Thu Mar 14

NZ urgently needs modern anti-slavery law – why is the legislation sitting in limbo?

Written by: Petra Butler, Amo Matua–Executive Dean, Faculty of Law, University of Canterbury

The conviction of Joseph Matamata ^[1] in 2020 on ten counts of human trafficking and 13 counts of slavery was a watershed moment in recognising modern slavery is not just a foreign problem.

Some three years later, an Immigration New Zealand investigation ^[2] into migrant worker exploitation again highlighted some extremely precarious working conditions.

Rest breaks, minimum wage rates, written agreements and proper leave provisions simply don’t exist for those caught on the wrong side of the employment divide.

And yet New Zealand still has no specific legislation designed to deal with the problem. The Modern Slavery Reporting Bill ^[3] drafted by the previous Labour government last year has been sitting in limbo since the election.

Having initially signalled support for the bill, the workplace relations and safety minister, Brooke van Velden, said ^[4] earlier this year that Cabinet was “yet to make decisions” about its progress.

While it’s hard to predict the bill’s eventual fate, overseas it has been mainly centre-left governments that have driven comparable laws. Conservative governments have been less supportive.

Workplace relations and safety minister Brooke van Velden speaking to media

Workplace relations and safety minister Brooke van Velden: ‘yet to make decisions’. Getty Images

Problems with the bill

As it stands, the draft Modern Slavery Reporting Bill would require all kinds of commercial entities to take reasonable action if they become aware of modern slavery or worker exploitation in their domestic operations and supply chains.

Businesses with NZ$20 million–$50 million in annual revenue would also have to disclose the steps they are taking to address modern slavery. Businesses with annual revenues above $50 million would have to do due diligence to prevent, mitigate and remedy modern slavery and worker exploitation.

The Ministry of Business, Innovation and Employment (MBIE) defines worker exploitation as “[n]on-minor breaches of employment standards in New Zealand”.

But the bill faces more than just political uncertainty. Even if it became law, many New Zealand businesses would fall below the $20 million and $50 million thresholds.

In other words, they would remain unaffected by the reporting and due diligence requirements in the bill. Given worker exploitation happens just as much in smaller businesses, such a law would only address one part of the problem.

NZ absent from international discussion

Those concerns aside, if the bill (or a version of it) was passed, New Zealand would join many other nations (including the UK, France and Germany) with laws to hold corporations liable for human rights abuses. Australia has recently completed a statutory review of its 2018 Modern Slavery Act.

The European Union has also suggested a draft directive on human rights due diligence for corporations. Member states would be obliged to legislate to implement the directive.

Beyond national and regional regulation, there are the United Nations Guiding Principles on Business and Human Rights ^[7]. But while these enjoy close to universal acceptance by nations and corporations, they rely mainly on voluntary efforts by businesses to exercise human rights due diligence.

Dissatisfied with reliance on soft law, a growing number of countries have been advocating for an international treaty on business and human rights. Under the auspices of the UN Human Rights Council, a working group ^[8] has been developing a draft proposal for such a treaty.

In a nutshell, countries that ratified it would commit themselves to implementing national legislation to establish human rights due diligence for corporations and their subsidiaries. New Zealand has so far been absent from these discussions.

Filling the gap

Without bespoke modern slavery law, concerns over worker exploitation in New Zealand can be brought under OECD guidelines via the National Contact Point for Responsible Business Conduct (NCP ^[10]), overseen by MBIE.

The NCP will examine complaints and may facilitate mediation. It publishes key findings (preserving confidentiality of the parties) and may follow up after a year. But the OECD complaint mechanism offers little to victims of modern slavery compared to the remedies available under real anti-slavery legislation in those jurisdictions that have it.

In the absence of a local law, however, the NCP process would at least shine a light on problems in New Zealand and encourage the adoption of best practice by foreign and local multinational businesses.

Unfortunately, since its establishment in 2002, the NCP has received only six complaints. Of these, only three were resolved, and only one resulted in a facilitated agreement. More to the point, none of the complaints involved an incident of modern slavery.

As the OECD noted in its 2023 peer review of New Zealand ^[11], there is a low awareness of the due diligence requirements and available compensation for violations of modern slavery guidelines.

But, in the absence of purpose-built modern slavery legislation, it can only be hoped the OECD guidelines and complaints mechanism will be used more to fill this gap in New Zealand’s commitment to ethical business and human rights.

The author acknowledges Pierre Thielbörger, Professor of German Public Law and Public International Law at Ruhr University Bochum, whose recent lecture at Victoria University of Wellington inspired this article.