The unlikely lawyer
Foreign fishermen seeking redress for alleged slave labour are about to have their case heard in court. Their pro bono counsel, traffic lawyer Karen Harding, was a left-field choice to represent them.
It was the day before the handing down of a landmark decision that brought closer justice for 30 Indonesian fishermen seeking redress from the Crown and a South Korean fishing company, and Karen Harding stood in the Supreme Court practising her submissions in front of five empty chairs.
She already knew she’d won the case. It was March, but she’d made submissions in November. She had come prepared to say her bit, anyway. She wanted to.
The courtroom acoustics were good. She felt she owned the room.
And so she practised at the lectern, making a circular spread of her bulky paperwork while recounting the plight of these fishermen, before the chairs in which the justices would sit the next day.
But the following day ‘‘they wouldn’t even let me say a paragraph of what I’d prepared’’.
‘‘Allegedly you’re supposed to get 15 minutes of uninterrupted time, so I thought, ‘I’ll just get the fishermen’s story out, which would make a nice bit’. But no, I couldn’t even get through the first sentence because I’d won before I got there, which was great.’’
Harding is recounting the story in her central Auckland chambers, tucked away among highrises and heavy roadworks. Her office has a pink velour couch, bright artwork, and on one shelf, several Barbie dolls.
She dismisses the dolls’ presence. She has many more at home – a hotel room she owns streets away. The location was selected for its proximity to her office. After working 20 hours she can wander home in five minutes.
For years Harding, 48, has been a traffic lawyer, rescuing drink drivers and speedsters from conviction and jail. Not afraid to self-market, her ad jingles run on the radio and her social media promotion is unrivalled.
But her latest case has seen her cut by half her 400 traffic cases a year, and plough $250,000 of her own money into a civil stoush in a field she admits she had no prior experience in.
The case she describes as a David and Goliath battle required she learn admiralty law and the ins and outs of fishing.
In 2011, at Lyttelton, 32 fishermen walked off two South Korean fishing vessels operating in New Zealand waters, Oyang 75 and Oyang 77. It came a year after sister ship Oyang 70 sank, killing six. The fishermen alleged human rights abuses including lack of payment, violence, and grim working conditions.
At the time, their wage claims were taken on by human rights lawyer and director of Slave Free Seas, Craig Tuck, who pushed for a human trafficking prosecution that never eventuated. A ministerial inquiry resulted in the Government banning foreign flagged fishing vessels for a period, and the Oyang vessels were forfeited to the Crown.
Tuck negotiated a confidential settlement for the fishermen and a similar case travelling through the courts in Nelson – also relating to a Korean fishing company – was settled, too. Eventually, other fishermen, hearing of the claims, approached Harding through an Indonesian interpreter after her name came up through another lawyer – a friend of hers – who couldn’t take their case.
Harding now represents 30 Indonesian crew seeking nearly $7m in unpaid wages.
The claims have been partially resisted by Sajo Oyang Corporation and the Ministry of Primary Industries, and the long-running battle saw the Supreme Court this year overturn previous court decisions, ruling unanimously that claims for unpaid wages constituted an ‘‘interest’’ under a section of the Fisheries Act dedicated to forfeited property.
The win still tickles Harding, but the saga has been continuing since 2015 and she isn’t expecting the case to wrap up any time soon. Aside from the wage compensation action in the High Court, seven fishermen are also seeking modest payouts in the Employment Court against allegations of modern day slavery. A pre-trial hearing for that case will be heard next month.
Harding has been to Indonesia to meet the men several times, subsidising her own trips, paying for interpreters and legal assistants, even hiring an entire luxury hotel floor – more secure that way – to draft, print and sign affidavits, while feeding and housing them during the process.
Her first visit lasted weeks. She was led to believe a handful of fishermen needed representation but by the time she arrived nearly 30 were clamouring to see her. Many had complaints far exceeding what Harding could help them with. Bogged down, she missed her flight back to New Zealand two weeks later.
Since then, Harding confesses she sleeps little and works a lot. She keeps in regular contact with the fishermen whom she references in numbers, not out of disrespect, but for efficiency. She’s proud of the system she came up with in the early days of negotiating this case. She knows the back story and real name of each.
Fisherman 27, for example, came onboard after meeting another fisherman who had previously been involved in litigation. Number 27 had escaped a vessel and found a job in a wood chip factory; his employers let him sleep in an empty shipping container that happened to house a former fisherman who told him about the growing movement of fishermen seeking compensation in the New Zealand courts.
There are numerous similar stories and Harding describes them without taking a breath. She is unique in her approach to her clients – she makes YouTube videos about the case and uploads them so everyone can understand it. She keeps her contingent of Facebook followers updated with all her legal – and personal – moves. She is warm, and chatty.
Tuck, whose own 2012 representation of Oyang crew sparked a movement, says Harding is one of the most determined people he’s met. He accompanied her on one of her visits to Indonesia. She calls him Mr Tuck.
‘‘The world gets changed by people like Karen Harding,’’ Tuck says.
‘‘She basically grabbed the bull by the horns and isn’t letting go. Her background in transport law is so different to most people who are involved in this work – she’s from a completely different world.’’
Fisheries expert, journalist Michael Field, agrees.
‘‘What has marked her out has been her unusual dedication and style. While plainly not making any money out of it, she’s stuck at it. What is striking is that she is plainly a hero to a band of Muslim boys from Indonesia who might never have seen anything quite like her. Pink and fluffy is not the way of your average Indonesian fisherman.’’
Harding didn’t always know she wanted to be a lawyer. She studied town planning and worked in sales in London before studying law. Initially it seemed dull, but she knew the moment she stepped on the worn, pink carpet at Auckland’s dated district court all those years ago that litigation was where she wanted to be. She likes a good fight.
But the fishing case has taken more than most lawyers would be willing to give. Aside from her own time and money, listening to the stories the fishermen have told her has particularly troubled her.
‘‘They are willing to work hard and they just want to do their best and do their jobs,’’ she says. ‘‘They care about each other and they’re just really good people. You can’t tell all that sitting in an office talking to them on the computer or just reading some document – you have to go over and engage with them and their story and find out what happened.’’
She’s grown fond of the men who’ve put their trust in her. She’s empowered them, she says. They’ve learned English, come to grips with technology and understand more about their rights. She’s taken aback by their naivety – they don’t call themselves victims or carry a chip on their shoulder.
When asked her reasons for helping, Harding squints toward the ceiling. The short answer is, nobody else was putting up their hand. She had no experience with admiralty law, but she was a criminal defence lawyer who loved a good fight. That counted for something.
‘‘We fight for the underdog,’’ she says of defence lawyers. ‘‘In this case, although they are victims and they are making a claim, it’s like they kind of needed a defence because you’ve got to go and fight a big company.
‘‘It’s like your David and Goliath battle . . . There was no-one else, you know? It was kind of me or nothing. At the point you meet these people you want to help them – if you could do something, you would.’’
She’s confident she’s got a case. ‘‘In my view, I’ve got Oyang on the hook and they’re splashing around on the hook, trying to get off it.’’