The Government has made tackling migrant exploitation a high priority, including the trafficking of people. Teuila Fuatai speaks to an international expert about some of the ways NZ could address trafficking

In the latest US State Department report on human trafficking, New Zealand is described as “a destination country for foreign men and women subjected to forced labour and sex trafficking”.

Released last month, the 486-page report profiles the state of human trafficking – also known as modern slavery – in countries, and provides an overview of different government measures in place to address the problem.

While it acknowledges ongoing efforts to address trafficking crimes in New Zealand, the report also makes a raft of recommendations, including possible legislative changes and “trafficking training to judges and prosecutors”. Trafficking expert Dr Nicola Wake, an associate professor in law at Newcastle’s Northumbria University, delved further into the complexity of the issue at a public lecture at the Auckland University of Technology this week.

Wake, fresh from several speaking arrangements in Australia, outlined the significant challenges in dealing with victims of trafficking. Many of the case were not clear-cut, with victims often offenders themselves, she said.

“A victim of trafficking who has committed a criminal offence is a possible perpetrator of a crime, but they’re also a potential victim, and also a potential witness.

“We know that the criminal law doesn’t deal very well when they’re presented with individuals who are a potential perpetrator, and a victim and a witness – we’re not really sure what to do with those affected individuals,” Wake said.

“We can draw similarities between trafficking victims and victims of abuse. We know that the law has historically not dealt very well with victims of abuse who commit offences in response to that abuse.”

For Wake, who is also deputy director at Northumbria University’s Centre for Evidence and Criminal Justice Studies, addressing that mismatch in the law should help victims come forward.

“A victim of trafficking might commit assault, or they might threaten somebody, or they might commit a harm against a person to escape their trafficking situation,” she said.

“We do want them to feel like they can come forward to the authorities. We want them to say: ‘Yes, I might have committed this petty theft offence, but it was because I was a victim of trafficking’. Traffickers abuse victims by telling them that the authorities won’t listen to them, that they’ll be arrested, that they’ll be deported.”

In England and Wales, the implementation of the Modern Slavery act three years ago helped provide some protection for victims in these situations – however a lot of improvements are still needed.

Most problematic is a provision in the act – under Section 45 – that essentially excludes protection of victims if they commit a crime from a list of 140 defined offences. Included in that list are serious crimes like murder and sex offences. While Wake was adamant she was not advocating for “blanket immunity”, she pointed out the shortfalls in the approach.

“It totally ignores the fact that there’s not an exhaustive list of the types of offences you might commit.

“They’ve also excluded immigration-based offences [and that includes] facilitating fraudulent documentation, which is something that victims of trafficking could be really vulnerable to.”

For New Zealand, which is yet to implement a specific act targeting human trafficking, Wake recommended looking at developments in other jurisdictions, as well as the UK experience so far.

“In Scotland, the Lord Advocate [has] advanced guidance that there’s a strong presumption against prosecuting a victim of trafficking who is compelled to commit an offence. So, they’re dealing with it without the legislation at all. The Australian Government have said that it looks like a really good approach to bring in something like Section 45, but improve on that. In Trinidad and Tobago, they have an absolute defence – so they don’t exclude any offences.”

Wake also said that recognising the need for providing protection of trafficking victims – as the Modern Slavery act had done in the UK – was an “important first step” for countries with nothing in place.  

“What we have to do is say: ‘Were they a victim of trafficking, and was their behaviour a direct result of the trafficking or attributable to slavery or exploitation in the sense that they were under the control of the trafficker.”

From that, a wider conversation about who should be “punished”, and how that relates to current and proposed laws could occur, she said.

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