Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information provided by the Government in reply to its earlier comments. It also notes 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 responses to these comments.

Articles 1 (paragraph 1), and 2 (paragraphs 1 and 2(c)), of the Convention. 1. Privatization of prisons and prison labour. The Committee notes the indications of the Government in its report that the Corrections (Contract Management of Prisons) Amendment Bill 2009 has been introduced to allow private prisons; that under this legislation, private companies will have the opportunity to tender on a competitive basis to manage prisons; and that this law change will apply to prisons already in operation as well as new prisons. The Committee notes that in its response to the NZCTU comments, the Government indicates that the Bill contains provisions to prevent prison labour in contract-managed prisons from being used to benefit private sector commercial operations. It refers in this regard to a contractual requirement for companies managing prisons to comply with the relevant legislation, stating that this will ensure that prisoners in privately managed prisons will only be employed as they would in a public prison. The Government further indicates that standards and requirements placed on contract-managed prisons will be strictly enforced. It refers in this connection to provisions for the assignment of a prison monitor to each contract-managed prison to monitor contractual compliance, to privately managed prisons being subject to extensive reporting requirements and scrutiny by corrections inspectors, and to the fact the Chief Executive of Corrections will remain responsible for all prisoners. The Committee notes that section 66 of the Corrections Act 2004 provides, inter alia, that prisoners in any prison may be directed by the prison manager to perform work maintaining the prison.

The Committee refers in this regard to paragraph 106 of its 2007 General Survey on the eradication of forced labour, in which it explained that the prohibition on convicted prisoners being hired to or placed at the disposal of private parties is not limited to work outside penitentiary establishments but applies equally to workshops which may be operated by private undertakings inside prisons, as well as to work organized by privately run prisons.

The Committee asks the Government to take the necessary measures to ensure that both in law and in practice any new system of privately managed prisons will not involve the exaction of forced or compulsory labour from any prisoner, including any work or services directed by prison managers, except with the prisoner’s voluntary consent, given free from the menace of any penalty, and under conditions of employment approximating those of free workers (see paragraphs 59–60 and 114–120 of the 2007 General Survey referred to above). The Committee asks the Government to provide, in its next report, information on the measures taken or envisaged in this regard, as well as a copy of the Corrections (Contract Management of Prisons) Amendment Bill 2009, once it has been finally adopted and enacted into law.

2. Private use of labour in state prisons. The Committee notes the detailed information supplied by the Government in its report concerning its policy on prisoner employment under the Prisoner Employment Strategy. Corrections Inmate Employment (CIE), a group within the Department of Corrections, manages prisoner work programmes in all prisons, aiming to provide prisoners who volunteer general work skills and practical trade skills. As one component of this activity, CIE contracts with private business at market rates, and prisoners remain in the CIE work programme under the supervision and management of the Department of Corrections. The Government states that, with the exception of the Release to Work programme, the provision of prisoner work opportunities by the Department does not constitute a formal employment relationship. The Government reiterates, however, that the incentive pay framework has been the subject of an ongoing review, and that it will provide information about this in its next report. The Committee notes from the Internet site of the Department of Corrections, the Prisoner Skills and Employment Strategy 2009–12, defined as “a strategy to raise prisoner skill levels and provide prisoners with employment experience”. To achieve this, the Department will, inter alia, increase employment opportunities, in part, by “increasing partnerships with the private sector”. The strategy document refers to examples of current partnerships, which include renovation work for Housing New Zealand Corporation, photocopier assembly and repair work for Canon and light engineering work for a number of clients in the South Island. It indicates that the Department regularly engages with private companies about opportunities for more meaningful work and training for prisoners, and that under the new strategy it “will be looking to increase the number of contracts with private companies”.

The Committee recalls that, for the private employment of prison labour to comply with the Convention, it must be voluntary and depend on the formal consent of the prisoner concerned. However, the requirement of such consent is not in itself sufficient to eliminate the possibility that it is given under the menace of loss of a right or advantage. The Committee has considered that conditions approximating a free labour relationship are the most reliable indicator of the voluntariness of prison labour (2007 General Survey, paragraph 60). The Committee requests the Government to provide in its next report information indicating whether, in what ways and to what extent the new prisoner employment strategy is being conceived and implemented in such a way as to grant conditions approximating free employment to prisoners who work for the Department’s private sector partners under that strategy.

3. Sentence of community work. In its previous comments the Committee has noted that under the Sentencing Act 2002, a court may sentence an offender to community work, and that such work may be undertaken at, or for, private agencies or institutions or other private entities. The Committee has also noted that the penalty of community work may be imposed without the consent of the offender, referring to Volume 3 of the Community Probation Service (CPS) Operations Manual, which stipulates: “Community work is a compulsory sentence, i.e., it is imposed without the offender’s consent”.

The Committee notes the indications of the Government in its report that it considers the performance of community work at placements with private organizations to be voluntary, and that it would nevertheless continue to ensure that convicted persons performing community work are not placed at the disposal of private agencies without their consent. While taking due note of this indication, the Committee reiterates its hope that measures will be taken to ensure that, both in law and in practice, 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 (paragraph 1), 2 (paragraph 1), and 25. Trafficking in persons. The Committee notes with interest the information supplied by the Government concerning the measures being actively taken in relation to the problem of trafficking in persons, and in particular its Plan of Action to Prevent People Trafficking, which was approved by the Government in July of 2009. The Plan of Action’s key items include training and awareness raising for government enforcement officers and targeted non-governmental organizations, development of a policy for offering immigration status options to victims of trafficking, and providing support to victims who assist with criminal justice proceedings against their traffickers. The Committee notes the Government’s stated commitment to a comprehensive strategy, pursuant to which an Inter-Agency Working Group will oversee and ensure the implementation of the Plan of Action. The Committee has also noted that the Crimes Act, 1961 was amended in 2002 to include anti-trafficking provisions (section 98), and that trafficking in persons carries penalties of up to 20 years’ imprisonment. Noting also that New Zealand has not had any confirmed cases of trafficking in persons, the Committee hopes that the Government will provide, in its next report, information on the application in practice of the Plan of Action, as well as the relevant provisions of the Crimes Act, as amended, including information on legal proceedings in any cases brought against trafficking offenders and on the penalties imposed, if and when such information becomes available.