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Kiwi lawyer’s exposé of inaction into murder, abuse and exploitation on the high seas

04 May 2018 - By Nick Butcher

A New Zealand lawyer has completed a PhD on transnational criminal law at Melbourne Law School that reveals the horrors of life in the South-east Asian fishing industry and the lack of political will to change it.

Thomas Harré’s focus was on how transnational criminal law relates to the human trafficking of fishermen in South-east Asia.

Thomas Harré

How it came about is an interesting tale that took him to parts of the world he wouldn’t have expected to visit as an academic.

He became interested in the subject after meeting Tauranga-based barrister Craig Tuck in 2012, around the time he was admitted as a barrister and solicitor.

Mr Tuck is the founder and director of Slave Free Seas, a charitable trust that aims to use the law to end human trafficking at sea. Its lawyers represented Indonesian fishermen with little or no grasp of English during a major investigation into allegations of exploitation and unfair treatment, including poor pay and work conditions on charter vessels fishing in New Zealand waters.

In 2016 a change in law required all foreign charter fishing vessels to reflag to New Zealand and operate under the full legal jurisdiction of this country. Previously they did not, yet the crew aboard these fishing vessels were catching fish for prominent New Zealand fishing companies.

Thomas Harré’s Masters degree examined the response of the New Zealand Government to the trafficking of the Indonesian fishermen.

Mr Harré is a barrister at LawAid International Chambers, which was founded by Craig Tuck and is also based in Tauranga.

“Getting to know Craig and doing my Masters led me to the conclusion that exploitation of vulnerable workers such as the Indonesian fishermen was not just happening in New Zealand waters. That leant itself nicely to a PhD on the wider problem,” he says.

Tricked into slavery

An investigation keeps on evolving and that’s what happened for Thomas Harré.

The case study he looked at involved poor fishermen, mostly Cambodian, who he says were essentially tricked into working on Thai fishing boats which turned out to be fishing in Indonesian waters.

“So you’ve got this multi jurisdiction complex issue where the companies doing this are exploiting the inability of these countries to communicate with each other properly and therefore the companies are getting away with this style of human trafficking,” he says.

How they are tricked into trafficking is a shocking indictment of the way the system operates.

“How the scam works is that one of these Cambodian fishermen will be told by what could be described as a loose acquaintance that there are fishing jobs available in Thailand and your family and village will be set for life and all you have to do is work on the boat. It’ll be tough work but only for a few months, but the money will be worth the sacrifice.”

To a person of little education from an impoverished village, this sounds like a dream come true.

But in reality it is more like the beginning of a long nightmare.

“The companies will send a representative who will bring these Cambodian men to Thailand, often illegally; that is, they’ll be crossing the border without the appropriate paper work and visas. They’ll board a fishing boat at one of the Thai ports and soon realise the job offer was too good to be true,” he says.

Squalid conditions and witnessing murder

Mr Harré says the men will be faced with squalid living conditions and being abused by the ship’s captain.

“This is significantly worse than what we saw with the foreign charter vessels that were operating in New Zealand. Some of these boats are very small – just 10 metres long – and there could be 20 people living aboard the boat. The United Nations produced a study where they found that 50% of crew members aboard these sorts of fishing boats had witnessed another crew member being murdered by a fellow crew member. The working conditions are horrific,” he says.

These stories are included in some of the findings presented in Mr Harré’s PhD.

“Another study shows that these Cambodian fishermen will stay at sea, on average, for about two years without setting foot ashore when they had only signed up for a couple of months,” he says.

Mr Harré’s main focus, however, is how the governments of Cambodia, Thailand and Indonesia were failing to communicate with one another about what to do about the problem.

Talk is cheap

“I spent a lot of time in South-east Asia, being based in Bangkok for about six months, interviewing everyone and anyone who was involved with regulating the fishing industry,” he says.

What he found was that there was a lot of talk and that talk turned out to be cheap.

“As far as putting it into practice, there was a severe lack of political will to establish any regulations.”

Mr Harré concluded that the fishing industry is an economic powerhouse, countries in South-east Asia make a lot of money from it and it’s easier to look the other way, rather than change practices that would reduce profits despite the working conditions being violations of basic human rights.

“It’s how they stay competitive,” he says. “They’re not catching high quality fish. It’s the species they grind up and feed to shrimp or chickens or turn into bait. They’re not setting the price, they’re taking whatever price the global market will pay, so the fishing companies who want to maintain a profit cut costs with labour.”

The complicated puzzle of transnational criminal law

The point of Mr Harré’s PhD was to explore how transnational criminal law works in practice.

“It’s not international criminal law where they’re sometimes dealing with genocide and war crimes. But this is still crossborder crime, just not as high profile,” he says.

What happens is the United Nations will introduce and pass an anti-trafficking of people treaty such as the Palermo Protocol, and all countries that sign up will agree to criminalise this behaviour in their respective countries.

“But what that means is there is no international tribunal that can deal with human trafficking and each country needs to take any cases to their domestic courts. But fundamentally you’ve got bits of evidence cropping up in multiple jurisdictions.”

Mr Harré says that leads to the bigger challenge of being able to combine the whole factual matrix of the offending, that is human trafficking, and packaging it up in a way that will work in a prosecution held at a domestic court.

His PhD is a legal analysis on how to make this work, not just in South-east Asia but anywhere.

“It sets out the obligations of states. So a lawyer can refer to my PhD and ask themselves whether the states involved in a potential case are meeting this threshold,” he says.

What next?

Mr Harré intends to practise law in these specialist areas along with putting some further academic research into the career mix.

“I want to work in several jurisdictions. Something I’m working on with my employer, Craig Tuck, is providing access to justice for people who have been tricked into smuggling drugs,” he says.

Mr Harré was part of the legal team representing New Zealander Antony de Malmanche who is serving a 15-year sentence in a notorious Bali prison for drug trafficking. His legal team argued that Mr de Malmanche was a victim of human trafficking rather than being a drug trafficker.

While different to fishing, Mr Harré says it was a similar situation, in that it was criminal activity crossing borders.

“The transnational criminal law approach that we took told a much bigger story. We found evidence of very sophisticated and organised criminal activity across multiple countries and that the prosecution was only seeing the tip of it when it hit Bali,” he says.

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Last updated on the 4th May 2018