By Lauren Aspoas

For many, slavery is a relic of the past. This is not reality. Slavery is at a historic high, with an estimated 40 million people across the globe trapped in some form of modern slavery.[1]

Furthermore, last year saw the first prison sentence given concerning slavery in New Zealand.[2] Exposed within that case was the reality that slavery is not a foreign problem. With modern slavery becoming an undeniable issue, New Zealand’s legislative background must be sufficient to prevent and prosecute it.

Current Law

Slavery under International Law

Protection from slavery is a human right.[3] As such, there are numerous international documents which prohibit slavery. New Zealand is specifically party to the International Covenant on Civil and Political Rights (ICCPR) and the Slavery Convention.

The ICCPR has a general, binding statement; “no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited”.[4] However, this expansive rule is restricted by subsection 3, which allows slavery in the forms of prison labour, military work, and services exacted under emergency or normal civil obligations.[5] This qualification on the prohibition of slavery severely undermines its limit. Thus, despite the document’s binding status on the countries that ratified it, member states are not bound to an absolute prohibition of slavery.

Arguably, this issue is offset by the jus cogens status of the prohibition of slavery. Jus cogens rules are so fundamental that they are deemed international law that applies to all, regardless of individual state assent. Since accepted by the International Court of Justice in 1962, the prohibition of slavery has been awarded this influential status.[6] As a result, slavery is universally prohibited and enforceable under international law.

Slavery under Domestic Law

New Zealand’s international obligations to prevent slavery are largely satisfied under the Crimes Act 1961. The “dealing with slave” provision is broad.[7] It includes the sale, employment, detention, inducement, and transport of slaves.[8] It also covers gender specific slavery, age specific slavery, conspiracy, and intention.[9]

In practice, this slavery provision has only been successfully prosecuted under once. R v Matamata involved serial slavery, which occurred within the horticulture industry since 1994.[10] Cull J bestowed an 11-year sentence of imprisonment concerning the 13 charges of slavery and 10 charges of human trafficking.[11] The specific slavery charge was for the “use of any person as a slave”,[12] with every victim meeting this definition.

There are also some minor provisions that supplement the general slavery prohibition. For example, within the Immigration Act there is a section dedicated to the exploitation of unlawful employees and temporary workers.[13] Further, the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014 subjects foreign owned fishery vessels to New Zealand slavery laws while in New Zealand waters.[14] Thus, the current approach to slavery legislation in New Zealand is a piecemeal and disconnected one.

Law Reform

Is Law Reform Necessary?

In 2015, the United Kingdom enacted a Modern Slavery Act which included a section requiring certain commercial companies to investigate slavery in their supply chains.[15] In 2018, Australia passed an entire Act devoted to increasing transparency regarding slavery within supply chains.[16] As of yet, New Zealand has no legislation covering this area of modern slavery. As each New Zealand household spend an average of $34 per week on items linked to modern slavery,[17] law reform is needed to cover this omission.

Moreover, the current general slavery legislation has only been prosecuted under once. As shown in a 2016 report, this is not due to a lack of cause. New Zealand has a troubling landscape of exploitation and slave-like practices, specifically in “labour intensive industries” like construction and horticulture.[18] Often in the forms of non-payment and the restriction of movement.[19] Clearly, the current legislation has been inadequate in addressing these issues.

Further, modern slavery in New Zealand and worldwide is predicted to be exacerbated by COVID-19. The pandemic is likely to disproportionately hurt those already exploited, increase the risks of modern slavery, and distract from current response regimes.[20] Thus, reforming the law at this moment is vital.

Finally, New Zealand’s primary slavery provision last underwent reform in 2001.[21] Thus, the legislation is no longer sufficient for combatting modern slavery. As a result, law reform is needed to adequately deal with the issues of modern slavery in New Zealand today. 

Proposed Law Reform

Under the current Labour government, there has been a push for New Zealand’s slavery legislation to be reformed. In 2019, the government ratified the International Labour Organisation’s Protocol to the Forced Labour Convention.[22]This required states to take measures in preventing, protecting, and remedying forced labour. However, the actual legal impact of this ratification on New Zealand’s slavery legislation has yet to be seen.

During their 2020 last election campaign, Labour reaffirmed promises to focus on implementing modern slavery legislation.[23] Again legal reform has not actualised; however, early this year the Ministry of Business, Innovation and Employment put forward an Action Plan.

The Action Plan against Forced Labour, People Trafficking, and Slavery contains a three pillar approach: prevention, protection, and enforcement. Despite intending a “holistic approach” to slavery law, the plan is fragmented.[24] Instead of referencing a single, modern slavery act, the plan proposes reform by extending current programmes. Thus, the piecemeal protection currently offered in New Zealand law is not alleviated but exacerbated. For example, one of the actions suggested is continuing to promote ethical work practices through a series of Employment New Zealand work practice resources.[25]

While soft regimes are beneficial in the long term in raising awareness around modern slavery, it is inadequate in the short term. Regarding concrete legislative change, the Action Plan states it will be considered.[26] The inactive approach contained in the Action Plan has attracted criticism, as expressed by Selwyn Coles, the spokesperson for the Human Trafficking Research Coalition;[27]

“the Government’s new plan falls well short of what is needed to meet the realities of modern slavery, trafficking and exploitation within New Zealand shores, and New Zealand supply chains.”

Ultimately, this plan of action shows the government’s complacency in its commitment to legislative change in the field of slavery.

In response to this government inaction, there has been an external call for a Modern Slavery Act. The petition, sponsored by Trade Aid and World Vision, demands the New Zealand parliament to legislate law surrounding supply chain transparency, “as a matter of urgency”.[28]

Specifically, it would require businesses to do due diligence in the risks of slavery within their production. Numerous New Zealand businesses have signed an open letter supporting this proposition, including Foodstuffs, the Warehouse and AUT.[29]

As this petition has yet to advance beyond the general purpose, it is unknown how extensive the slavery legislation would be. An initial concern is its narrow focus on supply chain transparency. The open letter focuses on an Act for “New Zealand business and public sector supply chains”.[30] This is an key aspect of modern slavery for legislation to cover, as it gives effect to the foreign partnership obligations within international agreements.[31] However, it is limiting in its effect of neglecting domestic slavery from reform due to New Zealand’s production processes largely relying on imports.

An act that solely focuses on supply chain transparency would reflect the Australian Modern Slavery Act. However, Australia’s legislative background for slavery offences is far more comprehensive than in New Zealand. In Australia, three key acts contain the prohibition of slavery; the Criminal Code, Crimes Act 1914 and Migration Act 1958. They are expansive, comprehensive, and largely collated. This is in contrast to New Zealand’s legislative background. Thus, while law reform that focused exclusively on companies’ production processes was sufficient in Australia, it is unlikely to be sufficient to deal with slavery in New Zealand.

instead, New Zealand law reform should follow the United Kingdom Modern Slavery Act. General comprehensive laws surrounding slavery prohibition form the basis of the United Kingdom Act. With the duty on individual companies’ of due diligence being a relatively minor part of the legislative matrix. This recommendation to follow the United Kingdom’s “consolidated slavery” offence is echoed in Dr. Springer’s report,[32] with the benefit being the holistic nature of the legislation. As opposed to having piecemeal protection, the prohibition is contained in one statute. Resultingly, the unification of slavery law would make it more accessible to those who need it.

Further, this unified law reform would give effect to the Action Plan, specifically its focus on accessibility and education. A key aspect of preventing slavery is to make the information accessible.[33] Thus, an approach to law reform that not only collates New Zealand’s slavery legislation but expands upon it, should be considered.

Conclusion

Ultimately, New Zealand’s slavery legislation needs reformation. As the current state is insufficient to deal with the real issue of modern slavery, both in New Zealand and internationally. The area of slavery prohibition is not suited for passive alterations; active reform must be favoured.

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Featured image source: George Hodan on Public Domain PIctures.

 

[1] Trade Aid and World Vision “Take Action Against Modern Slavery” Sign for Freedom <www.signforfreedom.nz>.

[2] R v Matamata [2020] NZHC 1829.

[3] Declaration of Human Rights (10 December 1948), art 4.

[4] International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19 December 1966, entered into force 23 March 1976), art 8(1).

[5] At art 8(3)(a).

[6] Barcelona Traction, Light and Power Company (Belgium v Spain) (Second Phase) (1962) ICJ Rep 3 [1970] at 32.

[7] Crimes Act 1961, s 98.

[8] At ss 98(1)(a)-(f).

[9] At ss 98(1)(g)-(j).

[10] R v Matamata, above n 2, at [5].

[11] At [85].

[12] Crimes Act, above n 7, s 98(1)(b).

[13] Immigration Act 2009, s 351.

[14] Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014.

[15] Modern Slavery Act 2015 (UK), s 54.

[16] Modern Slavery Act 2018 (Cth).

[17] World Vision New Zealand “What will a Modern Slavery Act do?” <www.worldvision.org.nz>.

[18] Christina Stringer Worker Exploitation in New Zealand: A Troubling Landscape (University of Auckland, Auckland, 2016) at vi.

[19] At viii.

[20] James Cockanye and Angharad Smith “The Impact of COVID-19 on Modern Slavery” (2 April 2020) Our World <https://ourworld.unu.edu>.

[21] Crimes Amendment Act 2001, s 3.

[22] Hon Iain Lees-Galloway “Ratifying convention to prevent forced labour, and taking steps to end harassment and violence at work” (press release, 21 June 2019).

[23] Labour 2020 “Our Manifesto to Keep New Zealand Moving” (media statement, 13 October 2020) at 16.

[24] Ministry of Business, Innovation & Employment Plan of Action against Forced Labour, People Trafficking and Slavery (December 2020) at 4.

[25] At 11.

[26] At 14.

[27] Human Trafficking Research Coalition “Government Releases New Plan On Modern Slavery: A Good Start But More Concrete Action Needed" (press release, 18 March 2021).

[28] Sign For Freedom “Take Action Against Modern Slavery” <www.signforfreedom.nz>.

[29] Open Letter from Walk Free, Trade Aid and World Vision to Michael Wood (Minister of Workplace Relations and Safety) regarding a government inquiry into a Modern Slavery Act (16 March 2021).

[30] Ibid.

[31] Slavery Convention (opened for signature 25 September 1926, entered into force 9 March 1927), art 4.

[32] Christina Stringer Worker Exploitation in New Zealand: A Troubling Landscape, above n 18, at xv.

[33] Ministry of Business, Innovation & Employment Plan of Action against Forced Labour, People Trafficking and Slavery, above n 24, at 13.