Lees-Galloway Iain: Organised Crime and Anti-corruption Legislation Bill — In CommitteeText is incorporated into the Bound VolumeLees-Galloway Iain: 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.]IAIN LEES-GALLOWAY (Labour—Palmerston North): As was foreshadowed at some length by my colleague Jacinda Ardern I would like to look closely at clause 5 of the Organised Crime and Anti-corruption Legislation Bill which replaces section 98D in the principal Act the Crimes Act. Section 98D deals with trafficking in persons. Largely the amendments contained in this bill enlarge on the original section and add some important aspects that hopefully will add some clarification and hopefully make it easier to prosecute cases of exploitation under this legislation rather than under some alternatives including for instance our employment legislation. What is probably most likely to support that is new section 98D(4) which actually has some definitions around the word “exploit”. Exploitation includes “slavery practices similar to slavery servitude” and in particular “forced labour”.This is what I want to concentrate on in this contribution because the same report that Jacinda Ardern referred to the Trafficking in PersonsReport 2015 did identify some issues with our ability under current legislation and under section 98D as it is currently written to actually identify some forms of labour exploitation as forced labour and to prosecute them under the Crimes Act. The report identified things that are probably well-known to us which are that “Foreign men and women from China India the Philippines countries in the Pacific South Africa and the United Kingdom are vulnerable to forced labor in New Zealand’s agriculture horticulture viticulture construction and hospitality sectors or as domestic workers. Some foreign workers are charged excessive and escalating recruitment fees experience unjustified salary deductions non- or underpayment of wages excessively long working hours restrictions on their movement and have their passports confiscated and contracts altered.” None of this is news to us but I think what perhaps has not been really recognised by the New Zealand public is that these actually constitute forms of forced labour and the report identifies some examples.One investigation revealed that an employer was exploiting Chinese chefs but there was no prosecution of the defendants for forced labour. It was stated by NGOs and Government officials that there was a high evidentiary bar and there was a failure to identify the behaviour as trafficking or forced labour as per international law. There was a lack of judicial support for prosecuting it as forced labour or even an understanding of trafficking and these were all identified as reasons for the lack of anti-trafficking prosecution of the employer of those identified victims. The report noted that “The Immigration Act prohibits retention or control of a person’s passport or any other travel or identity document [yet] there were no prosecutions under that provision.”So my hope is that—and I did not see anything in the commentary about this—by including forced labour as something that is explicitly defined as exploitation for the purposes of this section we might actually have a better opportunity to prosecute some of those offences under this Act. I would think and I would hope that the penalties which are imprisonment for a term not exceeding 20 years or a fine not exceeding half a million dollars or both—neither of those are new; those are in fact the penalties under the current section 98D but they are significant penalties—are a far greater disincentive to conducting the type of exploitation that is identified in this report than the penalties that are available under our employment legislation.There are other examples where New Zealand is currently failing to appropriately apply the laws that we already have. Again an example from this report: “Labor inspectors reported visiting legal brothels to ensure working conditions were in compliance with New Zealand law but none of these inspections resulted in the identification of trafficking victims.” I just do not think any of us in this Committee believe that that is realistic—that not one of those inspections actually identified any victims of trafficking. “Labor inspectors reported conducting routine audits in workplaces that employ migrant workers; they identified breaches of labor standards but these did not result in investigations or prosecutions of forced or coerced labor exploitation.” So clearly there is work to be done and this amended section 98D certainly appears on the face of it to go some way to addressing that. There is some rearrangement of the language which again hopefully makes it clearer what is the evidential bar for recognising trafficking and things like forced labour and slavery and for that matter other things that are identified in here like the removal of organs or prostitution and other sexual services. These definitions now hopefully are much clearer and much easier for the judiciary to apply.But we also need to see some enthusiasm for this approach from the judiciary. We need to see our labour inspectors properly resourced to be able to go out and identify potential cases of exploitation of this nature but also to be able to pursue those prosecutions because there is no doubt that pursuing those does require quite a high test. There is a high evidential test. The labour inspectors will want to be sure that they are able to prove their case and that takes resources—that takes resources. I would like to hear some assurance from the Minister in the chair the Hon Louise Upston that not only is the law appropriately written so that we can actually address some of these matters of forced labour but also the Government is prepared to resource the Ministry of Business Innovation and Employment and the other agencies tasked with enforcing this legislation to be actually able to go out there identify the cases take successful cases pursue them all the way and not fall at the final hurdle if they are not able to meet some of the evidential tests that will be required of them.Overall in my view this new section 98D is a significant improvement on what we have in the current legislation and it certainly looks to address some of the issues with New Zealand’s approach to these matters that have been identified by overseas agencies.