Human trafficking in New Zealand: a review of recent case law

by 17 Jan 2014
In Elliott v Kirk AT17/01 (19 February 2001) the respondents, Mrs Sopana Kirk and Sewing Together Ltd, were alleged to have breached provisions of the Minimum Wage Act 1983 and the Holidays Act 1991. Again, the facts demonstrated the existence of human trafficking. The respondents brought women to New Zealand from Thailand under false pretences, withheld their passports, and operated a debt-bondage style scheme in order to keep their employees under control.
The most thorough recent judicial consideration of a similar case with transnational elements was R v Chechelnitski CA160/04 (1 September 2004). The defendant smuggled a number of Ukrainian nationals into New Zealand using false Israeli passports. It was noted by the court on appeal against sentence that in cases such as people trafficking and smuggling, the key factor in determining a sentence must be deterrence. The court held that a monetary penalty would not normally be appropriate, as traffickers would simply build that fee into the costs of running a trafficking organisation. This defendant was not the organiser of the operation, but played a role akin to a drug courier, and was found guilty under the migrant smuggling provision in s 98C(1) of the Crimes Act 1961.
R v Setiadi [2006] NZHC 619 (1 June 2006) resulted from a Department of Labour investigation into illegal migrant labour abuse schemes in the Hawkes Bay area. The defendant had acted as the New Zealand contact for an Indonesian organisation that brought Indonesian labourers into New Zealand on false passports to work as labourers. Each victim paid a large sum of money to the organisation and was told that they could legally work in New Zealand. Upon arrival they were escorted to orchards by the defendant and were housed in substandard accommodation. Although the defendant was charged with immigration and migrant smuggling offences under the Immigration Act 1987 and the Crimes Act 1961, the facts also appear to support a charge of human trafficking, and evidence led by the prosecution clearly supported this claim. The case report quotes victim statements showing that the victims were economically vulnerable, paid a relatively large sum to an agent, were deceived as to the nature of the work in New Zealand, and were further exploited upon arrival. 
R v Thu Huynh and Ut Danh DC Napier CRI-2007-020-1460 (12 September 2007) stemmed from the same investigation, although relating to a different operation. Vietnamese fishermen who had jumped ship to escape abusive working conditions were enticed by the defendants to work for the company they represented. The directors of the company were prosecuted for immigration offences. The Court of Appeal found that the directors used fictitious sub-contractors to employ the illegal workers so as to disguise the use of their labour and distance themselves from the scheme (Elliott v R [2010] NZCA 611 (14 December 2010)). The sentencing notes of Judge Adeane in this matter reveal a disconcerting disregard for the apparent seriousness of the offending. Judge Adeane took the view that the men were simply filling a niche in the market for cheap labour.
It can be seen from the number of these cases that the authorities have some experience in investigating and prosecuting forced labour cases. While the evidence available makes it difficult to support a claim that there is intentional understating of the problem, it seems clear that authorities are choosing to prosecute offenders under regulatory offences, as opposed to the more serious offence of human trafficking under s 98D of the Crimes Act 1961. As the legal requirements for taking such cases are highly analogous to those required for the offence of human trafficking, this apparent leniency in prosecution is concerning.

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