Prostitution in New Zealand: The Re-Importation of Moral Majoritarianism in Regulating a Decriminalised Industry

Abstract

In 2003 New Zealand became the only country in the world to decriminalise all aspects of unforced prostitution. The law reform heralded a radical shift; rather than attempting to suppress the industry by criminalising the participants, the purpose of the Prostitution Reform Act was to ensure that the human rights of prostitutes were safeguarded. But this contentious social experiment has only served to highlight an acute clash between the ideals of public participation in decision-making and the imperative of protecting the rights of an unpopular minority. This article considers this dichotomy. By those most fusty stalwarts of local democracy, bylaws and planning controls, moral disapprobation has been allowed to continue to dominate, suppressing the rights of prostitutes. Further, owing to the discretionary elements inherent in judicial review, administrative law has failed to provide the necessary safeguards. This article responds to Emily Van der Meulen and Elya M.Durisin and serves to caution rights-focused reformists; to be truly effective, any rights-based legislation should be careful in ensuring that the possible continuing moral indignation of local communities is not, through legal processes, permitted to threaten the welfare and safety of prostitutes and risk the creation of a second-tier, clandestine industry.

Keywords: prostitution, New Zealand, decriminalization, local-authority regulation, planning law, bylaws, judicial review, Resource Management Act