|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Human Rights Commission Submissions |
Last Updated: 28 April 2015
SUBMISSION FORM
Consultation on a Plan of Action to Prevent People Trafficking
Please note that any submissions that you make may be the subject of a request under the Official Information Act 1982. To assist the Department of Labour in the processing of such requests, you will be requested to indicate at the beginning of your submission whether or not you would like the contents made a matter of public record. Any request for non-disclosure will be considered in terms of the Official Information Act.
Would you be like your submission to be released? (Type “YES” or :NO”):
YES
Would you like to be consulted prior to any release? (Type “YES” or “NO”):
YES
Information about you (optional)
This submission was made by:
Organisation: Human Rights Commission
Postal address: P O Box 6751, Wellesley Street, AUCKLAND 1141
Name of contact person: Jack Byrne
Role/Position (if applicable): Senior Policy Analyst
Please answer as many or as few questions as you would like. Please give reasons for your views. You may attach additional pages to your submission.
Submissions close on 31 July 2008. Extension given till Thursday 7 August.
Introduction
The Human Rights Commission has a long standing and keen interest in issues of people trafficking. Therefore we welcome this consultation process as an important step in the development of a national plan of action for New Zealand.
This submission starts by outlining the Commission’s human rights approach and what this means in relation to the issue of people trafficking. It then provides brief responses to some of the discussion document questions and notes some gaps, including the absence of any material on the specific role that national human rights institutions such as the Commission play in the fight against trafficking. Explicitly identifying the role of the Human Rights Commission is important for two significant reasons.
Firstly, section 149D of the Human Rights Act 1993 excludes the Commission from investigating alleged discrimination under the Immigration Act 1987 or policy made under it. Only complaints of alleged discrimination in service delivery by Immigration New Zealand can be accepted.
Secondly, New Zealand has not ratified two of the major international treaties concerning migrant workers. These are ILO 143 which focuses on irregular migration including smuggling and trafficking and the United Nation’s 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. The UN Convention extends considerably the legal framework for migration, the treatment of migrants and the prevention of exploitation and irregular migration.
The considerable controversy over the promotion, ratification and implementation of the ILO Conventions and the 1990 Migrant Workers Convention highlights the tension between a human rights approach to social protection and the increasingly deregulated globalised use of labour. International human rights standards provide a tool to manage this tension in a principled and transparent manner.
The Commission therefore has a role in monitoring the human rights impacts of anti-trafficking laws, policies and interventions. This includes a focus on their effectiveness in preventing and combating trafficking, protecting and supporting victims of trafficking, and promoting cooperation between States on trafficking issues.
A Human Rights Approach to People Trafficking
The 'human rights approach' forms the conceptual base that the Commission uses in all aspects of its work. This approach, developed internationally and adapted for New Zealand by the Human Rights Commission, requires:
In the context of this discussion document, all of these elements are relevant to varying degrees, as outlined below.
Relevant Human Rights Instruments
The discussion document starts
with a strong commitment to the international obligations set out in the United
Nations Convention
against Transnational Organised Crime (Palermo Convention)
and its supplementary Protocols, ratified by New Zealand on 19 July 2002.
It
notes that the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (Palermo Protocol)
requires New Zealand to develop
a three-pronged strategy to:
In addition the
Commission would like to highlight the Recommended Principles and Guidelines
on Human Rights and Human Trafficking published in 2002 by the United
Nations High Commissioner for Human
Rights.[1] These
principles and guidelines start with the assertion of the primacy of human
rights including:
Guideline 1 then sets out 10 actions which States
(and intergovernmental and non-governmental organisations, where applicable)
should
consider in order to promote and protect human rights. In summary, these
recommendations involve:
The
Human Rights Commission recommends that these principles and guidelines should
also inform the development of New Zealand’s
plan of action to prevent
people trafficking.
The discussion document cites New Zealand’s ratification of other relevant UN conventions, specifically the Convention on the Rights of the Child (CROC) and the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). In addition, the Commission recommends incorporating relevant International Labour Organisation conventions concerned with forced labour, given ‘forced labour or services’ are exploitative purposes specified in the Palermo Protocol’s definition of people trafficking. Key ILO Conventions include ILO 29 Forced Labour Convention and ILO 182 Worst Forms of Child Labour (ratified by NZ in 1938 and 2001 respectively).
Identifying, Balancing and Prioritising Rights
Trafficking is a violation of human rights. Both the Palermo Protocol and the UN High Commissioner for Human Rights’ principles and guidelines highlight measures required to ensure that trafficked people are not re-traumatised by anti-trafficking measures. In addition they draw attention to specific human rights that must be considered including ensuring that increased border security and anti-trafficking measures do not infringe upon the right to freedom of movement and the right to seek and enjoy asylum from persecution. A genuine rights-based approach also requires that those suspected of trafficking have the right to due process.
Participation
It will clearly be difficult to involve trafficked people directly in the development of New Zealand’s proposed plan of action. However, all attempts should be made to both draw from documented accounts of the issues trafficked people face, and to promote New Zealand’s ongoing consultation process within industries and communities where there is a higher risk of trafficking.
Non-discrimination
Women and children are identified as particularly vulnerable to people trafficking. As a result, the UN High Commissioner on Human Rights’ guidelines note the need:
It will be important to consider how New Zealand’s plan of action can address the vulnerability of people to trafficking to, from or through New Zealand based on relevant factors such as their gender, age or ethnicity.
The discussion document identifies that NZAID has specifically contributed funds to a range of international projects that aim to combat and prevent people trafficking. NZAID’s Policy for Achieving Gender Equality and Women’s Empowerment also includes a focus on trafficking of women and girls. A regional perspective is critical when developing new strategies to combat trafficking issues that go beyond national boundaries and sub-regions.
Empowerment
One of the intended aims of a plan of action should be that it empowers trafficked individuals and groups to assert their human rights, and clearly sets out how they can be involved its ongoing development and implementation. It will be very challenging to find ways to legitimise the voice of trafficked people in decision-making unless the plan is successful in guaranteeing them the protection, confidentiality and support necessary so they feel secure enough to come forward and participate.
Accountability
Central to a human rights approach is accountability of State parties, including government agencies, for their actions and decisions. This includes allowing individuals and groups to complain about decisions that affect them adversely. Accountability requires timely and transparent processes, including access to appropriate information and legal assistance (in appropriate languages) and rights of appeal.
In the context of this discussion document, the State is accountable for actions and decisions around both prosecuting traffickers and protecting and supporting trafficked people. Accountability mechanisms, including appeal bodies and possible remedies, should be included in any material describing processes available to trafficked people.
Trafficked people are likely to be illegal or irregular immigrants. Principle 7 in the UN High Commissioner for Human Rights’ report to the Economic and Social Council clearly states that:
Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.
Accountability mechanisms should ensure that trafficked persons are identified as quickly as possible so that they are not classified as illegal immigrants. Information about people trafficking (including access to legal assistance and rights of appeal) should be made available to anyone in this situation.
B Specific Discussion Document questions
Human Rights
Impacts
Currently, the discussion document does not include a specific description of
the role of national human rights institutions (NHRIS)
such as the Human Rights
Commission. The former High Commissioner for Human Rights, Mary Robinson,
identified NHRIs as “an
underutilised resource in the fight against
trafficking”[2]. Guideline 1
pinpoints the potential role NHRIs can play as an independent body monitoring
the human rights impacts of anti-trafficking
laws, policies, programmes and
interventions.
Evidence of Trafficking to, from or through New Zealand
The discussion document starts by noting that there is no evidence available that shows New Zealand is a source, transit or destination country for victims of trafficking. However, the absence of such evidence does not equate to proof that no trafficking occurs in New Zealand. The Human Rights Commission considers this distinction is important and should be explicit in the development of a plan of action. At a practical level it changes the focus of discussions from “what if complaints come forward?” to “what are the barriers preventing the identification of trafficking complaints?”.
It is useful to consider the following advice from a 2002 background paper on trafficking prepared for the Advisory Council of Jurists (a human rights law advisory panel to the Asia Pacific Forum of national human rights institutions):[3]
In relation to individual complaints, National Institutions must remain aware of the fact that the type of complaint received will usually reflect public perception of the institution’s functions and principal areas of concern. A Commission which has never issued a public statement on trafficking; never included trafficking related issues in its training or dissemination programs; and never provided relevant policy advice to government should not be surprised if it receives no complaints on this issue. Nor should it assume on this basis alone that the problem does not exist.
In the New Zealand Human Rights Commission’s experience, a well-publicised campaign was effective in bringing forward a small number of complaints between 1999 and 2001, as outlined below.
The Pink Sticker Campaign 1999-2001
In 1999, in response to concerns about Thai and other women and girls being trafficked into New Zealand and held in debt bondage, the Human Rights Commission set up a ‘safe house’ programme to assist Thai sex workers to escape enforced prostitution in New Zealand. This involved a telephone hotline in normal working hours accepting referrals from the Police, hospitals and private persons; provision of legal counselling and assistance; safe house accommodation for up to two weeks; crisis intervention and direct monetary assistance; and organising safe return to the country of origin in collaboration with women’s NGOs in Thailand.
The Human Rights Commission launched a 'Pink Sticker Campaign' in 2000 to publicise this repatriation programme. Information about the hotline and safe house was printed in Thai and English on pink stickers. These were placed in hospitals, red-light districts and police stations. The mayor of Auckland City and various organisations, including the Immigration Service, the Police, the Prostitutes’ Collective, Shakti Asian Women’s Centre and the Thai Embassy assisted the Commission with this campaign.
By April 2001, the Commission had helped six Thai women bonded to the New Zealand sex industry. This included assisting one of the women to make a successful claim in the Disputes Tribunal to recover money paid to the traffickers.
In December 2000 the Minister of Immigration suspended visa- free status between New Zealand and Thailand, in part because of the abuse of the system by traffickers and those working illegally here. Subsequently, there have been no further complaints or enquiries to the Commission from Thai women or other people trafficked into New Zealand. As a result, the Pink Sticker campaign is no longer in effect.
Since 2001
The Human Rights Commission has not received complaints
of people trafficking since 2000 / 2001. This may indicate that removing
visa-free
status between New Zealand and Thailand was a significant obstacle for
those seeking to benefit from trafficking sex workers.
The issue of
trafficking was not volunteered as an issue of concern during the
Commission’s 2003 / 4 consultation with over
5,000 people during the
development of Human Rights in New Zealand Today: Ngā Tika Tangata o te
Motu. This is not surprising given the sensitivity of these issues, the
reluctance of people to raise them in public meetings and the isolation
of
trafficked people. In addition, trafficked people are often illegal or
irregular immigrants, and are therefore likely to be very
wary of
“official” channels and may not perceive a human rights commission
to be independent (particularly if that is
not the case in their country of
origin). They are also likely to be unaware of institutionalised consultation
processes.
The Commission has supported attempts to develop a more coordinated approach to trafficking issues within New Zealand (working with relevant government agencies) and the Asia Pacific region (through its membership of the Asia Pacific Forum’s Trafficking focal point network). In November 2005 the Commission participated in an anti-trafficking workshop organised in Sydney by the Asia Pacific Forum. [4]
Based on those contacts, our understanding is that, at least in relation to
transnational organised crime, New Zealand is at greatest
risk of being a
transit point for trafficking to larger markets, where traffickers can make
greater profits. This places specific
pressure on border control agencies.
Therefore it is very important that the Bali Process on People Smuggling,
Trafficking in Persons
and Related Organised Crime and regional fora such as the
Pacific Immigration Directors’ Conference incorporate a human rights
approach to trafficking issues.
In late March 2006, the Commission was
informed by someone based in Thailand about possible imminent trafficking of
Thai women to
NZ. This occurred soon after an initial Interagency Workshop
organised by the Department of Labour on 22 March 2006 to discuss developing
a
national plan of action to combat trafficking in persons. The following extract
from a paper to the May 2006 Human Rights Commission
meeting emphasises the
value of a multi-agency approach to these issues.
4.3 Several days after the Interagency meeting the Commission received information from a Thailand-based informant regarding the possible imminent trafficking of Thai women to New Zealand for the purposes of sexual exploitation. The networks established at the Interagency meeting enabled the Commission to immediately alert the appropriate New Zealand agencies who quickly organised an intervention at the Thai airport concerned. Although no evidence of trafficking was secured, the national Interagency grouping allowed for an immediate international response.
Distinctions between Trafficking, Smuggling and others forms of Exploitation
Developing a plan of action to prevent people trafficking brings to a head debates about what ‘counts’ as trafficking. The guidelines developed by the UN High Commissioner on Human Rights emphasise that “effective and realistic anti-trafficking strategies must be based on accurate and current information, experience and analysis” (Guideline 3). They go on to ask States to consider adopting and promoting the internationally agreed definition of trafficking in the Palermo Protocol. The Human Rights Commission supports this approach.
Now that New Zealand is included in the US Department of State’s Trafficking in Persons Report, the difference between the US definition of trafficking and that contained in the Palermo Protocol also raises some confusion. The US report defines anyone under the age of 18 who is being used for prostitution as a victim of trafficking whereas the UN definition requires that the young person has also been taken across international borders.
Sexual exploitation of those under the age of 18 within New Zealand is still clearly a serious concern, but is governed by other criminal offences and does not constitute trafficking as defined by the Palermo Protocol. It would be valuable to clearly make this distinction within a plan of action. One suggestion would be to then provide links in an Appendix to relevant government and NGO agencies working on the issue of underage prostitution and other related issues which are not covered under the Palermo Convention or Protocol.
There are also significant, related forms of exploitation that fall outside the definition of people trafficking and therefore presumably will not be addressed in the plan of action. Paragraph 25 in the discussion document itself makes a distinction between people trafficking and smuggling, which is covered by a separate Protocol to the Palermo Convention.
The key difference is that trafficked people are under the control of the traffickers, unlike those who are smuggled. Victims of trafficking are subjected to exploitation and coercion at the hands of the traffickers. Smuggled migrants tend to enter countries illegally and tend to be left to their own devices once they have crossed the border.
However as the UN guidelines note, in the absence of sufficient expert investigation means cases may be erroneously identified as smuggling rather than trafficking:
While the additional elements that distinguish trafficking from migrant
smuggling may sometimes be obvious, in many cases they are
difficult to prove
without active investigation. A failure to identify a trafficked person is
likely to result in a further denial
of that person’s rights. States are
therefore under an obligation to ensure that such identification can and does
take place.
(Guideline 2)
Furthermore, the APF workshop attended by the
Human Rights Commission in November 2005 stressed that trafficked people may
initially
consent to be smuggled but, at some latter point of the process, be
coerced and exploited. In other words, smuggled people can be
extremely
vulnerable to the power of someone who has helped them enter a country illegally
and then forces them into exploitative
work.
These complexities raise
three immediate implications for this discussion paper and plan of action,
namely that:
Action in the absence of recent documented trafficking cases
The Commission supports the discussion document’s opening assessment that “there is no room for complacency” and “New Zealand government agencies and non-governmental organisations should be prepared to deal with instances of trafficking in accordance with international best practice.”
The Commission is also aware of some NGOs’ concerns that the absence of documented cases may reflect the limitations of current attempts to identify people trafficking. This highlights the pressing need to both develop an action plan and, at the same time, build the capability and capacity of:
Structural and political factors underpin both the supply and demand for trafficking, and the situation of individual trafficked people is also best understood within this broader context. Therefore the Commission endorses the consultation document’s incorporation of social and economic initiatives to prevent people trafficking, as outlined in paragraph 43.
The sexual exploitation of trafficked women and girls is rightly a major international concern. In addition, attention must be given to other forms of forced labour and exploitation including within those sectors already targeted by the Department of Labour such as horticulture and viticulture. The section of the discussion document on People Traffickers mentions the preventative role the private sector and NGOs can play, and the importance of promoting public awareness through information and media campaigns. Resources and training are needed for community groups, unions and employer organisations to take on such a role.
Paragraphs 38 and 43 mention the possible role of bilateral or multilateral initiatives. These would be in line with both the Protocol’s purpose of promoting cooperation among States Parties to prevent trafficking (Article 2) and Article 9(4) which states:
States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, specially women and children, vulnerable to trafficking, such as poverty, underdevelopment and equal opportunity
Guideline 11 sets out a range of options for cooperation and coordination between States and regions, stating:
Trafficking is a regional and global phenomenon that cannot always be dealt with effectively at the national level: a strengthened national response can often result in the operations of traffickers moving elsewhere. International, multilateral and bilateral cooperation can play an important role in combating trafficking activities. Such cooperation is particularly critical between countries involved in different stages of the trafficking cycle.
New Zealand already uses side agreements associated with trade deals to set out some transnational labour standards. Side agreements could be explored that monitored and reported on compliance with the human rights standards set out in the Palermo Protocol.
Guideline 5 from the UN High Commissioner for Human Rights’ report begins:
Although there is evidence to suggest that trafficking in persons is increasing in all regions of the world, few traffickers have been apprehended. More effective law enforcement will create a disincentive for traffickers and will therefore have a direct impact on demand.
It concludes that:
Law enforcement officials must also be sensitised to the paramount requirement of ensuring the safety of trafficked persons. This responsibility lies with the investigator and cannot be abrogated.
The nine suggested actions include specialised training in partnership with NGOs; the value of providing incentives for trafficked people to come forward to report traffickers; the development of proactive investigator procedures that avoid over-reliance on victim testimony; implementing measures to ensure that ‘rescue’ operations do not further harm the rights and dignity of trafficked persons; and establishing specialist anti-trafficking units to promote competence and professionalism.
A plan of action should investigate the resources required in order meet the obligations set out within the Palermo Protocol. Simply adding these complex responsibilities to current workloads of existing staff is unlikely to effective.
4. How should the private sector be involved in a plan of action?
As already suggested, an awareness campaign is required starting with high-risk industries, working with relevant employer and union bodies, preferably in partnership with relevant NGOs. Business New Zealand, Chambers of Commerce, Employer and Manufacturers Associations as well as their industry sector groups should be specifically informed about trafficking prevention. The Council of Trade Unions is the appropriate body to coordinate information sharing with unions including to cross-union groups that are focused on specific sectors or representing the interests of women or migrant workers.
One option to explore would be the development of a code of conduct, setting out monitoring or reporting mechanisms aimed at preventing direct or indirect involvement in trafficking. There may also be interest in more specific material focused on high-risk industries or particularly vulnerable groups of workers.
The discussion document suggestions largely cover off the issues identified within the Palermo Protocol. However the details contained within the UN High Commissioner for Human Rights’ Principles and Guidelines appear to place a stronger emphasis on the following two factors:
Whilst this may be implied within the discussion document the wording itself is limited to “the right to be informed of legal services” (paragraph 72) rather than the right to receive such legal assistance.
Article 1 of the Protocol itself includes making legal proceedings confidential. It would be important to clarify that the level of privacy outlined in paragraph 78 is in line with the Protocol and relevant guidelines.
6. What settlement measures could be included in a plan of action?
Once again the UN High Commissioner’s guidelines provide a list of suggested actions which should be incorporated into the plan of action. Whilst the safe and, where possible, voluntary return of trafficked persons to their home country is the preferred operation. However the guidelines also suggest that there needs to a comprehensive assessment of:
7. How should the NGO sector be involved in a plan of action?
The Palermo Convention and Protocol, and the UN High Commissioner for Human Rights’ principles and guidelines all include a strong focus on the role of NGOs. This is also an integral component of a human rights approach, particularly for those organisations working directly with trafficked persons or with groups and in sectors where there is a higher risk of exploitation through trafficking.
As already noted, the NGO sector is likely to require not only resourcing but also training on the specific elements of people trafficking and how they sit alongside other related but distinct issues (such as exploitation of migrant workers and those used for under age prostitution).
As paragraph 81 in the discussion document states, at the centre of such an assessment should be the human rights of a trafficked person. This incorporates their rights to dignity, equality and security.
The discussion document sets out a number of other factors that should be considered including family and other support networks, language and employment skills. It also notes that the Protocol requires the option of temporary or permanent settlement in the receiving State. Specially Article 7 states:
The following recommended principles and guidelines from UN High Commissioner for Human Rights are also relevant. They reinforce the need to assess the safety and security of both the trafficked person and their family. A trafficked child’s views are given due regard when assessing what option is in the child’s best interest, and adequate care arrangements must be put in place.
In situations where the safe return of the child to his or her family is not possible, or where such return would not be in the child’s best interests, establishing adequate care arrangements that respect the rights and dignity of the trafficked child.
. . . the views of the child being given due weight in accordance with his or her age and maturity
The Convention, Protocol, principles and guidelines all require sensitivity to the specific needs of women and children. This extends to assessments as to whether repatriation to the country of origin, settlement in New Zealand (temporarily or permanently) or other alternatives will best protect the human rights of a trafficked person.
The connection between trafficking and violations of human rights is too clear to be ignored. Therefore, people trafficking should not be considered as a separate or distinct ‘issue’ but, rather, understood within the broader context of human rights, particularly the rights of women and children. The Commission suggests that monitoring the action plan’s effectiveness would be improved by also measuring:
10. Do you have any further comments?
This submission has been about the development of a New Zealand plan of action to address people trafficking. There are very justified concerns internationally about trafficking of women and children for sexual exploitation. However, as already noted, people trafficking (as defined in the Palermo Convention) does not encompass all forms of sexual exploitation. One specific exclusion is when victims are not taken across international borders.
The Commission has supported framing the plan of action around the definitions in the Palermo Convention. In addition we have recommended that the plan of action provides links to material on avenues for addressing separate, but related, forms of exploitation.
It may also be useful to note the distinction that international human rights instruments make between sexual exploitation and prostitution per se. In that regard, the Commission supported prostitution law reform because of the explicit role it could play in supporting those vulnerable to sexual exploitation.
The Prostitution Reform Act which decriminalised prostitution was passed in June 2003. The Commission supported the decriminalisation of prostitution on the basis that it would create an environment that was both less hostile and more transparent to those victimised by the trafficking industry. In particular, the Commission took into account Article 6 of the Convention for the Elimination of All Forms of Discrimination Against Women, which requires States Parties to take efforts to reduce the exploitation of women in prostitution, but which does not prohibit prostitution per se.
The new law included specific provisions designed to prevent trafficking. The Act prohibits the granting of permits under the Immigration Act for persons providing commercial sex, and prohibits holders of temporary permits from providing commercial sex. In addition it specifically prohibits the use of persons under the age of 18 years in prostitution and section 16 of the Act makes it an offence to compel (via threat or any other means) a person to provide commercial sexual services, or earnings from prostitution.
[1] Report of the High Commissioner
for Human Rights to the Economic and Social Council: Recommended Principals and
Guidelines on Human
Rights and Human Trafficking E/2002/68/Add.1 Downloaded on
31 July 2008 from:
www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.2002.68.Add.1.En?Opendocument
[2] Address to the International
Coordinating Committee of National Institutions for the Promotion and Protection
of Human Rights, Geneva,
1999
[3] Downloaded from http://www.asiapacificforum.net/services/training/regional-workshops/trafficking
[4]
http://www.asiapacificforum.net/services/training/regional-workshops/trafficking
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZHRCSub/2008/2.html