Franks Stephen: Prostitution Reform Bill — Procedure Third Reading 
Franks Stephen: Prostitution Reform Bill — Procedure Third Reading 
[Volume:609;Page:6593] 
STEPHEN FRANKS (ACT NZ) 
: 
 This is an odd debate—a conscience vote where the allocation of debating time is along party lines. I have considered whether I should be acknowledging or trying to acknowledge the arguments on both sides. In the end one of the reasons for not doing that other than the fact that I will be touching on the same issues is that I do not believe that this debate has very often touched on the underlying law or the bill at all. This debate in all the bill’s stages in this House has tended to focus on whether people want to be seen to favour prostitution or to favour what is seen as being progressive. There has been very little analysis of what Parliament is actually doing. 
After the vote prostitution will be legal whatever the outcome. Prostitution has not been illegal in this country in living memory. Pimping has been and brothel-keeping was until 1978 when the Massage Parlours Act came in and in effect we got a form of licensed brothel industry. But prostitution—consenting acts between adults for money—and the privacy of the bedroom have not been touched by New Zealand law for many many years. Therefore the debate that goes on as if people who take a position on one side or the other are actually addressing anything other than a moral posture is in fact idle. 
I look at this as a lawyer and as a person committed to the rule of law in a liberal State. I do not ask as Nick Smith did whether this law change will make things better than they are now because I believe that the law has far less capacity to change outcomes in the direction we think it will change them than most of us here care to admit. I look at this law and instead ask whether it will be better law than what we have now and I hope that if we have better law there might be better outcomes. As I said we are not voting for or against prostitution or for or against brothels; we have them and they will remain whatever the outcome. 
There is no nirvana. I listened to the speech of my sincere Green colleague who talked about getting the State out of the bedroom and about oppression and about the balance of power shifting because the workers will have the law on their side and I say “Where?” as I did in the Justice and Electoral Committee and as I did at the second reading. There is a set of slogans in this bill that have absolutely no contact with reality and never did. There is nothing in this bill that changes the protection of the human rights of any prostitute. There is nothing that protects them from exploitation. There is nothing that will counter the natural market force. When restrictions to entry to a profession drop when the risks of a profession drop—if that is what happens—supply increases prices go down and there is usually more power in the hands of the brand owner. The only thing that will enhance the position of workers in an industry like this is their comparative performance. There will be a very large tail of people who find that their lives are harder and their money is harder to get and who wonder why people claiming to speak on their behalf were so confident of their moral position. 
This is not a political philosophical or religious statement. This is a statement of law. It is a set of instructions to the police the courts and the local authorities and what does it tell them? It tells the local authorities that they will now embark on the sort of debate that has been tearing Parliament apart over the last few months. They are not given criteria by which to decide the location of brothels; they are simply given confirmation of a power to do that. So they will be dragged into this morality debate masquerading as a debate about public health safety nuisances and offences to morals. The net effect will probably be that there are locations and cities where it is very hard to establish a brothel. The unintended effect of that will be that street prostitution is less expensive and less legally hazardous. But if there is one thing I learnt from the submissions before the select committee it is that street prostitution is more dangerous more unhealthy more undesirable from a drug abuse perspective and more susceptible to crime than brothels—as we have them—are. So this measure is likely to be an own goal. Even if I thought that the Hon. Phil Goff had been sincere when he put it forward as an answer to those who were concerned about there being no protection for communities that did not want brothels I do not believe that the Minister with all the drafting resources he had can have been unaware that this was a simple smokescreen set of regulations likely to play into the hands of those who want to make political statements at the local authority level. 
The other significant change will be the abolition of the law against pimping. When people tell me that this change in the law somehow enhances the power and the ability of the prostitute to stand up to the boss I am genuinely disgusted. If there is one factor of international experience it is that prostitution is associated with brutal men who exploit women who live off their earnings and who keep them in a form of slavery—not all of them of course; there are many who do not. But in our current industry the bad-employer elements that the Green member just mentioned are trifling compared with what they will be in an industry where the pimp is not afraid of any police action. Because that is what the change does. At the moment the brothel-keeper and the pimp are well aware that they are breaking the law. They are breaking the law more readily than the prostitute because the only liability that the prostitute faces is for hard-sell marketing. Anyone who looks at the back pages of their newspaper knows that advertising prostitution services is not illegal and it has not been illegal for a long time. 
So what do I think should have happened? We should have gone for a law that actually improved liberty and that actually did get the State or those who want to impose their views on others out of this industry. We should have been looking at the evils that the law needs to combat. We have a law that says it protects young people. Clause 3 the purpose clause in the bill talks about under-age prostitution. The Green and Labour members on my select committee rejected providing any practical means for enforcement of that. The police said they should be able to ask young prostitutes for proof of their age and the majority on the committee said no. That was the turning point for me. That was when I realised that what I was dealing with was a bid for respectability and not a genuine attempt to improve the position of the women or men in this industry. The bill says that it criminalises prostitution by those under 18. Well that was already the law. That has been in the Crimes Act for some time. The real question about it was what resource and what capacity one was putting into the hands of those who must enforce it. The proponents of this bill decided that they not only would put no capacity in the police hands but also would take away the existing powers that they have. 
Finally having become alive to the fact that this was a war of slogans I became concerned about what would flow from it. There is a part of this bill that sets up a committee that is expressly charged with developing the law. We had submissions saying that prostitution should be a ground of non-discrimination; that in other words the Human Rights Commission should prevent people from speaking against prostitution from refusing to rent their premises to prostitutes and from refusing to maintain them in their employment if that was against their conscience. What we had was a series of thinly disguised submissions—some were not disguised at all—saying it is time for the law to move on from this decriminalisation and to make prostitution a privileged position. I put forward an amendment that was designed to say that this measure was simply decriminalisation and did not impinge on people’s rights of free expression or freedom of association or non-association or freedom of religion. That was rejected. At that stage it became plain to me that true believers in our classical liberties and in the sanctions that any healthy community has could not vote for this bill. 
Sitting suspended from 6 p.m. to 7.30 p.m.