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Transnational Organised Crime Bill - Submission to Foreign Affairs, Defence and Trade Select Committee [2002] NZHRCSub 1 (15 April 2002)

Last Updated: 26 March 2015


Submission of the
Human Rights Commission
to the Foreign Affairs, Defence and Trade
Select Committee on:



The Transnational Organised Crime Bill
___________________________________________________



15 April 2002

Contact person:
David Fleming
Solicitor/Policy Analyst
Direct Dial (09) 375 8647

We do not seek leave to make oral representations on this submission.

SUBMISSION OF THE HUMAN RIGHTS COMMISSION TO THE FOREIGN AFFAIRS, DEFENCE AND TRADE SELECT COMMITTEE ON THE TRANSNATIONAL ORGANISED CRIME BILL

1. Introduction and Summary

1.1 The Transnational Organised Crime Bill contains a range of provisions related to transnational organised crime generally, and to smuggling of migrants and trafficking of people specifically.

1.2 The Human Rights Commission seeks to make submissions upon this Bill for two major reasons:

1.2.1 The Human Rights Commission has played a key role in the repatriation of trafficked women working in the sex industry in Auckland.

1.2.2 Some of the provisions in the Bill relating to smuggling of migrants may have implications for the human rights not only of unlawful migrants or migrants who exceed their visas, but also for people lawfully living and working in New Zealand.

1.3 Thus the Commission’s comments reflect both its experience of trafficking issues and its statutory mandate to promote the human rights of all those in New Zealand, and positive relations between racial and ethnic groups.

1.4 Generally the Commission supports those aspects of the Bill that are relevant to its work. In particular the Commission wishes to express support for:

1.4.1 Clause 21 of the Bill, which introduces a new section 39A of the Immigration Act 1987, prohibiting both the exploitation of people who are unlawfully working in New Zealand, and the conditions that can allow such exploitation to occur, such as preventing a person from leaving premises unaccompanied.

1.4.2 That part of clause 6 of the Bill which introduces a new section 98AC of the Crimes Act 1961, creating an offence of trafficking by means of coercion or deception.

1.5 However the Commission recommends that:

1.5.1 The Attorney-General’s consent not be required before there can be a prosecution for trafficking, as in the context of trafficking (where both witnesses and accused are often not normally resident in New Zealand), anything that could delay prosecution, even to a minor extent, may act as an impediment to the prosecution process.

1.5.2 There be careful consideration of how the detection of migrants seeking to work unlawfully in New Zealand (as contemplated by clause 40 of the Bill) may be balanced with the Human Rights Act 1993’s prohibition of questioning by employers that may reasonably be understood as implying an intention to discriminate unlawfully.

1.5.3 Section 149D of the Immigration Act 1987 (which prohibits the Human Rights Commission from becoming involved, whether as a party or as an intervenor, in proceedings relating to anything done under the Immigration Act) be repealed or narrowed, so that the powers of the Commission are not unduly fettered in human rights-related areas such as the detention of unlawful migrants.

2.Part 1 of the Bill: Amendments to the Crimes Act

2.1 Part 1 of the Bill adds several new sections to the Crimes Act 1961. Among these are the new sections 98AA to 98AE, which are introduced by clause 6 of the Bill. These provisions address smuggling and trafficking in people.

2.2 The Commission supports the intent of these provisions, and welcomes in particular the proposed new section 98AC, which creates an offence of trafficking in people by means of coercion or deception. This has the potential to be an important new tool for dealing with the problem of people-trafficking, and appears an apt means for addressing the sort of situations the Commission has previously dealt with where women were lured to New Zealand to work in the sex trade by false promises about the work that would be available to them upon arrival.

2.3 However the Commission is concerned about the potential effects of the proposed new section 98AE, which provides Attorney General’s consent is to be required before a prosecution can be laid for a breach of 98AB (which relates to people smuggling) or 98AC.

2.4 These provisions sit alongside, and are complementary to, the existing section 98 of the Crimes Act, which prohibits the importation, employment, sale or any other dealings with slaves. The definition of slaves used in section 98 includes people under debt bondage, a common feature of people smuggling and trafficking.

2.5 In the Commission’s experience, prosecutions for breaches of section 98 of people involved in importation of people under debt bondage are significantly rarer than detection of the crime itself.

2.6 One of the reasons for this is that people smugglers and traffickers are often highly mobile, and the very nature of their offending means they are likely to quickly move in and out of any given jurisdiction. In addition possible witnesses often seek to be repatriated, or are removed from New Zealand.

2.7 Thus any factor that could delay prosecution, even to a minor degree, has the potential to impede the prosecution process. It is entirely possible that section 98AE could have this effect. While 98AE(2) allows the arrest of suspects prior to the obtaining of the Attorney-General’s consent, it does not address the difficulty that the primary witnesses in any trafficking or smuggling case are likely to be removed from or leave the country shortly after the detection of the offence. Hence even minor delays while the Attorney-General’s consent was obtained could affect the prospect of a successful prosecution.

2.8 Therefore the Commission recommends that the proposed new section 98AE of the Crimes Act be deleted from clause 6.

3. Part 3: Amendments to the Immigration Act


Clause 21

3.1 Part 3 of the Bill makes substantial amendments to the Immigration Act 1987. These provisions address issues relating to people smuggling, including employment of persons not entitled to work in New Zealand, and are intended to promote compliance with the United Nations Convention Against Transnational Organised Crime and its Protocols on the Smuggling of Migrants and Trafficking in Persons.

3.2 Clause 21 creates an offence of exploitation of people not legally entitled to work. It prohibits both exploitation per se (such as serious default under the Minimum Wage Act 1983) and actions designed to prevent the person from leaving exploitative employment or to obtain their entitlements under New Zealand law (such as prohibiting people from leaving premises unaccompanied).

3.3 This clause is an important advance, and is supported by the Commission. It has the potential to improve the accountability of those who exploit migrants, and thereby ultimately improve the conditions experienced by migrants.

3.4 In addition it promotes consistency with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

3.5 Aside from the matters addressed in this Bill, there remain a number of areas where New Zealand laws and practices are inconsistent with the Convention. However the Commission believes that these areas of inconsistency should be eliminated where possible, and that future policy relating to migrant workers should be reflective of the Convention, enabling New Zealand to move toward ratification of it.


Clause 20

3.6 Clause 20 amends the existing section 39 of the Immigration Act to make it an offence for employers to, without reasonable excuse, employ a person who is not entitled to undertake that employment. (Currently section 39 prohibits knowingly employing a person who is not entitled to undertake that employment, but does not apply to situations where the person’s entitlement to work is not known.)

3.7 This clause is not inconsistent with section 23 of the Human Rights Act 1993 (which prohibits employers from asking questions that may reasonably be understood as implying an intention to discriminate). However in endeavouring to avoid liability under the amended section 39 of the Immigration Act, employers may unwittingly breach section 23 of the Human Rights Act, by asking migrants or members of minorities questions which could be understood as implying an intention to discriminate on the grounds of race or ethnic or national origins.

3.8 Further, there is a risk that employers could come to consider it to be risky to employ migrants or members of particular ethnic groups, or migrants or members of ethnic minorities could come to feel that they had become objects of suspicion.

3.9 Should one or both of these scenarios come to bear, the right to freedom from discrimination in employment and race relations in New Zealand more generally could be significantly harmed.

3.10 Therefore while the Commission does not oppose the clause, it urges that there be careful consideration of what the potential impact of the clause on human rights and race relations could be, and how any negative effects may be prevented or mitigated.


Section 149D

3.11 The existing section 149D(1) of the Immigration Act (introduced by the Human Rights Amendment Act 2001) provides that no complaint relating to actions undertaken pursuant to the Immigration Act may be made under the Human Rights Act. In addition, 149D(3) provides that the Commission cannot initiate, or become involved (whether as a party or as a non-party intervenor) in, any proceedings concerning actions undertaken pursuant to the Immigration Act.

3.12 The potential effects of this section are of concern to the Commission, as fundamental human rights issues are frequently at stake in immigration matters, particularly in areas such as the detection, processing, detention and removal of unlawful migrants (including both migrant workers and asylum seekers).

3.13 Section 149C of the Immigration Act states that the purpose of section 149D is to recognise that “immigration matters inherently involve different treatment on the basis of personal characteristics”. Regardless of whether immigration matters are indeed inherently discriminatory or whether section 149C merely describes current New Zealand practices, it is clear that the intent of section 149D is to prevent issues of possible unlawful discrimination being pursued under the Human Rights Act.

3.14 The Human Rights Commission is not uncomfortable with the idea that complaints processes under the Human Rights Act should not become a de facto alternative to review processes under the Immigration Act. The Commission has a discretion to decline to inquire into matters where another remedy is available to complainants. Without any statutory requirement to do so, the Commission frequently exercises this discretion where it considers that matters may be more appropriately dealt with through other jurisdictions such as statutory appeals authorities or investigatory bodies. Similarly even if section 149D were repealed altogether, it is highly unlikely that the Commission would seek to replicate the work of the Removal Review Authority, the Residence Appeal Authority, or other relevant bodies.

3.15 However the role of the Commission is much wider than simply dealing with complaints of unlawful discrimination. Indeed since the operational separation of the Office of Human Rights Proceedings from the Commission itself, the litigation role of the Commission may be seen to relate not so much to complaints of unlawful discrimination, but rather to matters where human rights issues that cannot be pursued through the statutory complaints process may arise. Thus were it not for section 149D, the Commission would in practice be more likely to be involved in litigation relating to matters such as potential abuse of the power to detain suspected unlawful migrants, than it would be to attempt to pursue litigation about possible unlawful discrimination under the Human Rights Act.

3.16 Hence the effect of section 149D is far broader than the purposive section 149C indicates it should be, and prohibits the Commission from becoming involved in litigation about issues of human rights concern quite unrelated to discrimination.

3.17 Part 3 of the Bill extends the powers that may be exercised under the Immigration Act in areas where human rights may be affected. The Commission believes it has an important role in ensuring that such powers are not used in a manner that is inconsistent with New Zealand’s human rights obligations.

3.18 Therefore the Commission recommends that in order to help ensure that powers under the Immigration Act are not used oppressively, section 149D should ideally be repealed, or at a minimum, its scope should be narrowed to reflect its purpose as stated in section 149C.




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