Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Forced Labour Convention, 1930 (No. 29) - New Zealand (Ratification: 1938)
Protocol of 2014 to the Forced Labour Convention, 1930 - New Zealand (Ratification: 2019)

The Committee notes the Government’s report and the observations made by the Business New Zealand and the New Zealand Council of Trade Unions (NZCTU), which were communicated by the Government with its report, as well as the Government’s reply thereto.

Articles 1(1), 2(1) and (2)(c) of the Convention. 1. Privatization of prisons and prison labour. In its previous comments, the Committee noted the provisions under the Corrections (Contract Management of Prisons) Amendment Act 2009 relating to the establishment of monitors for each contract prison (section 199E) who are entitled to report on work undertaken by prisoners (section 199G(1) (e)) and the duty of the manager of a private prison to report, at regular intervals on, inter alia, the employment provided for prisoners by or at the prison (section 199D). It also noted the Government’s indication that New Zealand’s only contract managed prison requires every prisoner employed in prison work to provide a written consent to that employment. Noting the Government’s indication that it was planning to design and manage a new prison under a public–private partnership, to be operational in 2015, the Committee requested the Government to provide information on any measures taken or envisaged to ensure that the new privately-run correctional facilities also require the written consent of prisoners before being employed.

The Committee notes the Government’s statement that there are two privately-run correctional facilities which require compliance with all laws, including those on health and safety and international obligations. Moreover, the policies of both the facilities require the prisoner to first submit a request form to participate in employment and thereafter the prisoner will be assessed for suitability to a specific job description. However, the Committee notes the NZCTU’s statement that the prisoners in private prisons do not have any other choice than to agree to work and that the practice of submitting a request by the prisoner does not appear to be an adequate substitute for voluntary consent, given free from the menace of any penalty and under conditions of employment approximating those of free workers. Observing that the issue of voluntary written consent does not appear to be addressed in the Corrections Act, the Committee requests the Government to clarify whether the request form required to be submitted by the prisoners of private prisons for employment involves their voluntary consent, such consent being free from the menace of any penalty, including the loss of rights or privileges. It also requests the Government to provide a copy of the request form for employment of prisoners of private prisons.

2. Sentence of community work. In its previous comments, the Committee noted that under the Sentencing Act 2002, a court may sentence an offender to community work, and that such work may be undertaken at, or for, private agencies or institutions or other private entities. It also noted the Government’s indication that the performance of community work at placements with private organizations shall be voluntary, and that it would continue to ensure that convicted persons performing community work were not placed at the disposal of private agencies without their consent. In this regard, it noted the Government’s statement that the Department of Corrections obtains the consent of each individual offender being placed at an agency through a written agreement between the agency, the offender and the department. Noting that the Government has not provided any new information on this point, the Committee once again requests the Government to provide further information on the written agreement between the offender performing community work at a private agency, the agency and the Department of Correction, including copies of agreements concluded in this regard.

Articles 1(1), 2(1) and 25. Trafficking in persons. In its previous comments, the Committee noted that the Crimes Act, 1961 as amended, contains anti-trafficking provisions under section 98. It also noted the adoption of the Plan of Action to Prevent People Trafficking in July 2009 which included measures for training and awareness raising for government enforcement officers, the development of a policy for offering immigration status options to victims of trafficking, and the provision of support to victims who assist with criminal justice proceedings against their traffickers. It noted that the overall monitoring and reporting of its implementation was undertaken by the Department of Labour with assistance from the Inter-agency Working Group on People Trafficking (IWG).

The Government indicates in its report that several cases of labour exploitation of migrant workers and people smuggled or trafficked have been investigated, including migrant workers from the Philippines who assist with post-earthquake rebuild in the Canterbury region; migrant workers, both male and female, from India and China working in the horticulture and viticulture sector, and in the hospitality sector, predominantly ethnic restaurants. The Committee notes the Government’s information that the coordinated efforts by Immigration New Zealand and the Labour Inspectorate into migrant exploitation have led to the investigation and prosecution of five persons, who were convicted and sentenced with fines, community service and home detention for the exploitation of migrant Chinese chefs. Following the observations by the NZCTU concerning the low ratio of labour inspectors to the total work force, the Committee notes the Government’s indication that in the 2015 budget, the expenditure for employment relation services over the next four years has been increased which will help strengthen compliance with minimum employment standards including through increasing the number of labour inspectors.

The Committee further welcomes that the first anti-trafficking prosecution under the Crimes Act was initiated, in September 2014, involving labour exploitation of 18 people from India, which is currently before the court. The Committee finally notes that section 98D of the Crimes Act 1961, as amended in 2002, which refers only to transnational trafficking of persons was amended by the Crimes Amendment Act of 2015. This new provision criminalizes trafficking in persons within the country as well as explicitly identifies the element of trafficking for “exploitative purposes” which includes prostitution or other sexual purposes, slavery or practices similar to slavery, servitude, and forced labour or other forced services. This provision carries penalties of up to 20 years’ imprisonment and/or a fine of NZ$500,000 (US$354,700). The Committee requests the Government to provide information on the application in practice of 98D of the Crimes Act, including the number of prosecutions, convictions, and specific penalties applied, as well as copies of relevant court cases, particularly of the anti-trafficking case of September 2014 which is pending before the court. It also requests the Government to continue to provide information on the measures taken or envisaged with respect to identification and protection of victims of trafficking, particularly among migrant workers, including through the coordinated efforts of the Labour Inspectorate and the Immigration Office, and the investigations and prosecutions carried out in this regard. Finally, the Committee requests the Government to provide information on the implementation of the measures taken within the framework of the Plan of Action to Prevent People Trafficking, indicating whether the objectives set out have been achieved and whether an evaluation has been undertaken in order to assess the impact of the measures adopted.