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The Committee notes the information provided by the Government in reply to its earlier comments. It also notes the comments made by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand on the application of the Convention, which were communicated by the Government with its report, as well as the Government’s responses to these comments.

Articles 1 (paragraph 1), and 2 (paragraphs 1 and 2(c)), of the Convention. 1. Privatization of prisons and prison labour. The Committee notes the indications of the Government in its report that the Corrections (Contract Management of Prisons) Amendment Bill 2009 has been introduced to allow private prisons; that under this legislation, private companies will have the opportunity to tender on a competitive basis to manage prisons; and that this law change will apply to prisons already in operation as well as new prisons. The Committee notes that in its response to the NZCTU comments, the Government indicates that the Bill contains provisions to prevent prison labour in contract-managed prisons from being used to benefit private sector commercial operations. It refers in this regard to a contractual requirement for companies managing prisons to comply with the relevant legislation, stating that this will ensure that prisoners in privately managed prisons will only be employed as they would in a public prison. The Government further indicates that standards and requirements placed on contract-managed prisons will be strictly enforced. It refers in this connection to provisions for the assignment of a prison monitor to each contract-managed prison to monitor contractual compliance, to privately managed prisons being subject to extensive reporting requirements and scrutiny by corrections inspectors, and to the fact the Chief Executive of Corrections will remain responsible for all prisoners. The Committee notes that section 66 of the Corrections Act 2004 provides, inter alia, that prisoners in any prison may be directed by the prison manager to perform work maintaining the prison.

The Committee refers in this regard to paragraph 106 of its 2007 General Survey on the eradication of forced labour, in which it explained that the prohibition on convicted prisoners being hired to or placed at the disposal of private parties is not limited to work outside penitentiary establishments but applies equally to workshops which may be operated by private undertakings inside prisons, as well as to work organized by privately run prisons.

The Committee asks the Government to take the necessary measures to ensure that both in law and in practice any new system of privately managed prisons will not involve the exaction of forced or compulsory labour from any prisoner, including any work or services directed by prison managers, except with the prisoner’s voluntary consent, given free from the menace of any penalty, and under conditions of employment approximating those of free workers (see paragraphs 59–60 and 114–120 of the 2007 General Survey referred to above). The Committee asks the Government to provide, in its next report, information on the measures taken or envisaged in this regard, as well as a copy of the Corrections (Contract Management of Prisons) Amendment Bill 2009, once it has been finally adopted and enacted into law.

2. Private use of labour in state prisons. The Committee notes the detailed information supplied by the Government in its report concerning its policy on prisoner employment under the Prisoner Employment Strategy. Corrections Inmate Employment (CIE), a group within the Department of Corrections, manages prisoner work programmes in all prisons, aiming to provide prisoners who volunteer general work skills and practical trade skills. As one component of this activity, CIE contracts with private business at market rates, and prisoners remain in the CIE work programme under the supervision and management of the Department of Corrections. The Government states that, with the exception of the Release to Work programme, the provision of prisoner work opportunities by the Department does not constitute a formal employment relationship. The Government reiterates, however, that the incentive pay framework has been the subject of an ongoing review, and that it will provide information about this in its next report. The Committee notes from the Internet site of the Department of Corrections, the Prisoner Skills and Employment Strategy 2009–12, defined as “a strategy to raise prisoner skill levels and provide prisoners with employment experience”. To achieve this, the Department will, inter alia, increase employment opportunities, in part, by “increasing partnerships with the private sector”. The strategy document refers to examples of current partnerships, which include renovation work for Housing New Zealand Corporation, photocopier assembly and repair work for Canon and light engineering work for a number of clients in the South Island. It indicates that the Department regularly engages with private companies about opportunities for more meaningful work and training for prisoners, and that under the new strategy it “will be looking to increase the number of contracts with private companies”.

The Committee recalls that, for the private employment of prison labour to comply with the Convention, it must be voluntary and depend on the formal consent of the prisoner concerned. However, the requirement of such consent is not in itself sufficient to eliminate the possibility that it is given under the menace of loss of a right or advantage. The Committee has considered that conditions approximating a free labour relationship are the most reliable indicator of the voluntariness of prison labour (2007 General Survey, paragraph 60). The Committee requests the Government to provide in its next report information indicating whether, in what ways and to what extent the new prisoner employment strategy is being conceived and implemented in such a way as to grant conditions approximating free employment to prisoners who work for the Department’s private sector partners under that strategy.

3. Sentence of community work. In its previous comments the Committee has 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 has also noted that the penalty of community work may be imposed without the consent of the offender, referring to Volume 3 of the Community Probation Service (CPS) Operations Manual, which stipulates: “Community work is a compulsory sentence, i.e., it is imposed without the offender’s consent”.

The Committee notes the indications of the Government in its report that it considers the performance of community work at placements with private organizations to be voluntary, and that it would nevertheless continue to ensure that convicted persons performing community work are not placed at the disposal of private agencies without their consent. While taking due note of this indication, the Committee reiterates its hope that measures will be taken to ensure that, both in law and in practice, convicted persons performing community work are not hired to, or placed at the disposal of, private agencies without their consent, and that the Government will provide, in its next report, information on the progress achieved in this regard.

Articles 1 (paragraph 1), 2 (paragraph 1), and 25. Trafficking in persons. The Committee notes with interest the information supplied by the Government concerning the measures being actively taken in relation to the problem of trafficking in persons, and in particular its Plan of Action to Prevent People Trafficking, which was approved by the Government in July of 2009. The Plan of Action’s key items include training and awareness raising for government enforcement officers and targeted non-governmental organizations, development of a policy for offering immigration status options to victims of trafficking, and providing support to victims who assist with criminal justice proceedings against their traffickers. The Committee notes the Government’s stated commitment to a comprehensive strategy, pursuant to which an Inter-Agency Working Group will oversee and ensure the implementation of the Plan of Action. The Committee has also noted that the Crimes Act, 1961 was amended in 2002 to include anti-trafficking provisions (section 98), and that trafficking in persons carries penalties of up to 20 years’ imprisonment. Noting also that New Zealand has not had any confirmed cases of trafficking in persons, the Committee hopes that the Government will provide, in its next report, information on the application in practice of the Plan of Action, as well as the relevant provisions of the Crimes Act, as amended, including information on legal proceedings in any cases brought against trafficking offenders and on the penalties imposed, if and when such information becomes available.

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

Article 2(2)(c) of the Convention. 1. Private use of labour in state prisons. The Committee has noted comprehensive information supplied by the Government concerning various measures taken to increase the employment opportunities for prisoners with a view of their rehabilitation. It has noted, in particular, the Prisoner Employment Strategy 2006–09, as well as other relevant documents, such as copies of sentence management plans, communicated by the Government with its report. The Committee also notes the Government’s detailed explanations concerning a requirement for prisoners to provide their written consent to perform labour, including examples of “induction packages” for prisoners undertaking employment, which include a checklist that incorporates the prisoners’ written consent that employment is an agreed part of their sentence plan.

Noting also the Government’s statement that, as a result of the introduction of the new Prisoner Employment Strategy, the existing Inmate Employment Policy will be replaced with the Prisoner Employment Policy which is currently in development, the Committee hopes that the Government will supply a copy of the new policy, as soon as it is finalized.

2. Sentence of community work. The Committee previously noted that, following a sentence of community work imposed under the Sentencing Act, 2002, offenders may perform labour at, or for, private agencies or institutions or other private entities. The Committee has noted the Government’s indications that such private institutions or entities are non-profit-making and that any work performed by sentenced offenders for such private agencies is of real benefit to the community. The Committee has also noted that, even if community work placement is a home or institution that is privately owned, 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 (Community Probation Service (CPS) Operations Manual, Volume 3 – “Community Work”). The Committee further noted that the offender may not undertake work that would otherwise be undertaken by a person in normal paid employment (section 63 of the Sentencing Act).

While taking due note of the above information, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted persons are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory work of convicted persons does not extend to their work for private parties, even if they are not for profit and even if they are under public supervision and control. The Committee also refers in this connection to the explanations contained in paragraphs 123–128 of its General Survey of 2007 on the eradication of forced labour, where the Committee has considered that, in order to ensure compliance with the Convention in a situation where community work may be performed for private institutions, such as, e.g. charitable bodies, convicted persons must give their formal consent to perform community work. If voluntary consent of convicted persons to work for private agencies is guaranteed, such work would not fall within the scope of the Convention.

The Committee observes, however, that there is no requirement in the legislation that the penalty of community work should be imposed with the consent of the offender. On the contrary, as the Committee previously noted from Volume 3 of the Community Probation Service (CPS) Operations Manual referred to above, “community work is a compulsory sentence, i.e., it is imposed without the offender’s consent”.

The Government indicates in its latest report that, while written consent by offenders is not required to complete their community work sentence with a community agency, in general offenders prefer to complete their sentence at an agency, as the work tends to be more rewarding. While taking due note of this indication, the Committee hopes that, in the light of the above explanations, measures will be taken to ensure, both in law and in practice, that convicted persons performing community work are not hired to, or placed at, the disposal of private agencies without their consent, and that the Government will provide, in its next report, information on the progress achieved in this regard.

Articles 1(1), 2(1) and 25. Trafficking in persons. The Committee has noted with interest the information supplied by the Government concerning various measures taken to prevent and combat trafficking in persons for the purpose of exploitation, including extracts of the relevant legislative provisions annexed to the report. It notes, in particular, the Government’s statement that New Zealand has not identified any human trafficking situation or any cases of human trafficking in the course of immigration operations or fraud investigations, and that the Government is committed to maintaining its record as a country with no reported incidences of human trafficking. The Committee also notes the information on the development of a National Plan of Action to Prevent Trafficking in Persons, which is aiming at awareness raising, coordinating prevention activities, ensuring victim protection and aligning law enforcement/judicial investigation and prosecution. The Committee hopes that the Government will supply a copy of the National Plan, as soon as it is adopted, and provide information on its application in practice, including the information on any legal proceedings which have been instituted against perpetrators and on the penalties imposed.

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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.

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The Committee has noted the information provided by the Government in reply to its earlier comments. It has also noted the comments made by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand on the application of the Convention, communicated by the Government, as well as comments made by the International Confederation of Free Trade Unions (ICFTU) dated 6 May 2003.

1. Sentence of community work. The Committee has noted that the Sentencing Act, 2002, which came into force on 30 June 2002, introduced a new sentence of community work, which replaced the sentences of periodic detention and community service. The Committee notes that a sentence of community work may be imposed by 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. The sentence may be for not less than 40 or more than 400 days as the court thinks fit (section 55).

The Committee also notes that the court is entitled to impose a community-based sentence or fine, or both, only if the court does not regard a fine as being the appropriate sentence, or because the court does not consider that the offender has the financial capacity to pay (section 15).

The Committee notes that the Act provides guidance on the use of the sentence of community work (section 56), concurrent and cumulative sentences of community work (section 57) and length of sentence of community work (section 58). In addition, the Committee notes that it is a probation officer who must determine placement of the offender for community work (section 61).

The committee notes that the Act defines the authorized work for a person sentenced to community work (section 63). The types of work are:

(a)  at or for any hospital or church or at or for any charitable, educational, cultural, or recreational institution or organization (including a marae); or

(b)  at or for any other institution or organization for old, infirm, or disabled persons, or at home of any old, infirm, or disabled person; or

(c)  on any land of which the Crown or any public body is the owner or lessee or occupier, or any land that is administered by the Crown or any public body.

Further, section 63(2) prohibits the offender, when performing such services or work, from taking the place of any person who would otherwise have been employed to do that work in the ordinary course of that person’s paid employment.

The Committee notes that the days and times at which an offender performs work must be fixed by agreement between a probation officer and either the community work centre or the agency (section 64) and that the offender is subject to the control, direction and supervision of a probation officer while the offender is doing work at a community work centre or an agency (section 65).

The Committee wishes to recall in this connection that Article 2(2)(c) of the Convention expressly prohibits that convicts be hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory work of convicted persons does not extend to their work for private entities, even if they are not for profit and even if they are under public supervision and control. However, such community work sentences could be imposed if the offender either requests to do such community work, or gives free and voluntary consent to so perform the work. The Committee therefore requests the Government to indicate, in its next report, whether measures are taken or envisaged to ensure that offenders performing community work are not hired to or placed at the disposal of private individuals, companies or associations without their consent and, if so, how the voluntary consent of the persons concerned to work for a private user of community work is guaranteed.

2. Prison labour in privatized prisons. Private use of labour in state prisons. In its previous comments, the Committee noted that the Auckland Central Remand Prison (ACRP) was administered by Australasian Correction Management, a private concern. The Committee notes with interest the Government’s statement in the report that it is now government policy that the private prison be allowed to continue with the management of the ACRP until the end of its contract and then revert back to government control by July 2005. The Committee is looking forward to receiving from the Government further information on this issue.

The Committee also notes with interest the Government’s statement in the report that inmate participation in inmate employment, excepting self-sufficiency roles, is voluntary. The Government indicates that Corrections Inmate Employment is currently developing the inmate induction package for all inmates undertaking employment, which will include, inter alia, a consent document to be signed by inmates to acknowledge that they have voluntarily accepted to participate in employment. The Committee would appreciate it if the Government would provide a copy of this document, as soon as the induction package is completed.

Referring to its observation of satisfaction under the Convention, the Committee has noted the Government’s indication in the report that existing contracts with private sector industries have been reviewed, and that the Department of Corrections no longer participates in any contractual arrangements where private sector management is part of a contract. It would be grateful if the Government would indicate, in its next report, whether the Department’s inmate employment policy (which refers, among other categories of inmate employment, to commercial industries run in cooperation with the private sector) will also be revised accordingly and, if so, supply a copy of a revised text.

3. Trafficking in persons. The Committee has taken note of the information supplied by the Government concerning measures taken to prevent, suppress and punish trafficking in persons for the purpose of exploitation. It notes, in particular, the information on the legislative amendments made in 2002 which, according to the Government, were considered necessary because the New Zealand experience had been that the exploitation of people working unlawfully, whether trafficked or not, often fell short of the more serious offences of slavery or debt bondage. Noting also that, in the communication of 6 May 2003 referred to above, the ICFTU alleged that there were reports of bonded labour involving migrant workers in the commercial sex industry, the Committee requests the Government to refer to these allegations and to provide, in its next report, information on any legal proceedings which have been instituted as a consequence of the application of the legislative amendments referred to above and on the penalties imposed, as required in the report form under Article 25 of the Convention.

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Work of prisoners for private employers. Further to its earlier comments on the subject, the Committee notes with satisfaction from the Government’s report that, since 31 July 2002, the Department of Corrections has had no inmates hired to private individuals or private sector organizations for work, as the Department has ceased all contractual arrangements where there had been direct private sector management of industries.

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The Committee has noted the Government’s report with responses to the Committee’s 1999 direct request and 1998 general observation, as well as the comments of the New Zealand Employers’ Federation on the Government’s report.

1. Obligations imposed on social security beneficiaries. Further to its previous comments, the Committee notes with interest the Government’s indication in its response that it intends to take a more facilitative approach to assisting people to find work, with less emphasis on compulsion and more on obtaining sustainable results through working with beneficiaries on an individual level to build their capacities and make the most of opportunities. Noting also with interest the adoption and entry into force of the Social Security Amendment Act, 2001, the Committee looks forward to learning about administrative practice under the amended legislation.

2. Privatized prisons and prison labour. (a) Inmates of privatized prisons. The Committee notes from the Government’s response to the 1998 general observation that the new remand centre in Auckland is administered by Australasian Correction Management, a private concern, and that internal services (e.g. cleaning, kitchen, laundry) will be manned by inmates. The Committee requests the Government to indicate whether the new remand centre in Auckland houses only remand prisoners, or also convicted prisoners and, if so, which category or categories perform work or services.

(b) Conditions of employment. The Committee notes the Government’s indication that section 20(1) and (2) of the Penal Institutions Act, 1954, requires that each inmate (excluding those awaiting trial or on remand) shall be employed in such work as may be directed by the superintendent of the institution.

The Committee refers to Articles 1(1) and 2(1) and (2)(c) of the Convention, which neither permit work to be imposed on unconvicted prisoners anywhere, nor allow that convicted prisoners be hired to or placed at the disposal of private individuals, companies or associations; thus, the manning of internal services by any inmates in a privately administered institution would only be compatible with the Convention under the conditions of a free employment relationship, that is, with the person’s consent, free from the menace of any penalty in the wide sense (such as a reduced prospect of early release) and, since those concerned remain a captive labour force, under arm’s length conditions of employment, including wages approximating those accepted by workers having access to the free labour market. The Committee refers in this regard to the explanations provided in its general observation under the Convention as well as in paragraphs 82-146 of its General Report of last year.

(i) Consent. The Committee notes from the Government’s reply to point (viii) of the 1998 general observation that inmates are provided with a written document "stating what the work is", etc. which they "then sign ... to signify their understanding of the rules and expectations of both parties". This does not appear to imply that they are being asked for their consent. The Government is requested to supply a specimen of the document in question, as well as information on any further measures taken, also in respect of section 20(1) and (2) of the Penal Institutions Act, to make work by any prisoners in privately managed institutions subject to their formal consent.

(ii) Menace of a penalty. In point (viii) of its 1998 general observation, the Committee also asked how consent is guaranteed to be free from the menace of any penalty, including any loss of privileges or other disadvantages following a refusal to work. The Committee notes that the Government’s reply addresses the procedure for dispute resolution, but not the issue of how refusal to work may reflect on prisoners’ privileges and prospects of early release. It hopes that the relevant rules will be reviewed in this light and that the Government will forward a copy thereof.

(iii) Arm’s length conditions. The Committee notes the Government’s indication that weekly allowances for inmates engaged in internal services are up to NZ$17 per week, that is, less than 7 per cent of the adult minimum wage rate in New Zealand, and that "no other benefits accrue". The Committee hopes that the necessary measures will be taken to ensure that prisoners in privatized institutions will be offered arm’s length conditions of employment, including wages that would be acceptable to workers having access to the free labour market, as well as accident insurance, and that the Government will report on action taken to this end.

(c) Private use of labour in state prisons. In points (iii) and (iv) of its general observation of 1998, the Committee had asked whether private parties are admitted by the prison authorities into prison premises of any kind for the purpose of engaging prisoners in employment, and whether employment of prisoners outside prison premises, either for a public authority or for a private enterprise, was allowed. The Government has replied to both questions negatively, explaining that "direct employment of prisoners by private parties is not permitted", and that "the individual prison may hold contracts for the supply/manufacture of goods and services to third parties, but all inmates so engaged are under the total control, administration and supervision of the prison".

The Committee takes due note of these indications. It, however, understands that at the time of the Government’s reply, the Inmate Employment Programme comprised not only state-owned and managed enterprises that produced goods for the open market, but also "private sector industries", where the prison hired the labour of prisoners to privately owned and managed businesses run inside the prison. Furthermore, it understands that prisoners, under the supervision of prison officers, were hired, inter alia, to private owners to carry out work such as fruit picking or tree planting.

Referring to the explanations given in point 6 of its general observation, the Committee must point out that the fact that prisoners remain at all times under the supervision and control of a public authority does not absolve the Government from the requirement that the persons are not to be hired to private individuals, companies or associations.

Thus, all prisoners working for private persons or enterprises need to be granted the conditions of free employment, as set out under (b) above with regard to privatized prisons. The Committee hopes that the Government will report on measures taken to this end.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous comments: The Committee noted the comments made by the New Zealand Council of Trade Unions (NZCTU) appended to the Government's report, as well as the Government's reply to these comments. 1. Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. The NZCTU reported deep concern about recent and proposed changes to the legislation relating to the introduction of a community wage scheme provided for in the Social Security Amendment Act (No. 5), 1998 and the Social Security (Work Test) Amendment Bill. According to the NZCTU, the effect of this legislation is that, from October 1998, people who receive unemployment benefit, sickness benefit or domestic purposes benefit through the New Zealand's system of social security are required to undertake "organized activities" as a condition of their entitlement to receive benefits; "organized activities" include forced labour accompanied by sanctions and penalties if beneficiaries refuse to work. The Government states in its reply that the NZCTU's comments relate to policies that were not implemented during the reporting period (i.e. the period ending 31 May 1998). The Government denies that the new legislation will violate the Convention; it does not address the details of the NZCTU's allegations but indicates its intention to provide a more detailed response to the concerns raised by the NZCTU in the next reporting period. The Committee requests the Government to supply a copy of the Social Security Amendment Act (No. 5), 1998, as well as the Social Security (Work Test) Amendment Act, as soon as it is adopted, and in the meantime draws the attention of the Government to paragraph 45 of the 1979 General Survey on the abolition of forced labour. Article 2, paragraph 2(c). 2. The Committee notes the information supplied by the Government on the work to which detainees may be directed under section 60(2) of the Criminal Justice Act, as amended in 1997. In order to enable the Committee to ascertain compliance with the provisions of Article 2, paragraph 2(c), the Government is requested to supply with its next report representative samples of Work Project Agreements concluded with sponsors under section 60(2)(a) and (b) of the Criminal Justice Act, as well as information on the legal and organizational status of work party supervisors in relation to the Department of Corrections and the various sponsors. 3. Referring to the general observation on the Convention made in its report to the 87th Session of the ILC (1999), the Committee requests the Government to include in its next report information as to the present position in law and practice as regards:

(i) whether there are prisons administered by private concerns, profit-making or otherwise;

(ii) whether any private prison contractors deploy prisoners to work either inside or outside prison premises, either for the account of the contractor or for that of another enterprise;

(iii) whether private parties are admitted by the prison authorities into prison premises of any kind for the purpose of engaging prisoners in employment;

(iv) whether employment of prisoners outside prison premises, either for a public authority or for a private enterprise, is allowed;

(v) the conditions in which employment under any of the above conditions takes place, in respect of remuneration (indicating the level and comparing it with minimum wage normally applicable to such work), benefits accruing (such as pension rights and workers' compensation), observance of occupational safety and health legislation and other conditions of employment (e.g. through labour inspection), and how those conditions are determined;

(vi) what the source of any remuneration is (whether from public or private funds) and for what purposes it must or may be applied (e.g. for the personal use of the prisoner or if it is subject to compulsory deductions);

(vii) for whose benefit is the product of prisoners' work and any surplus profit deriving from it, after deduction of overheads, and how it is disbursed;

(viii) how the consent of the prisoners concerned is guaranteed, so that t is free from the menace of any penalty, including any loss of privileges or other disadvantages following from a refusal to work.

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The Committee notes the information provided by the Government in its report. It also notes the comments made by the New Zealand Council of Trade Unions (NZCTU) appended to the report, as well as the Government's reply to these comments.

Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. The NZCTU reported deep concern about recent and proposed changes to the legislation relating to the introduction of a community wage scheme provided for in the Social Security Amendment Act (No. 5), 1998 and the Social Security (Work Test) Amendment Bill. According to the NZCTU, the effect of this legislation is that, from October 1998, people who receive unemployment benefit, sickness benefit or domestic purposes benefit through the New Zealand's system of social security are required to undertake "organized activities" as a condition of their entitlement to receive benefits; "organized activities" include forced labour accompanied by sanctions and penalties if beneficiaries refuse to work. The Government states in its reply that the NZCTU's comments relate to policies that were not implemented during the reporting period (i.e. the period ending 31 May 1998). The Government denies that the new legislation will violate the Convention; it does not address the details of the NZCTU's allegations but indicates its intention to provide a more detailed response to the concerns raised by the NZCTU in the next reporting period. The Committee requests the Government to supply a copy of the Social Security Amendment Act (No. 5), 1998, as well as the Social Security (Work Test) Amendment Act, as soon as it is adopted, and in the meantime draws the attention of the Government to paragraph 45 of the 1979 General Survey on the abolition of forced labour.

Article 2, paragraph 2(c). The Committee notes the information supplied by the Government on the work to which detainees may be directed under section 60(2) of the Criminal Justice Act, as amended in 1997. In order to enable the Committee to ascertain compliance with the provisions of Article 2, paragraph 2(c), the Government is requested to supply with its next report representative samples of Work Project Agreements concluded with sponsors under section 60(2)(a) and (b) of the Criminal Justice Act, as well as information on the legal and organizational status of work party supervisors in relation to the Department of Corrections and the various sponsors.

[The Government is asked to report in detail in 1999.]