section 19 of the Prostitution Reform Act 2003 and apply the same labour rights and protections that citizens and permanent residents enjoy to Visa-holding migrant sex workers. I talked to Dame Catherine Healy, founder of the New Zealand Sex Workers’ Collective (NZPC), about the current legislation and how it came about, as well as sex worker organizing around this issue in Aotearoa¹. Catherine Healy is also a sex worker’s right activist, a field reasercher and a former sex worker. This is what she had to say.

Jesse: In 2003, the Prostitution Reform Act decriminalized sex work for citizens and permanent residents, but not for migrants sex workers. How are migrants treated under the current Prostitution Reform Act?

Dame Catherine Healy: I want to say that we were absolutely devastated when that was a condition for decrim which was put in at the 11th hour by then minister of immigration Lianne Dalziel who had been lobbied by anti-trafficking activists. She made her support conditional on the fact that migrants wouldn’t be able to come to this country with the intention of becoming sex workers, and it made no sense to us. And as a consequence, everything you can imagine that would happen in terms of sex work criminalization has happened and continues to happen. Migrant sex workers are sometimes targeted because it’s common knowledge that they’re working in breach of our sex work legislation in terms of immigration and are therefore forced to work in a criminalized way.

Also, authorities look for them with the pretext that they’re trying to see if migrant sex workers are victims of trafficking, and this is really terrifying. Immigration authorities will go out several at a time, and in one scenario that I heard described about 20 officers surrounded a particular brothel to look to see if there were trafficked sex workers in there. Its extremely scary for people in this situation who have elected to be sex workers, and who have the right to work in any other way in this country, bar sex work. So, it is of grave concern. And of course, if you are deported you are served a “ deportation liability notice ” which can document the fact that you’ve been a sex worker in this country and linked in breach of that legislation, which is incredibly stigmatising for people who have been deported back to their own countries where frequently and often enough, sex work is not suported.

So, the law is if you come to this country with the intention of being a sex worker and require a work visa, you are not allowed to be a sex worker. It causes a lot of harm. And we’ve had sex workers who have been assaulted and who have been afraid to report these assaults to the police. We’ve had staff in hospitals contact us and say “ Look we’re dealing with someone and they need your support ” and then we find out that the person is a migrant sex worker who has been beaten up or robbed or worse. And these are direct consequences of a law that continues to criminalize them as they’re directly exposed to harms that they shouldn’t be exposed to as a consequence of this legislation.

Jesse: How has working as a migrant sex worker in New Zealand changed since the advent of the Prostitution Reform Act?

Dame Catherine Healy: Prior to the Prostitution Reform Act in 2003, the sex workers who were arrested predominantly weren’t migrant sex workers, they were New Zealand citizens. So, we had that experience throughout our different communities of being arrested and taken to court.The law didn’t impact previously on migrant sex workers as much as it does now. They are the population who are exposed to being tipped to immigration on searches for victims of so-called trafficking.

Jesse: Yeah, anti-sex trafficking legislations are steeped in these racist reforms and it’s the same all over the world. I was thinking about that earlier this year when, in the UK, the parliament was considering passing the Sexual Exploitation Bill and all these liberal NGOs who are of course funded by billionaires and complicit in the military industrial complex and actually do participate in egregious acts are fronting against so-called  “ sex-trafficking ” while they themselves are involved with these atrocities. It’s quite hypocritical and disgusting.

Dame Catherine Healy: It is. I think that’s the thing. You have a groundswell of people who are earnest about labor rights, and they are attracted to talking about reform in this respect. The terminology “ modern day slavery ” has come up on the back of anti-trafficking discourse. There’s quite the eclectic group of people with an interest in unions and with an interest in improving labor conditions that have been attracted into these discussions but we’ve got to be so careful in developing legislation in which sloppy words like “ exploitation ” are really defined carefully so that we’re not adding and causing harm.

This is our lot in this country as people concerned about the rights, and safety, and health, and well-being of sex workers, that there not be legislation that’s going to contribute even more harm. We need to get political action to repeal the legislation that is causing harm against migrants in this country. We’ve been waiting since 2003 for a balance in the parliament where we think we could garner enough support to see the repeal of this legislation, but even so we feel that the politicial support is going to be very hard to build so its a real struggle to get understanding in relation to how things could improve so dramatically with good labour rights and with good immigration rights for sex workers who are migrants.

Jesse: What is the government’s narrative for decriminalizing sex work for New Zealand citizens and permanent residents but still not allowing it for migrant sex workers? How do you answer to that?

Dame Catherine Healy: At the time in 2003, when the vote went through, 120 politicians were allowed to vote and one politician abstained. He felt so conflicted that he was unable to vote for or against and so it passed into legislation by one vote but it was a very contested piece of legislation. It wasn’t promoted by the government of the day as it was just one member of the parliament who took it through as a private member bill and then prime minister Helen Clark supported it. There were people in her own government and party who opposed the bill and there were people in the opposition parties who supported it (the Green Party for example supported it entirely) and we do believe they would support the repeal of the migrant legislation entirely today as well. The government also thought to couch the legislation with a moral code: they said that while they supported the decriminalization of prostitution, they didn’t morally endorse it. So there was an attitude that the legislation wasn’t a quite comfortable fit with the government and I think a part of that rational for the particular wording used had to do with government not wanting to be in the position of ever being accused of coercing people into sex work. For example, some people ask why can’t Work and Income (which is our big government welfare agency and a part of the Ministry of Social Development) promote the fact that brothels have spaces for sex workers to work in? And the government would claim they don’t allow that because they could be accused of saying “ Get off your job seekers benefit and go work in a brothel ” and that would morally compromise the government.

So I think the fact that the legislation places sex workers at its heart proves that the aims of the Act are to protect the human rights of sex workers, et cetera and that is a good thing, but we had a lot to do with the writing of the legislation that we couldn’t control as it went into the political environment and was pulled in so many different directions by the debates that occurred in that context. Including the debate that the politicians had to vote on inside the full committee of the parliament, and that’s where a lot of the changes occurred. We couldn’t control the fact that the anti-migrant clause was put in there; we could say that we didn’t agree with it, but we ultimately couldn’t control it once it was in that context. So yes, I think while fighting for the law in respect to sex workers there’s always going to be something on the horizon. It’s a long, long process and we can make choices, but it’s always going to be hard to get exactly what you want. Some people will hold out until they get exactly what they want, but we chose not to. We chose to go with what we could get and push as many people onto the bus as we could.

I can’t speak for the government as a whole, but I know that there are still people inside our government who really believe that part of the legislation that is anti-migrant has actually curbed the potential for people to be trafficked. I don’t understand how they believe that knowing that the evidence doesn’t show that at all, and that the evidence in fact shows the reverse to be true. It shows that the existing legislation which is anti-migrant creates an environment where migrants can be exploited, and are indeed targeted and are victims of horrible crimes because of that vulnerability. Because they are not able to work here with the legal support available to all other sex workers. It’s really hard, people dig in and they form these opinions, and I think sometimes they just cannot see the wood for the trees with issues that impact sex workers. There’s this perception that migrants are not fully fledged in some way, that they’re not particularly able to make their minds up. I think there’s a racist undercurrent which happens in relation to our biggest migrant population who are coming in from Southeast Asian countries where the perception may well be that they are victims of gangs or being trafficked around the world against their will. The notion that these are actually people making their own minds up to move here, and are also making certain decisions in relation to their circumstances about the way in which they navigate different systems and how they move around the world, is a foreign concept to a lot of the lobbyists who are determined to conceive of these migrants as trafficked and vulnerable.

Jesse: NZPC has existed since the 80s. How did sex work organizing address issues relating to migrant sex workers? How do you create alliances with the broader movement for the rights of migrant people?

Dame Catherine Healy: Going back to our history, I think in 1987 we started, but in 1988 we contracted with government and also coincidentally that’s when noticeably a lot of sex workers were coming to work in New Zealand from Southeast Asian countries. Airfares had become cheaper and there were a lot of patterns of migration. Auckland for example has become a big city where I think a fifth of the population are people who would identify as coming from that cluster of Southeast Asian countries and inevitably building alliances there similar to what’s happening in wider societies. So it’s not acceptable to think there is just a certain response that’s going to be one size fits all, you’re going to have to build alliances and work out.

For us back then we were setting up clinics in our community bases, and we were working closely with the sexual health team as they established an outreach service with us so we could provide outreach that was culturally appropriate and was led by people with sex work experience from Thailand, and similarly there were clinics set up specifically for sex workers from Thailand and this was also the case later on with sex workers who were coming in from China and different countries in that region.

And yes, I think that you have to build alliances and of course we have a migrant education information project with a worker who is involved with that and who is from those communities and can reach out and provide support. I think there are definitely other issues that affect migrants, for example contract work to be an independent contractor if you’re a student and you’re coming to study in this country. You’re an international student so it’s not possible to be an independent contractor, which sex workers are and are regarded to be and so there’s a push to allow for people to be independent contractors. As a student you can work for 20 hours a week here if you’re a migrant or an international student but some people would say “ Okay that’s very difficult to work just as an employee ” And they prefer to be independent contractors so I think it’s important to support movements that affect other populations.

We’ve worked on different issues. For example the process we went through with other organizations around the non-governmental CEDAW² report, we worked with Shakti who represent migrants in the broader context. When we got to do the presentation at the UN, Shakti carried our message through about sex workers and supported us on this. So there’s all sorts of ways you can connect to other organizations, you look for the themes and concerns in common and you support each other. There’s some broad umbrellas like the National Council of Women of New Zealand for example who provide a broad umbrella of support and there’s rainbow organizations and lots of ways in which we can collectivize with like-minded organizations who are able to support, or for whom we could provide some support.

Jesse: How have these issues changed since the Prostitution Reform Act 2003?

Dame Catherine Healy: I think we’ve become more conscious about the vulnerabilities there and now people are more intolerant and more impatient for migrant communities to have better rights and better conditions. Oddly enough, I think that some of the anti-trafficking discourse has really exposed a lot of the appalling labor conditions that happen in these contexts. And that’s been a good thing.

Jesse: In Canada, sex workers are currently suing the government to repeal the Protection of Communities and Exploited Persons Act, the law that criminalized sex work in Canada in 2015. Though if this Constitutional challenge is won, migrant sex workers still won’t be able to work legally in Canada. Before the Prostitution Reform Act 2003 was the issue of sex work and migration talked about? Are there things you wished you did differently looking back?

Dame Catherine Healy: I think, yes. For us the parliamentary process and seeing a bill go into parliament and come out with 3 intense debates and then being voted into law with flipping support was a new environment and it’s hard in retrospect to say if we should have been acting differently. We were quite noisy at the time, but we were so jolly grateful to get any change whatsoever as well and as I said it wasn’t the migrant community in those times that was being affected as harshly as the Māori population and street based sex workers in particular. So yes, maybe we would have said “ No we can’t go through with this ”, but I think we were damned if we did and damned if we didn’t. It was a very difficult call that we didn’t feel was ours to make as we felt it was beyond our control as well, it was in the parliamentary environment.

I think in regards to the issues related to migrant sex workers, some of the discourse that was around at the time and still is was to do with trafficking and “ sex slaves ” and that offensive way of describing a population of sex workers who migrate for a variety of different reasons to work in other countries. Fortunately, I think, at least in this country, that it is quite rare to hear sex workers described in that way because there is a sensitivity in some of the anti-trafficking circles here not to do that and to be a bit more respectful.

Yes, it’s ongoing. We made a recommendation to the CEDAW Committee who picked it up and made a recommendation back to our government so we’re hanging onto that as a lever to really get some action. We’ve been building support to have this piece of legislation amended on that recommendation. And we’ve been really heartened to see the number of different organizations who have just in a few weeks signed on to support us in this call. We are hoping that a member of parliament who has approached us and had discussions about sponsoring a bill through will be mad enough and really angry or passionate enough to do this because it is a rough injustice that sits there like a scab, not only on the laws that govern sex work but on the laws of our country as a whole. I mean it’s not a piece of legislation that should be endorsed here, it’s hostile, it feels racist, and really it should be utterly repealed.

I’m not sure, we were fighting hard all the way through and there were so many issues to fight for and in that context things moved quite quickly in the final analysis and I don’t know what we could have done differently really. Some say we should have withdrawn our support, but I don’t think that actually occurred to us. We wanted to fight to achieve what we could achieve so if we were back in those times with the knowledge that we have today then maybe we would have had lots of evidence (which we do today, we have lots of research that shows and speaks to the harm thats caused to the migrant sex worker communities if they’re exposed to criminalization) but we didn’t have that, we just knew that sex work should be decriminalized, that sex workers’ rights as a whole should be upheld, and people should have access to speak up if they’re in positions where theyre being harmed. And yes it’s an ongoing battle, there’s stigma, there’s discrimination. We knew about that, we knew that we wanted to address that as well, but we couldn’t in the context of the private members bill at that time because it would have involved another piece of legislation in the Human Rights Act, and we didn’t really know how to tease that out. So there was quite a lot of stuff that we now know that we could have done but we didn’t know at the time.

Jesse: Is there anything you would like to add or say?

Dame Catherine Healy: I think the international raising of the profile for migrant sex workers is really important. Sex workers travel everywhere and work eveywhere just like people from all other occupations so it’s great to work on this fundamental right, the freedom to travel.