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1 New Zealand will lodge an Instrument of Ratification with the depositary of the Protocol to Prevent, Suppress and Punish Trafficking of Persons, especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime (‘the Trafficking Protocol’) after consideration of the Protocol by Parliament in accordance with Standing Orders, and the passage of the necessary implementing legislation. Ratification of the Trafficking Protocol can occur only after New Zealand has also ratified the Convention. The Trafficking Protocol itself will not enter into force until it has been ratified by 40 states (article 17).
2 People-smuggling involves assisting the illegal entry of a person into a country for financial or other material benefit. Generally smuggled migrants are voluntary participants in the activity. In contrast people-trafficking involves targeting people offshore for a specific purpose that involves exploitation, such work in the sex industry or sweatshops and, by means of coercion, fraud or deception, bringing them to New Zealand. Trafficked persons are generally vulnerable persons and, unlike smuggled migrants, are regarded as ‘victims’.
3 As noted in relation to the Protocol on the Smuggling of Migrants by Land, Sea and Air (‘the Migrants Protocol’), over recent years there has been a significant increase in illegal migration, assisted by both people-smuggling and people-trafficking. Criminal syndicates often facilitate this illegal migration as well as being active in the smuggling of various different commodities such as narcotics and firearms, or in other criminal activity.
4 The Trafficking Protocol recognises that people-trafficking as a discrete type of transnational crime that requires special measures because its targets are usually vulnerable in some way, for example, children. The purposes of the Protocol are:
Advantages
5 There are a number of advantages associated with becoming party to the Protocol which overlap with those noted in relation to the Migrants Protocol:
Disadvantages
6 The Trafficking and Migrants Protocols attempt to distinguish between trafficked and smuggled persons, with the former being regarded as victims and therefore entitled to greater protections. However, it is not always easy in practice to make the distinction between the two categories.
7 As noted in relation to the Convention, becoming a party to the Convention and the associated Protocols will involve an ongoing commitment and obligations, particularly in relation to ensuring continued compliance with the cooperation, technical assistance and prevention provisions. It is also possible that, New Zealand, as a developed country, will be expected to make a greater commitment, over time, to the provision of assistance to developing countries to combat people-trafficking, which could bring with it additional costs. New Zealand’s compliance with the obligations in the Protocol will be reviewed by the Conference of States Parties from time to time.
8 The main obligations in the Trafficking Protocol are as follows:
9 It should also be noted that most of the general provisions in the Convention apply, with any necessary modifications, to the conduct to which the Protocol relates.
10 It is possible to make reservations to all the instruments in accordance with the Vienna Convention on Law of Treaties (1969).
11 As noted above, there are a number of general advantages of becoming party to the Protocol. Ratification will contribute to the fight against transnational organised crime generally which benefits all countries, and, in particular, to eliminating this type of crime which is targeted at vulnerable persons.
12 Controlling illegal migration, in all its forms, is in New Zealand’s best interests, as it has flow-on effects economically, socially and culturally. For example, due to their illegal or uncertain status within countries trafficked persons can sometimes be coerced into conducting, or participating in, illegal activities on behalf of organised criminal groups. Ratification is not expected to have an adverse effect on Maori interests. Ensuring stricter compliance with New Zealand’s immigration policies is more likely assuage concerns about the effect of immigration on New Zealand’s cultural identity.
13 It is undesirable for New Zealand’s international reputation to have migrants, even illegal ones, exploited in ways that are generally regarded as unacceptable in New Zealand society. The approach in the Protocol, with the emphasis equally on prevention as well as prosecution, is consistent with the general approach that New Zealand takes to these issues, and with New Zealand’s human rights obligations. Compliance with the measures in the Protocol should serve to heighten public awareness within New Zealand of the nature of people-trafficking and the risks associated with it.
14 There are no direct environmental effects of the Trafficking Protocol entering or not entering into force for New Zealand.
15 As with the Migrants Protocol there could be costs associated with undertaking prosecutions, which may involve additional expenses if the evidence is not in New Zealand. There may be some costs associated with protecting trafficked persons as contemplated in the Protocol. However, what is required will be assessed on a case-by-case basis and is not likely to be great given that the objective is generally to repatriate trafficked persons.
16 As noted in relation to the Convention, some provisions that could involve additional costs are not mandatory in nature. These include the provision of assistance to developing countries. The obligations under the Convention and Protocols will be taken into account in making decisions on future initiatives that may be funded through New Zealand’s Overseas Aid Development programme.
17 The Trafficking Protocol is itself one of three Protocols to the United Nations Convention against Transnational Organised Crime.
18 Under article 18 amendments to the Protocol can be proposed 5 years after it comes into force. If it is not possible to achieve consensus, the amendment may be adopted by two-thirds of States Parties at a meeting of the Conference of States Parties. An amendment is also subject to ratification, acceptance or approval by States Parties and therefore binds only those Parties that have expressed consent to be bound.
Measures that could or should be adopted to implement the Trafficking Protocol, and the intentions of the Government in relation to such measures, including legislation.
19 While New Zealand law is consistent with many of the obligations in the Protocol, some legislative change is nevertheless required before New Zealand can ratify. It is intended that the following amendments be included the Transnational Organised Crime Bill to be introduced to Parliament in 2002.
A new offence of people trafficking will be created with a maximum penalty of 20 years imprisonment and/or a maximum fine of $500,000 with extraterritorial jurisdiction, as contemplated by articles 15(2) and 15(4) of the Convention.
Both the Trafficking and Migrants Protocols require States to have effective laws that ensure the security and integrity of their travel documents and to prevent their unlawful creation, issue and use. A number of the amendments proposed to be made to the Passports Act 1992 that are described in the National Interest Analysis for the Migrants Protocol will also be relevant in giving effect to the obligations in this Protocol, for example, the proposed new offences of forgery or falsification of a New Zealand travel document and knowingly falsifying travel document registers or databases.
To implement obligations in both the Trafficking and Migrants Protocols it is also proposed:
Because the Extradition Act 1999 extended the range of extraditable offences to all offences with a maximum penalty of at least 12 months imprisonment, the only substantive provision required in this context is the standard one deeming people-trafficking to be included in existing extradition treaties with other States Parties.
20 The obligations in the Convention relating to prevention, law enforcement, information-sharing and training are relevant to all forms of transnational crime including people-trafficking. The Trafficking Protocol contains additional provisions which focus on measures that are or may be particularly useful in the context of combating people-trafficking.
21 As noted in relation to the Migrants Protocol, New Zealand already has policies, either in place or under development, relating to both people trafficking and smuggling. The New Zealand Immigration Service is in the process of implementing a number of new initiatives to improve the capability and effectiveness of general risk management, and measures specifically aimed at improving border management. In addition, NZIS staff and Customs officers’ training modules are proposed specifically on issues surrounding smuggling and trafficking to help to raise staff awareness about the issues associated with, and differences between, these two forms of illegal migration. More generally, there is significant amount of inter-agency cooperation currently at the national level, with issues around people-trafficking falling under the umbrella of the Combined Law Agency Group.
22 Both Protocols required States to strengthen, as appropriate, cooperation with other States. While there is currently a significant amount of cooperation amongst Police and Customs bodies, the proposed amendment to the Immigration Act expressly allowing information-sharing with overseas agencies should enhance existing information sharing arrangements amongst immigration agencies.
23 The Protocol places some emphasis on protecting the victims of trafficking. Victims are not revictimised through prosecution and the NZIS works closely with other services in the Department of Labour (such as the Employment Relations Service) when people have been exploited through sweatshops. For instance, action is taken to ensure that victims receive any outstanding wages and holiday pay.
24 The Protocol requires due regard be paid to the safety of trafficked persons when taking decisions regarding their repatriation. If they are overstayers they are generally removed through a managed process. However, it is also possible, in special cases, for a section 35A permit to be granted to people who are in New Zealand unlawfully to enable them to apply for a temporary permit to regularise their status.
25 In summary, New Zealand is generally well-placed to comply with the prevention, law enforcement and training obligations of the Protocol. In many respects, therefore, the main effect of these obligations is to place New Zealand under an ongoing obligation to ensure there continues to be compliance. This may involve adapting policies, procedures and programmes as the need arises so they reflect “best practice” in combating people-trafficking. New Zealand’s compliance with these obligations will be subject to review by the Conference of States Parties at some time in the future.
26 The Ministries of Justice and Women’s Affairs, the Departments for Courts, of Internal Affairs, Corrections and Prime Minister and Cabinet, the Crown Law Office, New Zealand Defence Force, New Zealand Police, New Zealand Immigration and Customs Services, New Zealand Security Intelligence Service, and Treasury, have been consulted about ratification.
27 There will be an opportunity for public submissions on the provisions that require legislative change before those amendments become part of New Zealand law and before ratification takes place.
28 Article 19 of the Trafficking Protocol allows a State Party to denounce the Protocol by notifying the Secretary-General of the United Nations, in writing. The denunciation then takes effect one year after the date of notification.
