Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the Government’s reports and the comments made by the New Zealand Council of Trade Unions (NZCTU) dated 2 October 2011 and 11 October 2012, as well as the Government’s reply thereto.

Articles 1(1), 2(1) and (2)(c) of the Convention. 1. Privatization of prisons and prison labour. The Committee previously noted the introduction of the Corrections (Contract Management of Prisons) Amendment Bill which would allow private companies to manage prisons, including prisons currently under operation as well as new prisons. The Government stated that the Bill contained provisions to prevent prison labour in contract-managed prisons from being used to benefit private sector commercial operations. The Committee requested the Government to take measures to ensure that the new system of privately managed prisons would only allow work by prisoners with the prisoner’s voluntary consent, given free from the menace of any penalty, and under conditions of employment approximating those of free workers.

The Committee notes the Government’s indication that the Corrections (Contract Management of Prisons) Amendment Act was adopted in November 2009, which allows competitive tendering of prison management on a case by case basis. The Government refers to section 199(2) of the Corrections Act (as amended), which states that it is a legal requirement under the Act that companies comply with all relevant New Zealand legislation, including the Corrections Act 2004 and the New Zealand Bill of Rights Act 1990, as well as with relevant international obligations and standards, including the Convention. The Government further indicates that, as with state-run prisons, privately managed prisons are subject to scrutiny by the inspectors of corrections and the Office of the Ombusdmen. The Committee also notes that the Corrections (Contract Management of Prisons) Amendment Act establishes the role of Prison Monitor (pursuant to section 199E) assigned to each privately managed prison. Prison Monitors have access to all prisoners and all parts of the prison at all times. Section 199G(1)(e) states that Prison Monitors must specifically report on work undertaken by prisoners at the direction of the prison manager. The Committee further notes the Government’s statement that privately managed prisons are subject to extensive reporting requirements. Section 199D of the Corrections Act (as amended) states that the manager of a private prison must report at regular intervals on, inter alia, the employment provided for prisoners by or at the prison. In addition, the Committee notes the Government’s statement that privately managed prisons are required to have prisoner employment programmes, approved by the Chief Executive of the Department of Corrections.

The Committee takes due note of the Government’s indication that New Zealand’s only contract managed prison is required to ensure that any prisoner employed in prison work has provided written consent to that employment, and that such consent has not subsequently been withdrawn. The Committee also notes the NZCTU’s statement that additional corrections facilities are currently being built which will also be managed privately. In this connection, the Committee notes the Government’s indication that it plans to design and manage a new prison under a Public-Private Partnership, to be operational in 2015. The Committee notes that this prospective contract will require compliance with the Convention so that any prisoner employed in prison work will have provided written consent for that employment.

The Committee therefore observes that the practice of requiring the written consent of prisoners engaged in work in the one privately-run prison in the country is in conformity with the Convention, and that the one privately-run prison under development will likewise require this. Noting that the issue of written consent does not appear to be addressed in the provisions of the Corrections (Contract Management of Prisons) Amendment Act, the Committee requests the Government to provide information on any measures taken or envisaged to ensure that any additional privately-run correctional facilities will also require the written consent of prisoners, in line with the current practice. The Committee also requests the Government to provide information on the conditions of work performed in private prisons and the manner in which it is ensured that prisoners are informed of these conditions. Please also provide extracts of the reports of the managers of private prisons (pursuant to section 199D of the Corrections Act (as amended)) concerning the employment of prisoners, as well as examples of the written consent forms of prisoners in private prisons employed in prison work.

2. Private use of labour in state prisons. The Committee previously noted that Corrections Inmate Employment (CIE), a group within the Department of Corrections, manages prisoner work programmes in all prisons, and aimed to provide prisoners who volunteer general work skills and practical trade skills, including through contracts with private businesses at market rates. The Government indicated that, with the exception of the Release to Work programme, the provision of prisoner work opportunities by the department did not constitute a formal employment relationship. The Committee requested information on the implementation of the new prisoner employment strategy, particularly on the granting of conditions approximating free employment to prisoners who work for the department’s private sector partners under that strategy.

The Committee notes the statement of the NZCTU that prison employment programmes provide a valuable opportunity for inmates to develop work skills and to enhance their employment prospects following release.

The Committee notes the Government’s statement that the current Prisoners Skills and Employment Strategy covers the period 2009–12. The Government indicates that the overall growth in prisoner employment and skills acquisition has continued, with the percentage of the prison population that is employed rising from 50.8 per cent in 2009 (4,065 prisoners) to 63.4 per cent in 2012 (4,825 prisoners). In 2012, this included 2,562 prisoners working in prison industries, 114 prisoners in the Release to Work programme, 103 prisoners in trade and technical training and 2,046 prisoners in prison based work. The Committee further notes the Government’s statement that the main prisoner employment activities and prison industries run by the CIE have not changed during the period covered by the report, though there has been an increasing focus on the completion of trade-related qualifications by prisoners. The Government states that prisoners engaged with CIE achieved a total of 2,798 nationally-recognized qualifications in 2010–11 and that these qualifications will support prisoners in gaining sustainable employment on release from prison The CIE continues to contract with private businesses at market rates, and the prisoners remain in the CIE work programme under the supervision and management of the Department of Corrections. Regarding the Release to Work programme, the Government indicates that suitable prisoners who are nearing the end of their sentence are allowed to leave prison on day release, and work for a suitable employer in a conventional employment relationship. Prisoners are paid market wages (no lower than the legal minimum wage) which are paid into a prisoners’ trust account, with deductions for board not exceeding 30 per cent of earnings. Approximately half of the participating prisoners retained their Release to Work jobs after their release.

3. 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. The Committee also noted that the penalty of community work may be imposed without the consent of the offender; Volume 3 of the Community Probation Service (CPS) Operations Manual states that “[c]ommunity work is a compulsory sentence, i.e. it is imposed without the offender’s consent”. In this regard, the Government indicated that it considered the performance of community work at placements with private organizations to be voluntary, and that it would continue to ensure that convicted persons performing community work were not placed at the disposal of private agencies without their consent.

The Committee notes the Government’s statement 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 requests the Government to provide further information in its next report on the written agreement between the offender performing community work at a private agency, the agency and the Department of Correction, including copies of agreements concluded in this regard.

Articles 1(1), 2(1) and 25. Trafficking in persons. The Committee previously noted that the Crimes Act, 1961, had been amended to include anti-trafficking provisions (section 98), and that trafficking in persons carries penalties of up to 20 years’ imprisonment. The Committee also noted the adoption of the Plan of Action to Prevent People Trafficking in July of 2009, which included measures for training and awareness raising for government enforcement officers, the development of a policy for offering immigration status options to victims of trafficking, and the provision of support to victims who assist with criminal justice proceedings against their traffickers. The Committee requested information on the implementation of the Plan of Action and the application of the relevant provisions of the Crimes Act.

The Committee notes the statement by the NZCTU that no independent research has been conducted to determine the full extent of any trafficking problem in the country and that at present, there is little evidence of major trafficking in the country. The NZCTU indicates that there are examples of foreign visitors working illegally, including work in horticulture and the sex industry. Those found working illegally will be deported by Immigration New Zealand, so there is little incentive for illegal workers to report exploitative employers. In this regard, the NZCTU indicates that the Plan of Action to Prevent People Trafficking does not address in any depth the issue of non-cooperation with authorities for fear of deportation.

The Committee notes the Government’s statement in its report submitted under the Abolition of Forced Labour Convention, 1957 (No. 105), that it is conscious that New Zealand remains at risk of becoming a destination country for victims of trafficking, and that the Plan of Action was developed in anticipation. The Government states that the Plan of Action mainstreams human trafficking prevention and assistance into existing Government initiatives and programmes, and that the overall monitoring and reporting of its implementation will be undertaken by the Department of Labour with assistance from the Inter-agency Working Group on People Trafficking. The Government further indicates that in 2010, the Department of Labour launched a campaign to raise public awareness on human trafficking by distributing brochures in six languages outlining possible signs of human trafficking. The Committee requests the Government to pursue its efforts to prevent and combat trafficking in persons, and to provide information on measures taken in this regard within the framework of the Plan of Action to Prevent People Trafficking. The Committee also requests the Government to provide information, in its next report, concerning the application in practice of the anti-trafficking provisions of the Crimes Act, including the number of prosecutions, convictions, and specific penalties applied, as well as copies of relevant court cases.