In light of the recent cases of human trafficking being heard in New Zealand courts, it is almost inevitable that the question will be raised: is New Zealand doing enough to combat human trafficking?
One of the recent trends globally is to discuss human trafficking in terms of “modern slavery”. In 2015, the United Kingdom passed a Modern Slavery Act. Last year, Australia asked its Parliament to consider whether or not it should also adopt one.
Does New Zealand also need one of these Acts? I’m not sure that we do.
Modern slavery is a concept with very strong connotations – there is no doubt that it must involve extreme human rights abuses. However, the term is used so widely – from references to simple prostitution to the most shocking examples of the sale of human beings – as to render it essentially meaningless. Strictly speaking, the concept has no legal meaning. Even the UK’s 2015 Modern Slavery Act doesn’t define what that term actually means.
On the other hand, “human trafficking” is a tightly defined legal concept. Around the world, countries have created the offence of human trafficking in essentially the same terms, in order that there will be no safe haven for human traffickers – wherever they are, they can be prosecuted.
Creating a Modern Slavery Act here in New Zealand would only serve to perpetuate a simplistic understanding of a complex problem. My concern is that when such vague language is turned into law, it may become difficult – if not impossible – for the legislation to be enforced fairly.
New Zealand is regularly praised for its legislative provisions relating to human trafficking. The recently-released annual Trafficking in Persons Report, produced by the US State Department ranks New Zealand on its highest Tier – and has done every year since the Report began in 2001. This means that (according to the USA, at least), New Zealand “fully meets” the standard of anti-trafficking activities. I’ve recently said the same thing.
My view is that New Zealand’s legal framework is entirely adequate for responding to human trafficking – on paper at least.
The Ministry of Foreign Affairs is regularly engaged with anti-trafficking efforts both regionally in the Asia-Pacific (such as through the Bali Process and the Pacific Immigration Directors’ Conference) and in the international sphere (such as with the United Nations Office on Drugs and Crime). Our Immigration department conducts training with its staff to recognise both victims of trafficking and human traffickers. Our Police have a procedure for protecting officially-recognised victims of trafficking. Our Labour inspectors are trained to look for signs of trafficking among migrant workers, and our Fisheries observers are able to report signs of mistreatment of crew members working on board fishing vessels.
The New Zealand Crimes Act provides that a convicted trafficker can be sentenced up to 20 years in prison and/or fined up to $500,000. These are very serious sentences, which make human trafficking one of the most grave criminal offences in New Zealand law.
However, the legal framework is woefully underused:
New Zealand’s National Plan of Action on Human Trafficking – released in 2009, is out of date and gathering dust.
The “Inter-agency Working Group on People Trafficking” – set up by the government in 2006 to implement anti-trafficking initiatives – appears to have never met.
The criminal offence of human trafficking – created in 2002 – has been used only a small handful of times.
In response to the first ever prosecution of human trafficking in New Zealand, the US State Department in its 2017 Trafficking Report said: New Zealand has “demonstrated serious and sustained efforts by convicting a trafficker under its human trafficking statute for the first time”.
To my mind, calling a single prosecution of human trafficking in New Zealand a serious and sustained effort would seem to be a very kind reading of the situation – especially in light of the leading work that Stringer and others have done in exposing this kind of exploitation in New Zealand.
When New Zealand signed up to the United Nations Protocol on Human Trafficking in 2002, we agreed to take all reasonable steps to criminalise human trafficking, and work effectively with other countries to ensure that human traffickers exploiting people in New Zealand’s territory would not escape prosecution. To date, it seems that the New Zealand government has work to do on this front.
New Zealand may not need a Modern Slavery Act, but it needs to get its act together in properly responding to human trafficking. A good start would be using the laws it already has.
Barrister, LawAid International