The global phenomenon that is the #MeToo and #TimesUp movements have highlighted the prevalence of sexual assault and harassment in the workplace. For what feels like the first time, victims were believed and not blamed. This empowered scores of women (and a few men) to come forward and share their harrowing stories of abuse and harassment. New Zealand was no exception. Of late, there have been multiple media reports of sexual harassment and assault in law firms[1] and even within the Human Rights Commission – a statutory body empowered to review sexual harassment complaints in New Zealand.[2] Most recently, journalist Alison Mau has “launched an investigation into sexual harassment in New Zealand workplaces”[3].

These developments prompted the New Zealand government to begin to collect data on sexual harassment.[4] Incredibly, at present the “Ministry of Business Innovation and Employment… collects data on harassment or bullying, but not on sexual harassment specifically.”[5] The New Zealand Law Society President, Kathryn Beck, has also intimated that it will set up a working group to review sexual harassment reporting mechanisms and ways this can be improved upon.[6] This comes on the heels of the harassment surveys launched by lawyer Elizabeth Hall[7] and the Criminal Bar Association of New Zealand[8].

The spotlight that has been placed on the issue of sexual assault and harassment in New Zealand within the upper echelons of our society is welcome. It highlights the fact that anyone in any occupation can be a victim of unwanted advances, sexual assault and harassment in the workplace. That said, it is concerning that the accounts and experiences of victims of sexual assault and harassment among the temporary migrant workforce in New Zealand is noticeably absent from this national conversation. And there may be a very good reason for this.

A temporary visa holder’s right to work in New Zealand depends on the conditions of their visa. A person who holds a job-specific visa, such as an Essential Skills Work Visa[9] or a Post Study (Employer Assisted) Work Visa[10], can only work for the employer who successfully supported their work visa application. This restriction exposes migrant workers to an unparalleled risk of exploitation because their right to work in New Zealand is dependent on remaining employed by a specific business or company. If the employment relationship ends for any reason, the temporary visa holder will lose their ability to work and earn a living in New Zealand, and they will usually be left with one of two very limited options: 1) find another job, or, 2) return to their home country. There is also the risk of deportation liability arising as a result of discontinuing employment with the offending employer.[11]

Fear of losing the right to work in New Zealand is a real disincentive for temporary migrant workers to report sexual assault and / or harassment in the workplace – especially if the perpetrator is the employer or a senior member of staff. This scheme entrenches the inherent power imbalance between the employer and temporary migrant worker and it puts many women (and some men) at high risk of harm. Compounding this is the absence of any provision under the current Immigration New Zealand Instructions for special work visas to be granted to victims of workplace sexual harassment. A similar policy vacuum affects victims of domestic violence whose partners are also the holders of temporary visas.

Whilst it has been encouraging to see tangible steps being taken to address the issue of sexual assault and harassment in the workplace, this movement for change will ring hollow if it fails to protect the most vulnerable amongst us. Time will tell if the changes that come about as a result of this watershed moment will offer meaningful protection to everyone who works in New Zealand, irrespective of their immigration status.

[1] Radio New Zealand, “Fresh allegations at law firm: ‘This should not be happening” <>  (23 February 2018).

[2] Radio New Zealand, “Mishandling concerns spur review into Human Rights Commission” <> (21 February 2018).

[3] Newshub, “Alison Mau launches #metoo NZ sexual harassment investigation” <> (1 March 2018).

[4] Radio New Zealand, “Govt to collect workplace sexual misconduct data” <> (5 February 2018).

[5] As above.

[6] New Zealand Law Society, “Law Society President explains new ‘working group’ on Breakfast TV” <> (2 March 2018).

[7] Radio New Zealand, “Lawyer Elizabeth Hall initiates law firm harassment survey” <> (16 February 2018).

[8] New Zealand Herald, “Criminal Bar Association to survey lawyers about harassment, bullying” <> (22 February 2018).

[9] Immigration New Zealand Operational Manual, at Instruction WK4.5(a)(ii).

[10] Immigration New Zealand Operational Manual, at WD1(h) and W2.25(a)(ii).

[11] Immigration Act 2009, at section 157(5)(a).