Are New Zealand's laws against prison labour imports in need of an overhaul? Photo: Matthias Müller (CC BY-NC-ND 2.0)

As the Government contemplates how to tackle modern slavery at home and abroad, there is concern about the state of laws already in place to stop prison labour goods entering the country

Plans to review New Zealand’s laws against the import of goods produced by prison labour have gone on ice for the time being, despite fears about whether they are sufficiently rigorous or being fully upheld.

New Zealand has had some form of ban on the importation of prison labour goods since 1908, with the most recent wording – from 1996 – outlawing the import of “goods manufactured or produced wholly or in part by prison labour, or within or in connection with any prison, jail, or penitentiary”.

In mid-2019, the Government acted to extend the prohibition indefinitely before it expired later that year  – but with one eye to whether it needed an overhaul this year, asking officials to report back by April on the case for a review of the rules.

A Cabinet paper at the time suggested the policy could be in need of an update, given the financial rather than ethical drivers behind its introduction in 1996.

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“This prohibition was originally adopted for mercantilist economic reasons, including to address concern about cheap or free offshore labour undercutting domestic production.

“In the ensuing decades, a broader swathe of issues – including regarding corrections, human rights, and labour policy – have become increasingly relevant considerations.”

A more deliberate, longer-term review could allow the Government to take into account developments in product traceability, prison labour policies in other jurisdictions and New Zealand’s own human rights, labour and trade policies.

It would also need to consider challenges in enforcing the current rules, which the Cabinet paper said had proven difficult.

“Under current settings [the] New Zealand Customs Service captures goods produced by prison labour at the border – but because such goods have no specific observable characteristics, border agents rely on self-declaration or tip-offs.

“New Zealand does not currently have capability to monitor prison labour regimes of other countries (nor assess whether the conditions in those regimes amount to forced labour).”

“If you can’t demonstrate that somebody breached the law, then it’s a criminal law in name only that’s never going to be enforced, because you’re never going to be able to prove beyond a reasonable doubt that somebody imported something which is the product of prison labour.”

Auckland University of Technology law professor Kris Gledhill told Newsroom it was positive New Zealand had a general prohibition in place, but the law as it stood was “a very blunt tool” with no real guidance to importers on how to avoid breaches.

Officials’ admission that they lacked the resources to investigate whether or not an import had been produced through prison labour was also a concern, Gledhill said.

“If you can’t demonstrate that somebody breached the law, then it’s a criminal law in name only that’s never going to be enforced, because you’re never going to be able to prove beyond a reasonable doubt that somebody imported something which is the product of prison labour.”

If New Zealand and other nations allowed prison labour goods to be imported, there was a risk that regimes with lower human rights standards would impose forced labour sentences without a sound basis.

With “pretty good evidence” that Uyghur Muslims in China were being forced to produce goods in prison settings, it was clear that New Zealand needed to step up its own regime to detect such activities, Gledhill said.

Green Party human rights spokeswoman Golriz Ghahraman told Newsroom the lack of a workable system and values-led approach to tackle goods produced by both slave and prison labour was a concern, given New Zealand’s human rights obligations.

“We need to look at why people are imprisoned in certain parts of the world. It’s not within the context of criminal justice: [from] ethnic persecution [to] political dissidents…

“So we’re speaking about something that’s much grosser than just being, ‘Can the criminal justice system profit from the labour of prisoners?’ –  there’s a lot more that we haven’t properly considered.”

Green MP Golriz Ghahraman said human rights concerns applied equally to prison labour goods and the products of forced labour. Photo: Lynn Grieveson

Ghahraman said establishing a “positive obligation” for companies importing goods into New Zealand to show their supply chain was clear of goods produced by prison and slave labour, with penalties ranging from fines to more serious criminal sanctions, would act as a meaningful deterrent.

Prison labour could not be separated out from other forms of forced labour given the human rights concerns were the same, she said.

“Separating them almost sort of reveals a moral judgment that we’re making, like this type of person who’s being forced to produce goods for no remuneration is good, and this other person, because they’ve been put in prison, is maybe less deserving of protection.

“The crux of it is the same – the reason that there’s a rights breach is actually the same.”

While the Government is currently weighing up whether to introduce specific modern slavery legislation to eliminate exploitation in supply chains, there is less clarity over the issue of prison labour imports.

A spokesman for Workplace Relations and Safety Minister Michael Wood, who is overseeing the modern slavery work, told Newsroom the matter did not fall within his remit.

But a spokesman for Trade and Export Growth Minister Damien O’Connor said work on a review had been overtaken by the Government’s plan of action against forced labour, people trafficking and slavery, overseen by Wood and released in March.

While the plan was domestically focused, one of the points of action was “to explore legislative and other options to address modern slavery including forced labour in international supply chains”.

“Once this work is completed we will be in a far better position to determine if the prison labour prohibition is still needed,” O’Connor’s spokesman said.

An added wrinkle comes from the fact that New Zealand itself allows prison labour: under a “prisoner incentive framework”, inmates can work for a set rate (as little as 20 cents an hour in 2019) on a voluntary basis.

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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