Consultation on a Plan of Action to Prevent People Trafficking
3 Issues to consider in the development of a plan of action
Discussion document
The discussion document provides background information on the definition of people trafficking, the difference between trafficking and smuggling, what is known about people trafficking in New Zealand and New Zealand's international obligations in this area. The document also proposes objectives for a plan of action and indicates broad roles for the Government and the non-government sector in addressing people trafficking.
Submitters were asked what other factors should be considered in the development of a plan of action to prevent people trafficking.
Submitter comments
Definitions of people trafficking
Many submitters comment on the definition of people trafficking used in the discussion document and in New Zealand law.
United Nations definition should be adopted
Some submitters express the view that New Zealand should adopt the broader United Nations definition of people trafficking, which covers internal trafficking of people as well as cross-border trafficking. While acknowledging that other legislation covers exploitation within New Zealand, submitters express concern that a narrower transnational definition could restrict the way in which people trafficking is addressed and potentially leave a legislative gap with respect to people who are exploited after they are smuggled into New Zealand.
This oversimplification has implications for the way the issue is approached; it considerably restricts the scope of what is considered people trafficking and consequently the type of solutions that are proposed. [World Vision New Zealand]
Experience in other Participating States particularly Sweden showed that when trafficking legislation is split up into several sections, prosecutions will tend to go for the "easiest" provisions and hence punishment for traffickers might be less severe. [Intergovernmental Consultations on Migration, Asylum and Refugees]
Richard Towle from the United Nations High Commissioner for Refugees (UNHCR) notes that people trafficking is a process, rather than a single event, and is underpinned by exploitation regardless of whether an international border is crossed.
An important aspect of this definition is an understanding of trafficking as a process comprising a number of interrelated actions rather than a single act at a given point in time. Once initial control is secured, victims are generally moved to a place where there is a market for their services, often where they lack language skills and other basic knowledge that would enable them to seek help. While these actions can all take place within one country's borders, they can also take place across borders with the recruitment taking place in one country and the act of receiving the victim and the exploitation taking place in another. Whether or not an international border is crossed, the intention to exploit the individual concerned underpins the entire process. [Richard Towle, UNHCR]
One submitter comments that definitions should be aligned internationally to enable comparative statistics to be prepared.
Difficulties in distinguishing people trafficking from people smuggling
Some submitters comment that it is difficult to draw a clear distinction between people trafficking and people smuggling. They note that what may start as a voluntary activity of being smuggled to another country may result in exploitation, or people trafficking, if the person is forced into certain work or activity along the way or after their arrival.
While one may have originally been involved in a smuggling event, their continuing illegality, unfamiliarity with NZ laws, language and other barriers perpetuate their vulnerability to being trafficked within NZ in a process that is delinked from the initial smuggling event. [Lance Bonneau]
The classic example is where a young woman agrees to fly to New Zealand at someone else's expense expecting to work as a dancer, only to be forced into prostitution once she arrives. In that circumstance, slavery still occurs, but doesn't take place until after the woman gets here. [Andre Anderson]
One submitter comments that the distinction between people trafficking and people smuggling has become gendered, with women and girls seen as vulnerable and trafficked while men exercise a degree of choice and are smuggled.
Trafficking wider than the sex industry
A number of submitters point out that people trafficking is wider than the sex industry. Some submitters comment on the need to ensure that the potential for trafficking in other industries is not overlooked and that the plan of action is drafted with reference to all forms of exploitation. Examples of other areas of concern provided by submitters are domestic and commercial labour, construction, horticulture and agriculture.
Whilst the issue of the trafficking of women for the purposes of prostitution properly concerns many people with a long track record in their area, the potential for trafficking across far broader industrial sectors should not be underestimated. [Nigel Haworth]
The focus of anti-trafficking policy should be on preventing exploitation and denial of human rights irrespective of the occupation (agriculture, sex work, factory work, domestic work). [Family Planning and Family Planning International]
Other submitters are concerned that people trafficking is not conflated with the sex industry. They comment that not all sex workers are victimised and that no link has been found between the sex industry and human trafficking.
While many people believe that prostitution is inherently exploitative, it should be acknowledged that demand for paid sex services and demand for trafficking are not the same. Demand for prostitution in New Zealand doesn't mean there is demand for trafficking. [Individual Submitter B]
It is our belief that exploitation is not inherently linked with sex work, and that any plan of action should focus on prevention from exploitation, not on prevention of the right of sex workers and their clients to engage in legal activities. [New Zealand Prostitutes Collective]
Other definition issues
The Human Rights Commission comments that while sexual exploitation is treated seriously within New Zealand, underage prostitution is not considered "trafficking" as it is in the United States. It suggests that this be made clear in the plan of action with links to work on underage prostitution and other relevant work set out in an Appendix.
One submitter notes that the discussion document fails to define key terms such as 'slavery', 'forced labour' and 'servitude'. They also note that terms such as 'exploitation of the prostitution of others' and 'sexual exploitation' are vague and open to interpretation. Another submitter comments that 'domestic servitude' should be specifically mentioned. An attendee at a consultation meeting suggested that there be specific definitions for 'coercion', 'deception' and 'exploitation'.
Some submitters suggest taking a broader view of what exploitation means for the purpose of the plan of action:
- The Intergovernmental Consultations on Migration, Asylum
and Refugees (IGC) notes that increased detection of people trafficking in
Europe stems in part from new definitions of what labour exploitation means. It
gives the example of Belgium:
Rather than focusing on conditions that are comparable to slavery, which is a term that is historically and politically charged, labour or economic exploitation, in the Belgian context, extends to work conditions that violate standards of human dignity. These include situations in which employers attempt to maximise their profits by neglecting safe work conditions, avoiding contributions to social security and inappropriate payments. [IGC]
- The New Zealand Council of Trade Unions comments on the definition of smuggling, noting that evidence of patterns of people entering New Zealand under false pretences have a dimension of smuggling to them but may not fit the formal definition.
- Some submitters suggest that consideration be given to dowry, mail order brides and other cultural practices within migrant families.
Trafficking in New Zealand
Many submitters comment on the discussion document's statements regarding the lack of any evidence of people trafficking in New Zealand. Most take issue with these statements, noting that:
- lack of evidence does not mean trafficking is not occurring in New Zealand
- the presence of trafficking in other countries, including Australia, means that it is unlikely that New Zealand is exempt
- the Government should be open to the possibility that it is occurring
- even if it is not yet a major issue, it may well become so.
A number of submitters point to research, reports or anecdotal evidence that suggests that people trafficking may be present in New Zealand. These include:
- United States Trafficking in Persons reports that identify New Zealand as a source country for internal trafficking of women for commercial sexual exploitation and as a destination country for women trafficked from a number of Asian countries for commercial sexual exploitation
- the outcomes of the Human Rights Commission's "Pink Sticker" campaign, in which a number of Thai women were assisted to leave sex trafficking-type situations[2]
- research undertaken by Susan Coppedge, Melissa Farley, Julie Bindel and Liz Kelly[3]
- media reports of cases that may meet the definition of trafficking.
Another submitter, on the other hand, suggests that New Zealand is unlikely to be an attractive destination for people traffickers:
New Zealand would appear to be an unappealing destination for traffickers in several ways. Unlike most states, New Zealand has virtually full control of our borders, and is regularly rated by Transparency International as one of the three least corrupt countries in the world. The Prostitution Reform Act has reportedly improved working conditions in the sex trade by sex workers' own accounts (notwithstanding the protestations of the US State Department). It is also unlikely to be the most economically rewarding destination. [Individual Submitter B]
Some submitters comment on the reasons why people trafficking may not have been detected in New Zealand. These include a lack of a specific focus on people trafficking, a lack of training and knowledge to assist identification, and the unwillingness of victims to come forward due to fear of the repercussions for them or their families.
Victims of trafficking are known to be extremely wary of coming forward to ask for help; they are alone in a strange country where they may have broken the immigration laws, their experience of police in their own countries has often been bad and their 'minders' are said to be capable of great brutality. The fact that no victims have recently come forward, either spontaneously or during police raids, cannot be taken as proof that there are no such victims. [Olaf Simpson, Frances Ross, Barbara Frame, Rosemary Haworth, Isobel Simpson, Shona Dunlop MacTavish, Stephen Baird, Margaret Baird, Peter Short]
Overseas experience would suggest that the New Zealand law enforcement community are not detecting such offending because either they think it does not exist or do not believe it is a serious enough problem to proactively detect. In addition law enforcement officers are not trained to look for it or do not ask the necessary questions and/or do not provide the necessary reassurance and protection to potential victims. [Individual Submitter A]
Some submitters note that increased detection of people trafficking in Europe, Australia and the United Kingdom has resulted from increased anti-trafficking activity in these countries. One submitter comments that while they have no evidence of people trafficking in New Zealand, they do have considerable experience of migrant exploitation.
Focus of a plan of action
Comments from submitters suggest that they are generally supportive of the development of a plan of action to address people trafficking. A number of submitters explicitly state they support taking a proactive approach to this issue. One attendee at a consultation meeting, on the other hand, questioned the need for a plan of action given the lack of verified evidence of trafficking activity in New Zealand to date.
Some submitters question the exclusive focus on people trafficking, which they view as the extreme end of a spectrum of exploitation of vulnerable migrant workers. They comment that there is not a clear distinction between people trafficking, people smuggling and exploitation of migrants, and that a comprehensive policy is required to address the full range of possible abuses.
The CTU believes it is not practical to address people trafficking in isolation from other forms of exploitation of migrants. While people trafficking might be an extreme form of exploitation, it is the result of similar behaviour (by both "perpetrators" and "victims") as other exploitation of migrants. And there are similar problems in combating that exploitation because of migrant vulnerability. [New Zealand Council of Trade Unions]
Over recent years NZNO has become increasingly concerned about the exploitation of migrant workers. Unscrupulous recruitment agents, unreasonable bonding, debt imposition, hotbedding, deliberate misinformation which ensures skilled migrants are tied to inappropriate low-waged employment and unnecessary training, and passport retention are not uncommon experiences amongst migrant nurses. These 'lesser' forms of immigration abuse are currently not being addressed and NZNO suggests that there is little point in using scarce resources to develop a Plan of Action to counter the extreme of potential human trafficking while ignoring actual and persistent "everyday exploitation" of migrants. [New Zealand Nurses Organisation]
The Human Rights Commission also comments on the implications of the difficulties in distinguishing between people trafficking, people smuggling and other forms of exploitation. The Commission suggests that agencies need to be alert to possible links between trafficking and exploitation and be aware of ways of addressing both people trafficking and other forms of exploitation.
Another submitter comments that it is necessary to consider people trafficking alongside related issues of organised crime, prostitution of children and young people, vice, child pornography, the internet and sex offenders.
To date the connection between commercial sexual exploitation and organized crime has been largely overlooked by the New Zealand law enforcement community. This is in spite of the fact that other law enforcement agencies around the world are scrambling to keep up with the growing international links between criminal syndicates involved in human trafficking, illegal sex tourism, forced prostitution and child pornography. Organized crime will soon earn most of its income around the world, not from the sale of controlled drugs, but from the commercial sexual exploitation of women and children, which unlike drugs, can be resold many times over before the "product" loses its economic value. [Individual Submitter A]
The submitter notes that there is an opportunity for New Zealand, particularly law enforcement agencies, to be more proactive on these issues.
Other submitter comments are that:
- the scale of New Zealand's response to people trafficking should reflect the size of the problem
- initiatives should be targeted to areas where non-compliance with employment legislation is most likely to occur.
A human rights approach
A number of submitters comment that a plan of action on people trafficking should be based on a human rights approach, with the protection and support of human rights central to all elements of the plan.
People trafficking is both the cause and consequence of violations of human rights, and we submit that the protection of human rights should be at the centre of the Plan of Action and all measures proposed to achieve the key objectives. [World Vision New Zealand]
Amnesty International believes that, above all other considerations, the purpose of a Plan of Action should be to prevent grievous human rights abuses being perpetrated on vulnerable individuals, often including children, and to alleviate the subsequent suffering, both physical and psychological, that most victims will experience. [Amnesty International Aotearoa New Zealand]
The Human Rights Commission expands on what is meant by a human rights approach. It notes that a human rights approach requires:
- "linking of decision making at every level to human rights standards set out in the relevant human rights Covenants and Conventions
- identification of all relevant human rights involved and a balancing of rights, where necessary, prioritising those of the most vulnerable people, to maximise respect for all rights and rights-holders
- an emphasis on the participation of individuals and groups in decision-making that affects them
- non-discrimination among individuals and groups through equal enjoyment of rights and obligations by all
- empowerment of individuals and groups by allowing them to use rights as a leverage for action and to legitimise their voice in decision-making and
- accountability for actions and decisions, which allows individuals and groups to complain about decisions that affect them adversely."
With regard to international agreements, the Commission suggests making explicit reference to International Labour Organization (ILO) conventions relating to forced labour given that 'forced labour or services' are specified in the United Nations Trafficking Protocol. Key conventions identified are ILO 29 Forced Labour Convention and ILO 182 Worst Form of Child Labour, both of which have been ratified by New Zealand. It comments that the plan of action should also be informed by the United Nations High Commissioner for Refugees' 2002 Recommended Principles and Guidelines on Human Rights and Human Trafficking.
Other submitters consider that there should be reference to relevant international agreements throughout the document and that the plan of action should recognise the United Nations Platform for Action, Chapter D Violence Against Women, which mentions trafficking in women and forced prostitution.
Some submitters express concern that New Zealand has not ratified two international treaties concerning migrant workers: ILO 143, which focuses on irregular migration including smuggling and trafficking, and the United Nations Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. The Human Rights Commission notes that "the UN Convention extends considerably the legal framework for migration, the treatment of migrants and the prevention of exploitation and irregular migration."
With regard to identifying, balancing and prioritising rights, the Human Rights Commission comments on the need to ensure that trafficked persons are not re-traumatised by anti-trafficking measures, that increased border security and other measures do not impinge on the right to freedom of movement or to seek asylum, and that suspected people traffickers have the right to due process.
The Commission notes that participation and empowerment of trafficked persons in decision-making will be very difficult to achieve "unless the plan is successful in guaranteeing them the protection, confidentiality and support necessary so they feel secure enough to come forward and participate". It notes that accountability requires timely and transparent processes, access to legal assistance and rights of appeal. Trafficked persons need to be identified as soon as possible so they are not classified as illegal migrants.
A number of other submitters comment that people trafficking is first and foremost a crime and should not be seen as an immigration issue. Submitters comment that victims of people trafficking need to be supported and protected and that returning them to their home country is not always the best option. These comments are discussed further in section 5.
Women and children are especially vulnerable
A number of submitters note that women and children are especially vulnerable to people trafficking, and comment that special attention needs to be given to gender, and to targeted assistance for, and the best interests of, children.
We would like to see greater attention to gender. A gender analysis of all factors, including prevention, push factors, protection, impact, settlement and support services needs to be central to this work. For example, women and children are especially vulnerable to trafficking and this needs to be outlined and addressed. [Family Planning and Family Planning International]
Children are particularly vulnerable to being trafficked and exploited, and we submit that the Plan of Action should include a focus on the rights and needs of children at all stages of the process. [World Vision New Zealand]
Child trafficking victims should be distinguished from adult victims to ensure children are given special consideration in terms of protection and assistance. [Rebecca Miller]
Amnesty International Aotearoa New Zealand notes that trafficked women and children are often subjected to many forms of violence before, during and after the trafficking including "domestic violence, child abuse and child sexual abuse, rape and sexual violence, forced marriage, forced prostitution, sexual exploitation and sexual harassment." Some submitters consider that anti-trafficking initiatives should be integrated with other strategies to prevent violence against women.
Proposals regarding research, prevention, prosecution, training of professionals and support and protection for trafficked women and girls needs to be planned and delivered as part of an integrated approach to all forms of violence against women in New Zealand. [Amnesty International Aotearoa New Zealand]
Victims may be refugees and require access to asylum procedures
Some submitters comment that the treatment of some victims of people trafficking may amount to persecution, as defined in the United Nations 1951 Convention Relating to the Status of Refugees. They consider that the plan of action should ensure that such victims are able to access asylum procedures, consistent with UNHCR guidelines. These comments are discussed further in section 5.
The Plan of Action should explicitly acknowledge the possibility that victims of trafficking may have claims to international protection under the Refugee Convention, and should ensure access to asylum procedures for victims of trafficking. [Human Rights Foundation]
Links with regional and global efforts to prevent trafficking
A number of submitters emphasise the transnational aspect of people trafficking and comment on the need for an international focus when developing the plan of action. Richard Towle of the UNHCR, for example, comments that the national response to people trafficking should be developed within the context of regional cooperation, in particular, through existing regional fora. It mentions the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, the Pacific Immigration Directors' Conference (PIDC) and the Intergovernmental Asia-Pacific Consultations on Refugees, Displaced Persons and Migration (APC). Other regional organisations mentioned by submitters include the Fiji Women's Cross Centre, UNIFEM Pacific, the Secretariat of the Pacific Community and the Pacific Islands Forum. Some suggest working closely with Australia.
World Vision New Zealand notes that "what happens within New Zealand's borders is only part of the wider issue" and urges the Government to recognise its international role in combating people trafficking.
The Discussion Document limits the scope of prevention to ensuring that people trafficking does not occur in New Zealand. This is an important step, but people trafficking is a transnational issue and requires global action to address it effectively. Even from a purely national perspective, New Zealand will always be at risk as long as people trafficking continues overseas. [World Vision New Zealand]
Other comments
Some submitters comment on the complex and multi-faceted nature of people trafficking. One submitter suggests applying complexity science to decision-making in this area.
Through our discussions one of the strong themes that became evident was the aspects of people-trafficking are both a complex and intractable. Making sense of these areas, allocating appropriate resources and being able to detect weak signals of potential threat are key if New Zealand is going to be able to provide early and proactive responses to any threats. [Alastair Gibbons]
Many submitter comments are directed at the specific initiatives required to prevent people trafficking or protect the victims of people trafficking. These comments are summarised in the following sections.
[2] The Human Rights Commission notes that it assisted six Thai women bonded to the New Zealand sex industry.
[3] The following references were provided: Susan Coppedge, People Trafficking: An International Crisis Fought at a Local Level, Fullbright New Zealand, 2006; Melissa Farley, Prostitution and Trafficking in Nevada: Making the Connections, Prostitution, Research and Education, San Francisco, 2007; Jan Macleod, Melissa Farley et al, Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based on Interviews with 100 Men who bought Women in Prostitution, Prostitution, Research and Education, San Francisco, 2008; Julie Bindel and Liz Kelly, A Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden London Metropolitan University, 2003