The NZ Herald recently featured an article detailing the increase in foreign sex workers in New Zealand. New Zealand is noted as having some of the most progressive prostitution law regulations in the world. However, this progressivism does not extend to foreign workers, who are banned from taking up work in the sex industry. Given both anecdotal and statistical evidence appearing in the mainstream media, it appears that there are certainly significant numbers of foreign sex workers in New Zealand, working in breach of immigration law.

Take a look at section 19 of the Prostitution Reform Act 2003 and in particular the first two subsections;



19 Application of Immigration Act 2009

(1) No visa may be granted under the Immigration Act 2009 to a person on the basis that the person—

(a) has provided, or intends to provide, commercial sexual services; or

(b) has acted, or intends to act, as an operator of a business of prostitution; or

(c) has invested, or intends to invest, in a business of prostitution.

(2) It is a condition of every temporary entry class visa granted under the Immigration Act 2009 that the holder of the visa may not, while in New Zealand,—

(a) provide commercial sexual services; or

(b) act as an operator of a New Zealand business of prostitution; or

(c) invest in a New Zealand business of prostitution

…

The effect of these two subsections is to ban temporary entrants to New Zealand from owning, operating or working in the sex industry. They cannot engage in sex work while in New Zealand, nor can they apply for a visa on the basis of this work.

There is quite clear legislative intent being implemented here. The provisions around immigration status and sex work were introduced via a Supplementary Order Paper (SOP), during the progress of the Prostitution Reform Bill. The then Minister of Immigration, Lianne Dalziel, spoke about the intent behind this particular section, saying that the SOP:

“Relates to amendments in respect of the Immigration Act to ensure that our obligation under the United Nations Convention Against Transnational Organised Crime and its protocols on the smuggling of migrants and trafficking of persons can be fully engaged in respect of prostitution and commercial sexual services. That is to ensure that in decriminalising the laws on prostitution, we do not unwittingly allow people to be brought into the country for the purposes of prostitution. [Emphasis added]”

This deals with a concern about human trafficking, where it could be possible for people to be brought to New Zealand for the purpose of forced prostitution, with this being legitimised by the grant of visas that allowed them to carry out this work. However, in practice, does this in fact put foreign sex workers in an even worse position than if it were legal for them to take on this work?

The argument pursued by some is that, by putting foreign sex workers in the position of working illegally, it makes it less likely that they will be able and willing to inform the authorities of forced prostitution or bad practices within the industry. We know that there are barriers to migrants seeking the assistance of Government authorities, when it comes to revealing exploitation of migrant workers. People being exploited may fear that their own visa status may be jeopardised by revealing the exploitative tendencies of an employer, as the migrant themselves may be working in breach of their visa conditions. Foreign sex workers are in the unenviable position of being both in an industry where there is a greater risk of exploitation taking place, as well as not having lawful status as a result of their work.

This author has heard of a case where a foreign sex worker, allegedly forced into the sex industry against their will, went to seek assistance from Immigration New Zealand, but instead had her visa cancelled. While the situation was eventually resolved and remains something of an outlier, it nevertheless illustrates the concerns that foreign sex workers may have about seeking assistance.

While some of the issues here are specific to foreign sex workers, there are lessons to be learned for all foreign workers in New Zealand. It pays to get good advice from the outset, to ensure that you are meeting your legal obligations under the Immigration Act (and all relevant New Zealand law, for that matter). What it also shows is that if you or someone you know finds themselves in a situation where you are being harassed, exploited, or otherwise made to do things you don’t want to do, that help is always available.

A lawyer’s paramount obligation is to ensure that anything a client discloses to them is held confidential – this means they cannot reveal anything you say to them to a third party. This way you can be assured peace of mind that anything you say to a lawyer will not be revealed to anyone else. Immigration advisers and lawyers are well equipped to help those in need of assistance, so you should seriously consider seeking advice if possible.