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6 July 1998


Mr R E Brereton
Commissioner for the South Island
Human Rights Commission
P.O. Box 1578
117 Worcester Street
CHRISTCHURCH


Dear Mr Brereton,

In accordance with the powers of the Commission under the Human Rights Act 1993 - which provide for the Commission to enquire generally into any matter which may infringe human rights and which include any law, practice or procedure, whether governmental or non-governmental - a complaint against the Prime Minister, the Rt Hon Mrs J Shipley and the Minister of Employment, the Hon Mr P McCardle, is hereby laid in respect of legislation requiring those in receipt of an unemployment benefit to work against their will in order to qualify for such a benefit.

The complaint is laid against Mrs Shipley in her capacity as the senior representative of the people and who has therefore overall responsibility for matters of human rights and against Mr McCardle in his capacity as the minister responsible for employment and who therefore introduced the legislation.

The first ground for the complaint is that such schemes contravene Article 2.1 of the Forced Labour Convention, 1930 - a Convention of the International Labour Organisation - which was ratified by New Zealand on 29 March 1938 and has not been renounced. The Centre cites the precedents of the decisions of the Committee of Experts of the International Labour Organisation in the cases of Chile and Germany.

The individual's ownership of his or her own labour is a fundamental human right which has been upheld both internationally and domestically for over half a century.

With regard to the status of the ILO in this matter, the following is a quotation from its mandate.

"The International Labour Organisation is the UN specialised agency
which seeks the promotion of social justice and internationally recognised
human and labour rights. It was founded in 1919 and is the only surviving
major creation of the Treaty of Versailles which brought the League of
Nations into being and it became the first specialised agency of the UN in
1946."

The Commission may care to note that the conventions of the International Labour Organisation constitute international law and are therefore subject to the proceedings of the International Court of Justice.

In the matter of the Forced Labour Convention, 1930, Article 2.1 defines forced or compulsory labour as;

" . . . all work or service which is exacted from any person under
the menace of any penalty and for which the said person has
not offered himself voluntarily."

A copy of the Convention is enclosed as Appendix A.

There are therefore two conditions which have to be met by the New Zealand Community Wage scheme before it can be classified as forced labour.

First, the person involved has to be compelled against his or her own will to carry out the work.

Second, there must be some form of penalty - "menace" in the wording of the Convention - applied to any person who refuses to carry out the work.

As the Commission will see from the enclosed copy of the Minister of Employment's media release, both conditions are met. (Appendix B)

On page one of the media release the Minister is directly quoted as saying;

"The penalties are based on the principle that if you are offered community
work, training or organised activities and you don't participate, you don't
get paid."

The media release contains many other references to the compulsory nature of the scheme as well as setting out the penalties that a person will be subject to should he or she refuse to work.

The Committee of Experts of the International Labour Organisation has repeatedly found in the case of Chile that "working for the dole" is forced labour.

The Centre would like to draw to your attention the facsimile message from the ILO, (Appendix C), in which copies of the actual documents of the Committee of Experts show that the Committee has held this view since 1987.

In previous correspondence with the Centre the then Prime Minister the Rt Hon Mr J Bolger, claimed that the Unemployment Provision Convention, 1934, provided for the unemployed to be forced to work against their will in order to qualify for a benefit.

It would appear that that claim by Mr Bolger was misleading.

Article 9 of that convention states that;

"The right to receive benefit or an allowance may be made conditional
upon the acceptance, under conditions prescribed by national laws or
regulations, of employment on relief works organised by a public authority."

(The italics are those of the Centre.)

A copy of the Unemployment Benefit Convention, 1934, is enclosed as Appendix D.

It would appear that Mr Bolger was unaware of Article Four of the Forced Labour Convention, 1930, which specifically prohibits the use of forced or compulsory labour;

" . . . for the benefit of private individuals, companies or associations."

The Deputy Prime Minister, the Rt Hon Mr W Peters MP, has stated publicly that private individuals, companies and organisations are to benefit from the labour of those persons who are to carry out work under the Community Wage scheme. Such private individuals, companies or associations would include the elderly, private nursing homes and sports clubs.

The second ground for the complaint relates to one of the stated purposes of the Community Wage scheme. Answer 16 of the Media Release from the Minister of Employment reads;

"Improving Community Wage recipients standards of attendance, behaviour
and attitude are an important part of the Community Wage concept."

The Centre submits that is not a legitimate function of a government in a democracy to compel a section of the citizenry, which has been defined solely on economic and not criminal grounds, to adopt the views on attendance, behaviour and thought processes of those who temporarily hold power. Such use of power by a government over its people is reminiscent of the process by which those in Communist China were indoctrinated into carrying and repeating the thoughts of Mao Tse Tung.

It is for this reason that Article 1 (a) of the Abolition of Forced Labour Convention, 1957, expressly prohibits the use of forced or compulsory labour for the purposes of

" . . . education or as a punishment for holding or expressing political views
or views ideologically opposed to the established political, social or economic
system;"

A copy of the Abolition of Forced Labour Convention, 1957, is enclosed as Appendix E.

This aim of the Community Wage scheme is clearly intended to inculcate a view of the world in the minds of the persons forced to take part in the Scheme which is that of those in positions of power and may not be that which the individuals would choose for themselves. Individuals in a free democratic society who are unemployed through no fault of their own, are perfectly entitled to think what they like of a capitalist society, and to express those views towards those they may feel are exploiting them in any way they see fit-which would include for example, displaying an attitude of open contempt towards those supervisors who use questionable powers to force them to work against their will.

The Centre therefore submits that to attempt to inculcate compliance with the world view of the current government is educational.

The third ground for the complaint is that the legislation breaches the undertaking explicit in the ratification of the Forced Labour Convention, 1930, to uphold the provisions of that Convention in the domestic law of those countries which ratify such conventions. This same ground for complaint is cited in the case of the breach of Article 1(a) of the Abolition of Forced Labour Convention, 1957.

Verification of this claim may be found in Appendix F.

The fourth ground for the complaint is that the legislation discriminates on the ground of employment status. Only those persons who are in receipt of benefits are tobe forced to work against their will. Those persons who are in paid employment are not to be so forced nor are those persons who are not in paid employment and are not in receipt of a benefit.

The fifth ground for complaint is that in a court of law, the legislation discriminates against those in receipt of an unemployment benefit as opposed to those who are convicted of a crime. According to the New Zealand Government's Department of Labour, in order to comply with the Forced Labour Convention, 1930, the Criminal Justice Act does not allow any person convicted of a criminal offence to be sentenced to community service without his or her consent.

Verification of this claim may be found in the copy of page 28 of the New Zealand Department of Labour's 1993 publication International Labour Conventions Ratified by New Zealand which is enclosed as Appendix G.

It is now the case in New Zealand that a judge can not force a convicted criminal to carry out community service, but will have the power to force an unemployed person to carry out that same sentence.

The unemployed person will have committed no crime. In this area the Centre agrees with the view of Mr Peter Harris, Council of Trade Unions economist, who, in a Listener article (May 9-15 1998), said of those persons affected by the legislation,

"We can't find any legal status for them, other than periodic detention workers."

Finally, the Centre submits that any attempt by the government of New Zealand to change domestic legislation to absolve itself of any obligation to adhere to either international law, in the case of conventions of the ILO or domestic law, is in itself legislation that falls with the original powers of the Commission to investigate; in that such legislation is itself an infringement of the human rights of the free citizens of New Zealand. Nazi Germany changed its internal law to legalise its abuse of human rights but as the events of Nuremberg showed, the persons who changed the law were still in breach of the standards of a civilised society.





Yours faithfully,



J M STEVENSON (Mr)

DIRECTOR



The New Zealand Human Rights Commission's response is  here




 

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