Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee has noted the information provided by the Government in reply to its earlier comments. It has also noted the comments made by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand on the application of the Convention, communicated by the Government, as well as comments made by the International Confederation of Free Trade Unions (ICFTU) dated 6 May 2003.

1. Sentence of community work. The Committee has noted that the Sentencing Act, 2002, which came into force on 30 June 2002, introduced a new sentence of community work, which replaced the sentences of periodic detention and community service. The Committee notes that a sentence of community work may be imposed by court if the offender is convicted of an offence punishable by imprisonment; or if the prisoner is convicted of an offence and the enactment expressly provides that a community-based sentence may be imposed on conviction. The sentence may be for not less than 40 or more than 400 days as the court thinks fit (section 55).

The Committee also notes that the court is entitled to impose a community-based sentence or fine, or both, only if the court does not regard a fine as being the appropriate sentence, or because the court does not consider that the offender has the financial capacity to pay (section 15).

The Committee notes that the Act provides guidance on the use of the sentence of community work (section 56), concurrent and cumulative sentences of community work (section 57) and length of sentence of community work (section 58). In addition, the Committee notes that it is a probation officer who must determine placement of the offender for community work (section 61).

The committee notes that the Act defines the authorized work for a person sentenced to community work (section 63). The types of work are:

(a)  at or for any hospital or church or at or for any charitable, educational, cultural, or recreational institution or organization (including a marae); or

(b)  at or for any other institution or organization for old, infirm, or disabled persons, or at home of any old, infirm, or disabled person; or

(c)  on any land of which the Crown or any public body is the owner or lessee or occupier, or any land that is administered by the Crown or any public body.

Further, section 63(2) prohibits the offender, when performing such services or work, from taking the place of any person who would otherwise have been employed to do that work in the ordinary course of that person’s paid employment.

The Committee notes that the days and times at which an offender performs work must be fixed by agreement between a probation officer and either the community work centre or the agency (section 64) and that the offender is subject to the control, direction and supervision of a probation officer while the offender is doing work at a community work centre or an agency (section 65).

The Committee wishes to recall in this connection that Article 2(2)(c) of the Convention expressly prohibits that convicts be hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory work of convicted persons does not extend to their work for private entities, even if they are not for profit and even if they are under public supervision and control. However, such community work sentences could be imposed if the offender either requests to do such community work, or gives free and voluntary consent to so perform the work. The Committee therefore requests the Government to indicate, in its next report, whether measures are taken or envisaged to ensure that offenders performing community work are not hired to or placed at the disposal of private individuals, companies or associations without their consent and, if so, how the voluntary consent of the persons concerned to work for a private user of community work is guaranteed.

2. Prison labour in privatized prisons. Private use of labour in state prisons. In its previous comments, the Committee noted that the Auckland Central Remand Prison (ACRP) was administered by Australasian Correction Management, a private concern. The Committee notes with interest the Government’s statement in the report that it is now government policy that the private prison be allowed to continue with the management of the ACRP until the end of its contract and then revert back to government control by July 2005. The Committee is looking forward to receiving from the Government further information on this issue.

The Committee also notes with interest the Government’s statement in the report that inmate participation in inmate employment, excepting self-sufficiency roles, is voluntary. The Government indicates that Corrections Inmate Employment is currently developing the inmate induction package for all inmates undertaking employment, which will include, inter alia, a consent document to be signed by inmates to acknowledge that they have voluntarily accepted to participate in employment. The Committee would appreciate it if the Government would provide a copy of this document, as soon as the induction package is completed.

Referring to its observation of satisfaction under the Convention, the Committee has noted the Government’s indication in the report that existing contracts with private sector industries have been reviewed, and that the Department of Corrections no longer participates in any contractual arrangements where private sector management is part of a contract. It would be grateful if the Government would indicate, in its next report, whether the Department’s inmate employment policy (which refers, among other categories of inmate employment, to commercial industries run in cooperation with the private sector) will also be revised accordingly and, if so, supply a copy of a revised text.

3. Trafficking in persons. The Committee has taken note of the information supplied by the Government concerning measures taken to prevent, suppress and punish trafficking in persons for the purpose of exploitation. It notes, in particular, the information on the legislative amendments made in 2002 which, according to the Government, were considered necessary because the New Zealand experience had been that the exploitation of people working unlawfully, whether trafficked or not, often fell short of the more serious offences of slavery or debt bondage. Noting also that, in the communication of 6 May 2003 referred to above, the ICFTU alleged that there were reports of bonded labour involving migrant workers in the commercial sex industry, the Committee requests the Government to refer to these allegations and to provide, in its next report, information on any legal proceedings which have been instituted as a consequence of the application of the legislative amendments referred to above and on the penalties imposed, as required in the report form under Article 25 of the Convention.