Ardern Jacinda: Organised Crime and Anti-corruption Legislation Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Organised Crime and Anti-corruption Legislation Bill — In Committee[Sitting date: 21 October 2015. Volume:709;Page:7419. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): I appreciate the opportunity to take a call and although I absolutely agree with what my colleagues have had to say on early clauses in this part around facilitation payments I actually want to focus my call on replaced section 98D of the Crimes Act set out in clause 5—the provisions that relate to trafficking in persons.The Organised Crime and Anti-corruption Legislation Bill in large part makes sure that we are compliant with international treaties and overseas obligations and that stands true for this part as well. If we were to identify the problem that we have it is in respect of the United Nations protocol to prevent suppress and punish trafficking in persons especially women and children—otherwise known as the anti-trafficking protocol. New Zealand is a signatory of that particular protocol and currently we are not entirely compliant with it.There are two areas we are meant to ensure that our legislation covers. Our legislation needs to clearly and precisely define the constituent elements of the trafficking in persons offence in order to distinguish it from other offences and enable the identification of trafficking victims and we need to ensure the trafficking in persons offence reflects the three constituent elements of actions means and exploitative purpose.So we have the situation at the moment where in New Zealand it is the Crimes Act that covers our trafficking requirements and they are set out in section 98D of the Crimes Act. However these provisions in the Crimes Act contain and express transnational requirement and—just to pull out the relevant part of the Crimes Act—that is that the offence requires in section 98D(1)(a) the “entry of a person into New Zealand”. In addition the offence does not explicitly refer to an exploitative purpose as one of the elements of trafficking. So it does not allow there to be cover currently in our legislation of trafficking within New Zealand with an exploitative purpose and the definition is too narrow based on what the UN would otherwise require us to do.There are rankings internationally of countries and how they performed in the area of exploitation and this is in the Trafficking in Persons Report. This is a report that puts countries on to different tiers. It is produced by the United States and New Zealand currently is in tier 1. There is however a concern that we may lose our ranking within that report because of the way that we currently define the exploitation and trafficking of people. I have pulled out a section of the report—and I thought I would be very digital and “e” and use my laptop but it is not really performing properly. But under the prosecution section of that report it states that in New Zealand: “The government moderately increased efforts to hold traffickers accountable for trafficking crimes. New Zealand does not have an anti-trafficking law that prohibits all forms of trafficking but the Parliament passed a second reading of proposed amendments (which are part of the Omnibus Crime Bill) to conform the definition of trafficking to international law. New Zealand statutes define human trafficking as a transnational offense akin to smuggling and do not include exploitation as an element of the crime. The Crimes Act of 1961 criminalizes only some specified forms of forced labor. Slavery is criminalized but limited to situations of debt bondage and serfdom; this prohibition does not cover forced labor obtained by means other than debt law custom or agreement that prohibits a person from leaving employment. The Dealing in Slaves statute and the Prostitution Reform Act criminalize inducing or compelling a person to provide commercial sex and with regard to children provide a broader prohibition to include facilitating assigning causing or encouraging a child to provide commercial sex.”So you can see from that reference that we do have specific provisions in things like the Prostitution Reform Act and our labour laws that might criminalise these areas but according to this report that of course does leave some gaps and may not cover all situations and circumstances that we need to cover. So this bill seeks to remedy that situation and does so reasonably successfully in my view because if you think first of all about the issue at the moment of our Crimes Act requiring it to be a transnational trafficking situation the amendment set out in new section 98D(3) states: “Proceedings may be brought under this section even if—(a) parts of the process by which the person was exploited coerced or deceived were accomplished without an act of exploitation coercion or deception: (b) the person exploited coerced or deceived—(i) did not in fact enter or exit the State concerned; or (ii) was not in fact received recruited transported transferred concealed or harboured in the State concerned.” So explicitly there we are removing that transnational requirement and allowing domestic situations to be covered.Let me give you an example. I heard a case not long ago of a woman who under legitimate terms came into New Zealand from Eastern Europe. I believe from recollection that she was in a relationship when she came into New Zealand. That fell apart. Her source of income fell apart. She found herself in a situation where for money she was working in prostitution but she was in an exploitative situation with the person who was employing her in that trade. Because of her tenuous immigration status and the nature of her work she was essentially being exploited by that individual.She was not expressly recruited into New Zealand for that purpose so technically I imagine under the Crimes Act currently charges could not have been pressed against that person under that clause but I would imagine—this is simply my reading of it—that the removal of the transnational factor would allow her exploitation to be properly covered when it comes to trafficking and exploitation.But the question I want to raise is that even though we are changing these provisions in line with the Trafficking in Persons Report there are still some criticisms in that report that are not simply legislative. I will leave it to my colleague Iain Lees-Galloway to speak at greater length about this.Iain Lees-Galloway: No pressure.JACINDA ARDERN: At great great length I would hope. The report goes into some detail and I will read some extracts about recommendations for New Zealand. It states that New Zealand should “Approve and enact the Omnibus Crime Bill to expand New Zealand’s current anti-trafficking legal framework; increase efforts to proactively identify victims through proactive screening of vulnerable populations including women and children in prostitution foreign workers and illegal migrants; significantly increase efforts to investigate and prosecute trafficking offenses especially offenses committed by recruitment agencies and employers who subject workers to debt bondage or involuntary servitude through deceptive recruitment non- or underpayment of wages and threats of deportation;” and so it continues.The point that I think is being made is that legislation is not enough and that even though we may have these provisions in place and we are enabling a broader set of references in statute we are still relying on particular cases to be brought before the courts in order to allow these provisions to apply. But the point being made in this report is that we do not screen. We do not look for those cases. We do not proactively go out there and seek to protect those communities who are most vulnerable.I myself have seen situations and I know that Iain Lees-Galloway will probably have countless examples of foreign workers who have been in these situations. But I know for instance that when I had a case that was brought to me that was clearly exploitative it was treated as a labour law case rather than under these provisions and it relied on the affected people to bring the case forward.When you are dealing with vulnerable populations like this the idea that they will proactively come forward—particularly when they have come from countries where people do not have a trusting relationship with officials—and bring a case to someone like a member of Parliament is not only daunting and prohibitive but it is not seen as safe I imagine by a significant part of our migrant population.So I do absolutely agree with the points made in the Trafficking in Persons Report—this legislation is one thing but we need to be proactive in our screening.