Thomas Harré from the Legal Team at Slave Free Seas takes a look at recent case history surrounding human trafficking in New Zealand
Article by: Thomas Harré, from the Legal Team at Slave Free Seas
As far back as 1997, the government has been aware of the problems faced by foreign crew working on fishing vessels in New Zealand’s exclusive economic zone. The Udovenko was a Russian-owned vessel that was forfeited to the Crown. Litigation was initiated by crew members of that vessel who alleged non-payment of wages. The High Court found that the official wage books maintained by the officers of the vessel did not accurately represent the hours actually worked by the crew, but instead reflected the – significantly fewer – hours of work stated in the crew’s employment contracts (Udovenko v Karelrybflot HC Christchurch AD90/98 (24 May 1999)). Although the crew technically won the case, after the two years it took to go through the court system, the six remaining crew members that had not returned to Russia were awarded only $10,000 each (Karelrebflot v Udovenko [2000] 2 NZLR 24 (CA) (17 December 1999)).
In December, 2004, the Department of Labour conducted an investigation into the fishing industry that dealt with foreign charter vessels (FCVs). The report made a number of disturbing findings: underpayment of wages, physical and mental abuse, long working hours, withholding passports and fishermen’s books, no washing or laundry facilities and bad quality food – or no food at all when fishing was bad.
In September, 2005, crew members from the Korean-flagged Sky 75 jumped ship at the port of Nelson and laid a complaint with police alleging serious abuse at sea. They claimed they had been forced to eat rotten meat and vegetables, made to “shower” by standing on deck while waves came on board, were abused both physically and emotionally and were made to work long hours – for a wage of $200 per month, which was not paid to them. As a result of these complaints, in 2006 the Code of Practice for Foreign Fishing Crew: Regulatory Framework was introduced by the Department of Labour, with input from industry groups Seafic and the New Zealand Fishing Industry Guild, purporting to resolve all the issues relating to working conditions on board foreign vessels.
In August, 2010 the Oyang 70 sank, killing six crew members. The widows of the dead Indonesian crew members were entitled to compensation from ACC, but the employer did not make the application. Instead, a representative of the widows applied. Unfortunately, while the ACC payments were made, the widows have still not received the payments due to them from their husbands’ employer under the Minimum Wage Act 1983 and the Holidays Act 2003. In a letter to the Coroner, the widows complained that the New Zealand government had not given them any information relating either to how their husbands were killed, or when the pay they were owed would be forthcoming (R McKeown “Coroner’s Inquest into Oyang 70 Sinking” Newstalk ZB (online ed, 16 April 2012)).
These examples of abuses on FCVs prior to 2011 show that the government must have been aware of the problem. The courts have consistently found in favour of crew members who allege financial abuse, the police have been made aware of physical and sexual abuse, and the Department of Labour is conscious of labour abuses on board FCVs.
In addition to the problems on FCVs, there have been cases before tribunals where the facts have pointed to trafficking for forced labour. The following cases are useful for demonstrating the ongoing nature of the problem of forced labour in New Zealand and also showing that the legal system has an understanding of the parameters of forced labour.
In R v Decha-Iamsakun [1993] 1 NZLR 141 (CA) (6 August 1992) a Thai national was convicted under s 98(1) of the Crimes Act 1961 for attempting to sell a young Thai woman as a slave and was sentenced to five years’ imprisonment with a deportation order enforceable after the sentence had been served. On the facts, the offending suggests human trafficking. The defendant had persuaded the victim to accompany him to New Zealand on the basis that there was a job for her in Auckland. Upon reaching New Zealand, the defendant withheld the victims’ visa and passport, and the victim was made to work in a massage parlour, where the majority of her earnings were collected by the defendant. The defendant contacted an undercover police officer, and attempted to sell the woman for $7,000, saying “she [is yours] to do whatever [you] like with her.” He told the officer that he used the proceeds from selling women to bring more women from Thailand to New Zealand to sell.
In R v Rahimi CA4/02 (30 April 2002) it emerged that a crime syndicate was operating out of Auckland that was engaging in what appeared to be trafficking. Three members arrested were alleged to have illegally brought thousands of people into New Zealand and Australia over a five year period, some of whom were trafficked for the purposes of forced labour. It was alleged that the group sold forged New Zealand passports for up to $30,000. Those who could not afford to pay this were forced to work in criminal enterprises for the syndicate as part of a debt bondage situation. Charges of fraudulent misuse of documents were laid, and the defendants plead guilty. Unfortunately the court did not mention the issue of trafficking.
#pb# In Elliott v Kirk AT17/01 (19 February 2001) the respondents, Mrs Sopana Kirk and Sewing Together Ltd, were alleged to have breached provisions of the Minimum Wage Act 1983 and the Holidays Act 1991. Again, the facts demonstrated the existence of human trafficking. The respondents brought women to New Zealand from Thailand under false pretences, withheld their passports, and operated a debt-bondage style scheme in order to keep their employees under control.
The most thorough recent judicial consideration of a similar case with transnational elements was R v Chechelnitski CA160/04 (1 September 2004). The defendant smuggled a number of Ukrainian nationals into New Zealand using false Israeli passports. It was noted by the court on appeal against sentence that in cases such as people trafficking and smuggling, the key factor in determining a sentence must be deterrence. The court held that a monetary penalty would not normally be appropriate, as traffickers would simply build that fee into the costs of running a trafficking organisation. This defendant was not the organiser of the operation, but played a role akin to a drug courier, and was found guilty under the migrant smuggling provision in s 98C(1) of the Crimes Act 1961.
R v Setiadi [2006] NZHC 619 (1 June 2006) resulted from a Department of Labour investigation into illegal migrant labour abuse schemes in the Hawkes Bay area. The defendant had acted as the New Zealand contact for an Indonesian organisation that brought Indonesian labourers into New Zealand on false passports to work as labourers. Each victim paid a large sum of money to the organisation and was told that they could legally work in New Zealand. Upon arrival they were escorted to orchards by the defendant and were housed in substandard accommodation. Although the defendant was charged with immigration and migrant smuggling offences under the Immigration Act 1987 and the Crimes Act 1961, the facts also appear to support a charge of human trafficking, and evidence led by the prosecution clearly supported this claim. The case report quotes victim statements showing that the victims were economically vulnerable, paid a relatively large sum to an agent, were deceived as to the nature of the work in New Zealand, and were further exploited upon arrival.
R v Thu Huynh and Ut Danh DC Napier CRI-2007-020-1460 (12 September 2007) stemmed from the same investigation, although relating to a different operation. Vietnamese fishermen who had jumped ship to escape abusive working conditions were enticed by the defendants to work for the company they represented. The directors of the company were prosecuted for immigration offences. The Court of Appeal found that the directors used fictitious sub-contractors to employ the illegal workers so as to disguise the use of their labour and distance themselves from the scheme (Elliott v R [2010] NZCA 611 (14 December 2010)). The sentencing notes of Judge Adeane in this matter reveal a disconcerting disregard for the apparent seriousness of the offending. Judge Adeane took the view that the men were simply filling a niche in the market for cheap labour.
It can be seen from the number of these cases that the authorities have some experience in investigating and prosecuting forced labour cases. While the evidence available makes it difficult to support a claim that there is intentional understating of the problem, it seems clear that authorities are choosing to prosecute offenders under regulatory offences, as opposed to the more serious offence of human trafficking under s 98D of the Crimes Act 1961. As the legal requirements for taking such cases are highly analogous to those required for the offence of human trafficking, this apparent leniency in prosecution is concerning.
As far back as 1997, the government has been aware of the problems faced by foreign crew working on fishing vessels in New Zealand’s exclusive economic zone. The Udovenko was a Russian-owned vessel that was forfeited to the Crown. Litigation was initiated by crew members of that vessel who alleged non-payment of wages. The High Court found that the official wage books maintained by the officers of the vessel did not accurately represent the hours actually worked by the crew, but instead reflected the – significantly fewer – hours of work stated in the crew’s employment contracts (Udovenko v Karelrybflot HC Christchurch AD90/98 (24 May 1999)). Although the crew technically won the case, after the two years it took to go through the court system, the six remaining crew members that had not returned to Russia were awarded only $10,000 each (Karelrebflot v Udovenko [2000] 2 NZLR 24 (CA) (17 December 1999)).
In December, 2004, the Department of Labour conducted an investigation into the fishing industry that dealt with foreign charter vessels (FCVs). The report made a number of disturbing findings: underpayment of wages, physical and mental abuse, long working hours, withholding passports and fishermen’s books, no washing or laundry facilities and bad quality food – or no food at all when fishing was bad.
In September, 2005, crew members from the Korean-flagged Sky 75 jumped ship at the port of Nelson and laid a complaint with police alleging serious abuse at sea. They claimed they had been forced to eat rotten meat and vegetables, made to “shower” by standing on deck while waves came on board, were abused both physically and emotionally and were made to work long hours – for a wage of $200 per month, which was not paid to them. As a result of these complaints, in 2006 the Code of Practice for Foreign Fishing Crew: Regulatory Framework was introduced by the Department of Labour, with input from industry groups Seafic and the New Zealand Fishing Industry Guild, purporting to resolve all the issues relating to working conditions on board foreign vessels.
In August, 2010 the Oyang 70 sank, killing six crew members. The widows of the dead Indonesian crew members were entitled to compensation from ACC, but the employer did not make the application. Instead, a representative of the widows applied. Unfortunately, while the ACC payments were made, the widows have still not received the payments due to them from their husbands’ employer under the Minimum Wage Act 1983 and the Holidays Act 2003. In a letter to the Coroner, the widows complained that the New Zealand government had not given them any information relating either to how their husbands were killed, or when the pay they were owed would be forthcoming (R McKeown “Coroner’s Inquest into Oyang 70 Sinking” Newstalk ZB (online ed, 16 April 2012)).
These examples of abuses on FCVs prior to 2011 show that the government must have been aware of the problem. The courts have consistently found in favour of crew members who allege financial abuse, the police have been made aware of physical and sexual abuse, and the Department of Labour is conscious of labour abuses on board FCVs.
In addition to the problems on FCVs, there have been cases before tribunals where the facts have pointed to trafficking for forced labour. The following cases are useful for demonstrating the ongoing nature of the problem of forced labour in New Zealand and also showing that the legal system has an understanding of the parameters of forced labour.
In R v Rahimi CA4/02 (30 April 2002) it emerged that a crime syndicate was operating out of Auckland that was engaging in what appeared to be trafficking. Three members arrested were alleged to have illegally brought thousands of people into New Zealand and Australia over a five year period, some of whom were trafficked for the purposes of forced labour. It was alleged that the group sold forged New Zealand passports for up to $30,000. Those who could not afford to pay this were forced to work in criminal enterprises for the syndicate as part of a debt bondage situation. Charges of fraudulent misuse of documents were laid, and the defendants plead guilty. Unfortunately the court did not mention the issue of trafficking.
#pb# In Elliott v Kirk AT17/01 (19 February 2001) the respondents, Mrs Sopana Kirk and Sewing Together Ltd, were alleged to have breached provisions of the Minimum Wage Act 1983 and the Holidays Act 1991. Again, the facts demonstrated the existence of human trafficking. The respondents brought women to New Zealand from Thailand under false pretences, withheld their passports, and operated a debt-bondage style scheme in order to keep their employees under control.
The most thorough recent judicial consideration of a similar case with transnational elements was R v Chechelnitski CA160/04 (1 September 2004). The defendant smuggled a number of Ukrainian nationals into New Zealand using false Israeli passports. It was noted by the court on appeal against sentence that in cases such as people trafficking and smuggling, the key factor in determining a sentence must be deterrence. The court held that a monetary penalty would not normally be appropriate, as traffickers would simply build that fee into the costs of running a trafficking organisation. This defendant was not the organiser of the operation, but played a role akin to a drug courier, and was found guilty under the migrant smuggling provision in s 98C(1) of the Crimes Act 1961.
R v Setiadi [2006] NZHC 619 (1 June 2006) resulted from a Department of Labour investigation into illegal migrant labour abuse schemes in the Hawkes Bay area. The defendant had acted as the New Zealand contact for an Indonesian organisation that brought Indonesian labourers into New Zealand on false passports to work as labourers. Each victim paid a large sum of money to the organisation and was told that they could legally work in New Zealand. Upon arrival they were escorted to orchards by the defendant and were housed in substandard accommodation. Although the defendant was charged with immigration and migrant smuggling offences under the Immigration Act 1987 and the Crimes Act 1961, the facts also appear to support a charge of human trafficking, and evidence led by the prosecution clearly supported this claim. The case report quotes victim statements showing that the victims were economically vulnerable, paid a relatively large sum to an agent, were deceived as to the nature of the work in New Zealand, and were further exploited upon arrival.
R v Thu Huynh and Ut Danh DC Napier CRI-2007-020-1460 (12 September 2007) stemmed from the same investigation, although relating to a different operation. Vietnamese fishermen who had jumped ship to escape abusive working conditions were enticed by the defendants to work for the company they represented. The directors of the company were prosecuted for immigration offences. The Court of Appeal found that the directors used fictitious sub-contractors to employ the illegal workers so as to disguise the use of their labour and distance themselves from the scheme (Elliott v R [2010] NZCA 611 (14 December 2010)). The sentencing notes of Judge Adeane in this matter reveal a disconcerting disregard for the apparent seriousness of the offending. Judge Adeane took the view that the men were simply filling a niche in the market for cheap labour.
It can be seen from the number of these cases that the authorities have some experience in investigating and prosecuting forced labour cases. While the evidence available makes it difficult to support a claim that there is intentional understating of the problem, it seems clear that authorities are choosing to prosecute offenders under regulatory offences, as opposed to the more serious offence of human trafficking under s 98D of the Crimes Act 1961. As the legal requirements for taking such cases are highly analogous to those required for the offence of human trafficking, this apparent leniency in prosecution is concerning.
