Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Articles 1(1), 2(1) and (2)(c) of the Convention. 1. Privatization of prisons and prison labour. The Committee previously noted the Government’s statement that there were two privately run correctional facilities (Mt Eden Corrections Facility and Auckland South Corrections Facility (ASCF)). The policies of both the facilities required the prisoner to first submit a request form to participate in employment and thereafter the prisoner would be assessed for suitability to a specific job description. However, the Committee noted the observations of the New Zealand Council of Trade Unions (NZCTU) that the prisoners in private prisons did not have any other choice than to agree to work, and that the practice of submitting a request by the prisoner did not appear to be an adequate substitute for voluntary consent. The Committee therefore requested the Government to clarify whether the request form required to be submitted by the prisoners of private prisons for employment involved their voluntary consent, and to provide a copy of the request form.

The Committee notes the Government’s information in its report that, currently, the ASCF is the only privately run corrections facility in the country. The Government states that prisoners at the ASCF may apply to the Prison Employment Board for employment in a specific area, and that where possible they are matched to their preferred employment. Prisoners are able to refuse any employment opportunity provided. The Committee also notes the copy of the request form attached to the Government’s report.

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 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. The Committee therefore requested 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 Corrections, including copies of agreements concluded in this regard.

The Committee notes the Government’s information that arrangements for completing community work hours at an agency are documented in two different forms. The Instruction to Report is the only document between all three parties: the Department of Corrections, the community service placement agency and the offender performing community work at the agency. By signing this document, the offenders concerned are consenting to the placement and associated work. The Community Work Agency Three Way Agreement is the formal contract between the Department of Corrections and the agency, which outlines the legislative requirements of supervision, health and safety requirements and communication agreement between the parties. The Committee also notes the copy of the Instruction to Report and the Community Work Agency Three Way Agreement attached to the Government’s report.

The Government also states that completing community work at an agency placement is an option discussed with the persons concerned and if they consent, a suitable option is attempted to be found. If a suitable placement cannot be found, or consent is not given, the persons concerned will complete their sentence directly through the Department of Corrections. They also have the right to change placements even after the placement has commenced. Ultimately, the persons concerned may also take their sentence back to the court and seek an alternative if they do not consent to any placement options for completing their sentence.

The Committee takes note of this information and requests the Government to provide additional information on the type of work involved and to give examples of authorized private entities in which community work is performed.

Articles 1(1), 2(1) and 25. Trafficking in persons. The Committee previously noted that the Crimes Act of 1961, as amended, criminalizes both cross-border and internal trafficking under section 98D. This provision also 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, and provides for penalties of up to 20 years’ imprisonment and/or a fine of 500,000 New Zealand dollars (NZD) (US$354,700). The Government indicated that several cases of labour exploitation of migrant workers and people smuggled or trafficked had been investigated. The Committee welcomed the first anti-trafficking prosecution under the Crimes Act that was initiated in September 2014, involving labour exploitation of 18 people from India. Regarding the Plan of Action to Prevent People Trafficking adopted in 2009, the Committee 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 Committee notes the Government’s information that, as regards the first anti-trafficking prosecution in 2014, the defendants were not found guilty of human trafficking, but of supplying false statements to a refugee status officer. The first conviction of human trafficking was handed down in 2016. The principal defendant was found guilty of trafficking 15 Fijian nationals and sentenced to imprisonment of nine years and six months, together with a payment of reparation of NZD28,167 (about US$18,603) to the victims. Another defendant, who employed some of the trafficked persons, was found guilty of worker exploitation and sentenced to home detention for 12 months, together with a payment of reparation of NZD55,000 (about US$36,326) to the victims. Another case is currently before the court regarding trafficking charges against a Bengali couple who are New Zealand citizens. The Committee also notes that an operational framework to support victims of human trafficking is being developed by the Immigration Office. Relevant government agencies are also revising their formal written procedures to guide officials with identifying and referring potential victims. Moreover, victims are entitled to seek legal employment while in temporary or permanent residency status. The Department of Work and Income under the Ministry of Social Development offers assistance through employment programme and services to help victims to find suitable employment. Victims are also provided with short to longer term accommodation assistance if required and options for residency if it is considered too dangerous for the person concerned to return to their country of origin. The Government also indicates a project to “refresh” the 2009 National Plan of Action, stating that a new Plan of Action will be progressed in 2018.

The Committee further notes from the 2018 concluding observations of the UN Committee on the Elimination of Discrimination against Women (CEDAW) that migrant women may be exposed to exploitation and at risk of trafficking due to the prohibition under section 19 of the Prostitution Reform Act on migrants to engage in prostitution, which prevents them from reporting abuse fearing deportation (CEDAW/C/NZL/CO/8, paragraph 27). The Committee requests the Government to continue providing information on the application in practice of section 98D of the Crimes Act, including the number of prosecutions, convictions, and specific penalties applied, as well as copies of relevant court decisions. It also requests the Government to continue providing information on the measures taken or envisaged with respect to the identification and protection of victims of trafficking, particularly among female migrant workers, as well as on the number of victims who have been identified and who have benefited from adequate protection. Finally, the Committee requests the Government to provide information on any progress made regarding the development of the new Plan of Action to Prevent People Trafficking, and to provide a copy once adopted.