Modern day slavery and human trafficking
On 28 August, two men were arrested and jointly charged with 11 counts of people trafficking by means of deception. One of the men is facing seven further trafficking charges and is jointly charged with a third man with 36 charges of providing false or misleading information to a refugee status officer.
The defendants pleaded not guilty on 4 September1 with the hearing set down for November. It is alleged that the trio had trafficked at least 18 men from India to New Zealand to exploit them in the viticulture industry and had been filing false refugee claims to do so.
The significance of the case as the first to go to prosecution in New Zealand should not be understated, but equally, we should consider whether it is merely the tip of the iceberg and New Zealand should have growing concern about human trafficking and forced labour exploitation in this country.
To do this, I will outline a number of alleged incidences of trafficking, outline current anti-trafficking laws and briefly outline the main insufficiencies in law and policy that have, to date, stopped trafficking cases from being successfully prosecuted.
Human trafficking is a method used to abduct, kidnap, transport, transfer, hold and move victims to sell or exploit in one of the many forms of modern day slavery.
These include forced labour, domestic servitude, forced prostitution, child sexual exploitation, forced marriages, sweatshop labour, organ harvesting, forced surrogacy, and other activities. The scope of human trafficking continues to grow globally, and at-risk industries in New Zealand include agriculture, fisheries, farming, hospitality, viticulture, nursing, entertainment and sex work.2
Trafficking in New Zealand?
Stories of abuse and exploitation are becoming more commonplace and high profile allegations have been made that trafficking has been taking place in New Zealand since 2004.3
These allegations include the fact that foreign men – largely from Indonesia, Cambodia, Vietnam and Thailand – are subjected to forced labour conditions aboard our foreign charter vessels in New Zealand waters. Alleged conditions include confiscation of passports, imposition of significant debts, physical violence, mental abuse, excessive hours of work and sexual abuse.4
In addition, some Asian and Pacific Island individuals migrate to work in our agriculture or viticulture industries but find themselves exploited.5 Workers have reported being charged excessive and escalating recruitment fees, unjustified salary deductions and restrictions on their movement, passport confiscation, contracts altered or being subjected to changes in working conditions without their permission. 6
In the Bay of Plenty, Indian nationals are recruited to set up “shell” companies and recruit workers from India and promise them jobs in the “shell” companies. Once they arrive in New Zealand, the workers are forced to pay a significant bond and to work as fruit pickers for a pittance, compared with what was agreed. If they don’t comply or challenge the recruiters they are threatened with deportation or beatings or both.
In Christchurch there are some recruitment and small construction companies who are exploiting Filipino labourers. One instance was where the recruitment firm recruited a number of labourers, and when still in the Philippines the workers agreed to paying an amount for a “toolbox” but the amount was not stipulated. They signed a contract before leaving the Philippines. This was the contract given to Immigration New Zealand to obtain a visa for the worker.
Upon their arrival in New Zealand, the worker’s contracts were replaced and the worker felt without the option to refuse to sign it.
The new contract set out the schedule of expenses of the toolbox and set out the figure at $7,700 per worker and included a “debt bondage” clause that stipulated if the worker left the agency before the end of their three-year term, they would be liable to pay US$10,000 to the company. The company confiscated and held the passports of the men and put them in overcrowded accommodation while charging out an unreasonable amount of $155 per week for such accommodation.7
In 2001 a Thai woman contacted Immigration New Zealand and claimed she had been trafficked and forced into prostitution.
She said she had been promised a job in a restaurant in return for payment of NZ$10,000 at 36% interest. Upon her arrival, her money, return tickets and passport was confiscated, and she was forced to live in overcrowded conditions with 14 other women.
She paid $150 per week in rent for space in a room with six other women and worked 14-hour days, seven days a week in forced prostitution. She never saw any money as it was all taken to repay her “debt”.
Within a week of coming forward, she was repatriated and no charges of any kind were brought against anyone.
Then in 2004, three girls were trafficked into Auckland by Ukrainian organised crime and one was arrested and charged with being in possession of a false Israeli passport (she had been previously trafficked to Israel).
She was acquitted due to her being a trafficking victim but no charges were laid against her traffickers.8
Around 2006, a 15-year-old was seduced by a brothel operator. He deceived her into thinking he was 20-something and in love with her and she would live with him. His intention was to exploit her in his brothel, which he did, and he was prosecuted under the Prostitution Reform Act 2003.9
However, due to a lack of recognition in law of internal trafficking, no trafficking charges were brought nor could they, even today. Recently, in June 2014, a Miami-based pimp and trafficker was convicted of sex trafficking and money laundering, and significantly, one of his victims was a New Zealander who helped to secure his conviction.10 It follows, therefore, that there may be issues of labour exploitation, slavery and trafficking.
New Zealand Legislation
The Crimes Act11 defines human trafficking as the use of coercion or deception to arrange or attempt to arrange the entry of a person into New Zealand or another State,12 whereas the Trafficking Protocol13 defines trafficking as:
“The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.
The New Zealand legislation does not currently recognise domestic or internal trafficking and does not include the purpose of the offence, exploitation.
Further, New Zealand made a commitment under the Trafficking Protocol to have adequate penalties and to strictly enforce these penalties and provide victims with a chance to be heard in a case against their offenders.
The Ministry of Justice has included an amendment to the trafficking provision under the Organised Crime and Anti-Corruption Legislation Bill, which will amend the provision to be compliant with the Protocol and recognise domestic trafficking.
But issues of providing avenues for victims to obtain access to justice must be considered and greater emphasis given to enforcement and proactive investigation of trafficking in New Zealand.
The Prostitution Reform Act 2003 provides rights and protections of adult consenting sex workers but it was not drafted with trafficking or labour exploitation in mind. As such, it has a very limited reach and cannot be used against trafficking.14
The Employment Relations framework requires that for an employee to have access to the minimum employment rights, a contract for service is required to establish an employment relationship.
In some situations, the worker may not have a direct relationship with the employer and in this situation, as affirmed byOntrack,15the Courts will apply the factual inquiry pursuant to s 6(2) of the Employment Relations Act 2000, and the Bryson16 test. Although there is the legislation relating to the definition of an employee, a considerable overlay of judge-made law may be necessary.
The difficulty with this is that in some circumstances, and particularly in reference to labour exploitation, the worker will be required to instruct a lawyer in order to obtain a finding that he or she is deemed an employee and should have access to the minimum employment rights.
The particular vulnerabilities of exploited migrants and trafficked victims mean that access to justice will, therefore, in many cases prove difficult and they will not be able to challenge the initial actions of an oppressive employer by citing that the law protects them, because it does not (at this stage).
In summary, New Zealand has significant gaps and insufficiencies in our law and a severe lack of protection for the victims of trafficking and slavery.
While the amendment to the trafficking provisions of the Crimes Act 1961 is a first step in helping to protect victims of trafficking, there is no real set of protections for victims of trafficking, slavery or serious labour exploitation in New Zealand.
Furthermore, there is a lack of proactive investigation of these offences.
If the Nelson case is a successful prosecution then it may serve as an encouragement to other victims to come forward to call for justice against those who have perpetrated gross exploitation and abuse against them.
This may, ultimately, lead to growth in prosecutions and result in victim support services being created and greater knowledge of trafficking and slavery issues in the agencies that investigate and prosecute.
Steph Lambert is the head of advocacy and capacity building at Stand Against Slavery (SAS). She was admitted in New Zealand in 2013. SAS is a New Zealand organisation dedicated to fight for the abolition of slavery and the slave trade in New Zealand and around the world. See www.standagainstslavery.com.
- TV One: “Trio plead not guilty to human trafficking charges”, <http://tvnz.co.nz/national-news/trio-plead-not-guilty-human-trafficking-charges-6071895>.
- Prevent People Trafficking Conference, July 2014.
- United States State Department Trafficking in Persons Report, 2004 – 2014.
- Christina Stringer, Glenn Simmons, and Daren Coulston, “Not in New Zealand’s Waters, Surely? Labour and Human Rights Abuses Aboard Foreign Fishing Vessels”, 2011, New Zealand Asia Institute Working Paper 11-01; Glenn Simmons, Christina Stringer, “New Zealand’s fisheries management system: Forced Labour an ignored or overlooked dimension?”, Marine Policy 50 (2014), 74-80.
- United States State Department, Trafficking in Persons Report, 2013, 279-280.
- United States State Department, Trafficking in Persons Report, 2013, 279-280.
- TV3, “Christchurch Rebuild Migrants face debts, cramped accommodation”, August 2014; Lexington Legal, Christchurch.
- Prevent People Trafficking Conference, 2009, Wellington.
- Stuff: “Hastie Guilty over Young Prostitute”, 19 August 2010, <www.stuff.co.nz/taranaki-daily-news/news/4038549/Hastie-guilty-over-young-prostitute>.
- New Zealand Herald, “Kiwi puts away global sex trafficker”, 2 July 2014, <www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=11286028>.
- Crimes Act 1961.
- s 98D(1)(a) Crimes Act 1961.
- The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (The Palermo Protocol), ratified 19 July 2002.
- Justice Acts New Zealand, “Protecting the Vulnerable”, 2014, 23.
- MacDonald v Ontrack Infrastructure Limited and Anor  NZEMPC 132 (5 October 2010).
- Bryson v Three Foot Six Limited  ERNZ 372.
Last updated on the 17th March 2016