Sex work: Are sex-workers in decriminalised or
regulated legal environment just normal workers?
Annick Masselot, Associate Professor in Law, University of Canterbury, NZ
annick.masselot@canterbury.ac.nz
4th European Conference on Politics and Gender (ECPG)
11-13 June 2015, Uppsala, Sweden
Prostitution and sex workers: Alphabet Soup
Prostitution can be described as the “offering or
undertaking of sexual actions for payment”
A sex worker is “a person who provides commercial
sex services”
Both terms are often used interchangeably;
however prostitution is the business, or business
sector, while sex workers are the workers, or
employees.
Legalised/Regulated and Decriminalised
prostitution
• Legalised or regulated jurisdictions recognise that
legalising prostitution is necessary for social stability, but
see restriction as essential for public order and health.
The Netherlands, Germany, the USA state of Nevada, and
many Australian states (Victoria, Queensland, ACT and
Northern Territory).
• Under decriminalised jurisdiction, there is no
prostitution specific criminality associated with the
industry. Decriminalised systems emphasis the human
rights and working conditions of individual sex workers
over that of social order and public health. Only in New
Zealand and New South Wales (Australia)
Jurisdictions under study
• The Prostitution Reform Act (PRA) in June 2003
legalized commercial sex work in New Zealand.
• New South Wales has effectively decriminalised
prostitution since 1995. Sex work laws can be
found in the Summary Offences Act 1988, the
Restricted Premises Act 1943, and the
Environmental Planning and Assessment Act
1979.
• The Netherlands (not today)
• Germany (not today)
A normal economic activity?
• Sex-work in decriminalised or regulated system is
considered to be a “normal” economic activity.
• Standard law applies to sex-workers sometimes with
adaptions
• Is there needs to further adapt the standard provisions
to better serve the need of sex-workers?
How does the law work?
Does it work? / Does it not work?
Access to real justice?
• Utilisation of the concept of “capacity to work” – What
are the enablers / barriers to work?
Areas of Law
Enabler/barriers
Contract
Contractual capacity: age
Employment
Employers’ authority to define work
Work related injury cover
Occupational pension
Adequate and safe work conditions –
STI
Access to social insurance/security
benefits
H&S
Social welfare
Immigration status Citizen / Working visa
Tax
Ability to declare and pay tax
Employment law
• The Acts extends the shield of employment law
coverage to sex workers
NZ - Section 17 PRA: sex workers can refuse to provide commercial
sexual services, regardless of any contractual or employment
agreement. This is unique in an employment context – It allows
workers to refuse to fulfill an essential element of their job.
NSW - Sex industry workers are protected by all the laws concerning:
wages; annual holidays; long service leave; unfair dismissal and
workers compensation.
• NSW Industrial Relations laws give workers the right to take court
action to recover lost wages.
• Workers are either employees or contractors
Capacity to work - age
• Legal age of sex-worker is 18
NZ: S. 20-24 of PRA prohibit the use in prostitution of persons under 18
NSW: Child prostitution offences contained in Crime Act 1900 (Crimes
(Child Prostitution) Amendment Act 1988)
• The Acts criminalises assisting, contracting and receiving
earnings from persons under 18 in relation to commercial
sexual service.
• Underage sex worker is considered to be the victim of a
crime, not an offender. In NSW under age person is a child.
 Antonio Salvatore v R [2009] NSWCCA 104
• Client can be under-aged. Legal age of consent for sexual
activity in NZ and NSW is 16. Client can be under-aged but
under 18 cannot enter sex services premises or ‘brothels’
• The prohibitions in NZ are strict liability offences.
 R v Prendeville and Campbell DC Wellington 0855975/05, September 2005
Health and safety
• General terms of H&S apply:
The PRA aims to promote the welfare, health and
occupational safety of sex-workers. Health and Safety
in Employment Act 1992 covers sex workers
Regular workplace consultation with employees to
revise risks and hazards, to be followed by providing
and maintenance of equipment for safe workplace.
E.g. adequate rest breaks for workers, screening clients
on admission of premises, and panic buttons.
Health and Safety: Specific obligations
• NZ: S 8 Obligations of the operator of business:
Onus on employers to meet minimum
requirements to promote safer sex practices
• NSW: a lot of specific H&S obligations
E.g.: Specific lighting standard (“320 lux lighting level be used
(Australian Standards – AS/NZ 1680.2.5:1997)”) for examining
clients are STI free; Material and on-going education on safe sex
practices must be provided
• Workplace Injury Management and Workers Compensation
Act 1998 requires insurance policy taken by owners,
employers keep wages record for 7 years
• Employer’s Insurance to compensate wages when worker is
injured
Conclusions
• Gap between the law and practices
• Impact of distrust, social stigma and stereotyping
• Assumption that sex workers are regular workers
• Lack of adequate H&S and labour inspections
There is no established regime to ensure that the brothel
operators are promoting the welfare and occupational
safety of managed sex workers in NZ. Education in NSW
• Requirement of legal knowledge / education
Importance of Union. The NZPC in NZ and the Scarlett
Alliance (Australian Sex Workers Association) + Sex Workers
Outreach Program (SWOP NSW) facilitate the application of
the law on the ground by providing education, advocacy,
business advice, training etc.