Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

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

1. The Committee has noted the information provided by the Government in its last report in reply to its earlier comments. It has also noted the comments made by the New Zealand Council of Trade Unions (NZCTU) and by Business New Zealand on the application of the Convention, which were communicated by the Government with its report.

2. Sentence of community work. In its previous comments, the Committee noted that, under the Sentencing Act 2002, which came into force on 30 June 2002, a sentence of community work may be imposed by the court if the offender is convicted of an offence punishable by imprisonment; or if the prisoner is convicted of an offence and the enactment expressly provides that a community-based sentence may be imposed on conviction. Under section 63 of the Act, an offender sentenced to community work may be required to perform work: (a) at or for any hospital, church, charitable, educational, cultural or recreational institution or organization (including a marae); (b) at or for any institution or organization for the old, infirm or disabled persons at, or for, any home of an old, infirm or disabled person; or (c) on any land of which the Crown, or any public body, is the owner, lessee or occupier, or on any land that is administered by the Crown or any public body. The Committee notes that in its last report, for the period 1 July 2003 to 1 May 2005, the Government indicated that, on occasion, community work may be undertaken by sentenced offenders at or for privately-owned institutions. The Committee also notes from the guidelines that in Volume 3 (“Community Work”) of the Community Probation Service (CPS) Operations Manual, the statement manifesting a policy that contemplates community work placements with private entities, albeit with conditions: “If the location is a home or institution that is privately owned (fully or partly), the benefit of the work must be for the people using and working in the institution. It must not be for the benefit of the institution itself”.

3. The Committee notes from the section on community-based sentences in the Annual Report 2006 of the Department of Corrections (DOC), the indication that during 2005-06 the Department managed approximately 65,000 sentences and orders in the community, and that of this total by far the biggest portion was around 45,000 community work sentences. The report states that these sentences and orders led to over 2 million hours of free labour being provided by offenders to communities, and that during the year 41,420 new sentences and orders were commenced. The Committee would be grateful for information indicating the number of these community-work placements that involved work performed at or for private agencies or institutions or other private entities, and for information that identifies such private sponsors, including, for example, a list of authorized private institutions or other entities. Recalling that, under the exception in Article 2(2)(c) of the Convention, forced or compulsory labour is not deemed to include work or service exacted from any person as a consequence of a conviction in a court of law, provided that said person is not hired to or placed at the disposal of private individuals, companies or associations, the Committee has considered that, where offenders perform work imposed under community-based sentencing policies, assurances are needed that any sponsoring private institutions or entities are non-profit-making, and that any work performed by sentenced offenders under such private sponsorship is of a real benefit to the community. The Committee asks the Government to supply information regarding measures taken to ensure that such is the case under its community work programme.

4. Consent of the sentenced offender to doing community work. The Committee notes that under section 55 (“Sentence of community work”) of the Sentencing Act 2002, a court may sentence an offender to community work: (a) if the offender is convicted of an offence punishable by imprisonment; or (b) if the offender is convicted of an offence and the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction. Section 74 provides, among other things, that: (1) if a court imposes a community-based sentence on an offender, the particulars of the sentence must be drawn up in the form of an order; that: (2) wherever practicable, a copy of the order must be given to the offender before he or she leaves the court; and that: (3) if it is not practicable to give a copy of the order to the offender before the offender leaves the court, a copy must be given to the offender in person as soon as practicable after the offender leaves the court. The Committee notes that, according to the guidelines in Volume 3 (“Community Work”) of the CPS Operations Manual of the Department of Corrections, actions that apply to court-ordered sentences of community work include the following: the offender signs the Court order as acknowledgment that: he or she has received the Court order; and that he or she understands the requirements of the Court order, particularly the requirement to report as soon as possible and no later than 72 hours. The Committee, in particular, also notes from Volume 3 of the CPS Operations Manual the guideline explaining that: “Community work is a compulsory sentence, i.e., it is imposed without the offender’s consent” (emphasis added). The Committee notes the report posted on the Internet site of the Ministry of Justice, “Conviction and Sentencing of Offenders in New Zealand: 1995 to 2004”, which states that offenders sentenced to community work “must report to a probation officer who will determine the appropriate placement of the offender, i.e. at a community work centre, with another agency, or a combination of both of these”. The Committee has considered that, where a sentence of community-based work entails a work placement at a private institution or entity, assurances are needed that the sentenced person consents to doing the community work. The Committee would therefore be grateful for explanatory comments from the Government regarding the foregoing provisions and documentation in light of the need for such consent by the sentenced offender, as well as for information regarding the measures taken in law and practice to ensure that the consent of sentenced offenders to perform work for private sponsors is guaranteed.

5. Prison labour in privatized prisons. In its previous comments, the Committee noted with interest the statement by the Government in its report that the Auckland Central Remand Prison (ACRP), which had been administered by Australasian Correction Management, a private concern, was to revert back to government control by July 2005. The Committee notes with interest the information from the Internet site of the Department of Corrections that management of the ACRP reverted to the Public Prisons Service (PPS) on 12 July 2005. The Committee also notes with interest section 198 (“No new management contracts may be entered into …”) of the Corrections Act 2004, which came into force on 1 June 2005, and repealed and replaced the Penal Institutions Act 1954, which provides: “No person may, on behalf of the Crown, enter into any contract with any person for the management, by that person instead of the Crown, of any prison”.

6. Private use of labour in state prisons. In its previous comments, the Committee asked the Government to indicate whether, consistent with the policy of the Department of Corrections, to end its participation in any contractual arrangements involving private sector management as part of the contract, the Department’s Inmate Employment Policy (which refers, among other categories of employment, to commercial industries run with the involvement of the private sector) would also be revised accordingly and, if so, to supply a copy of a revised text. The Government, in its last report, indicated that it intended to revise the Department’s Inmate Employment Policy with regard to participation of the Department in contractual arrangements with private sector interests, and that a copy of the final policy would be provided with the Government’s next report. The Committee notes from the Internet site of the DOC the Department’s “Prisoner Employment Strategy 2006-09”, released in May 2006. The strategy report, under its “priority areas”, states as its goals, among others, to “establish interfaces with industry to explore employment opportunities for prisoners, which are of mutual benefit to both parties”, and to “develop a partnership approach with industry … to ensure that training meets labour skill demand and that qualifications obtained by prisoners are relevant to the labour market”. The Committee seeks clarification about whether the Prisoner Employment Strategy 2006-09 represents the “revised” and “final policy” on inmate employment previously referred to by the Government.

7. Freely given consent of a prisoner as a condition for a private use of prison labour. In its previous comments, the Committee noted with interest the statement by the Government in its report that participation in prisoner employment, excepting self-sufficiency roles, was voluntary. It noted the indication that Corrections Inmate Employment was developing a prisoner “induction package” for all prisoners undertaking employment, which would include, inter alia, a signed consent document to acknowledge the voluntary acceptance of participation in employment, and it asked the Government to supply a copy. The Committee noted the indications of the Government that there was no single induction package covering all prisoner employment, and that the Government had enclosed a copy of the induction package for prisoners participating in the horticulture industry, which illustrated the overall form of the packages and included a checklist that incorporated, in item (1), the prisoner’s written consent that employment was an agreed part of his or her sentence plan. The Committee notes that the copy of the document referred to was not included with the Government’s report, and it asks the Government to supply a copy with its next report.

8. The Committee notes the indication by the Government in its last report that sentence plans, or sentence “management” plans as they are referred to in the Corrections Act 2004, are prepared with and for prisoners to achieve an optimal match of available programmes, employment, and constructive activities for each prisoner, and to sequence programmes, work, and activities effectively. Each plan is discussed with the prisoner and agreed to in writing with him or her. The Committee asks the Government to provide a copy of a typical sentence management plan.

9. Trafficking in persons for exploitation. In its previous comments the Committee requested the Government to refer to the reports of alleged bonded labour involving migrant workers in the commercial sex industry noted in the communication from the ICFTU of 6 May 2003, and to provide information on any legal proceedings which had been instituted as a consequence of the application of the Crimes Act 1961, as amended on 18 June 2002 by the Crimes Amendment Act 2002 and on the penalties imposed, as required in the report form under Article 25 of the Convention. The Committee notes the Government’s indication in its last report that there had not been any cases determined under section 98D (the trafficking offence provision) of the Act; and that there had been six prosecutions resulting in three convictions under section 98C (the migrant smuggling offence provision). The Government indicates that the most prominent case was R v Chechelnitski (CA 160/04, 1 September 2004), in which the Court of Appeal upheld a sentence of three and a half years’ imprisonment imposed under section 98C, on a person who was found to have accompanied three illegal immigrants into the country who were not subject to coercion and were trying to enter of their own accord.

10. The Committee notes the Government’s indication that the Prostitution Reform Act 2003, which entered into force on 28 June 2003, creates an offence of “inducing or compelling persons to provide commercial sexual services or earnings from prostitution” (section 16), and that this provision, more than the previous law, specifically targets situations where a person is induced or compelled to engage in commercial sexual activity. The Government indicates that the new section 98AA of the Crimes Act 1961, inserted by the Crimes Amendment Act (No. 2) 2005, is also of similar effect in relation to persons under 18 years of age. The Government also refers to section 19 of the Prostitution Reform Act, which prohibits permits being granted under the Immigration Act 1987 to a person who provides commercial sexual services or who operates or invests in a business of prostitution. The Government indicates that this provision is intended to prevent persons from being brought into New Zealand for the purposes of employment in the sex industry and from entrepreneurs coming to New Zealand to operate or invest in a business of prostitution. The Committee notes that copies of this legislation, despite the reference to their inclusion as annexes to the Government’s report, were not received, and the Government is asked to supply them with its next report. The Committee would also appreciate statistical data and other information from the Government regarding the application and enforcement of these new provisions, including information about any arrests, prosecutions, convictions, and sentence dispositions, as well as any permit denials, resulting from the implementation of these reforms.

11. The Committee notes from a May 2006 report on the Internet site of the Ministry of Justice, the indication that the Department of Labour, in conjunction with the New Zealand Police, Department of Prime Minister and Cabinet, Ministry of Foreign Affairs and Trade, and the New Zealand Customs Service, had agreed to formulate a National Plan of Action to Combat Trafficking in Persons; that development of a national plan would address prevention, protection, prosecution and reintegration; that such a plan would help New Zealand to meet its international obligations and will guide domestic responses to trafficking; and that a multi-agency working group, with the involvement of non-government agencies, had drafted a discussion document outlining possible approaches for the development of the National Plan. The Committee hopes that the Government will report on the status of this initiative in its next report.

12. Forced child labour. The Committee notes the Government’s indication that section 6 of the Crimes Amendment Act (No. 2) 2005, which inserts new section 98AA into the Crimes Act 1961 and which had yet to come into force, makes it an offence, punishable by a maximum of 14 years’ imprisonment, to enter into a dealing involving a person under the age of 18 for the purposes of sexual exploitation or engagement in forced labour. The Committee also notes from the Internet site of the Ministry of Justice the May 2006 report, “A five-year stocktake of the steps taken by the New Zealand Government and civil society to prevent the commercial sexual exploitation of children”. With reference to forced or compulsory child labour, the Committee notes that the Government has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182). In so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour”, the Committee is of the view that the problem of forced or compulsory labour of children may be examined more specifically under Convention No. 182. The protection of children is enhanced by the fact that Convention No. 182 requires States which ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly asks the Government to henceforth refer to its comments on the application of Convention No. 182.