Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

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.