Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Forced Labour Convention, 1930 (No. 29) - Australia (Ratification: 1932)
Protocol of 2014 to the Forced Labour Convention, 1930 - Australia (Ratification: 2022)

Articles 1(1), 2(1) and (2)(c) of the Convention. Work of prisoners for private enterprises. The Committee previously noted that, under section 33 of the Corrections Act, 1997 (Tasmania), a prisoner may be directed to work within or outside of the prison precincts, refusal to comply with such direction to work being considered as a prison offence under Schedule 1 of the Act. The Committee requested the Government to indicate whether prisoners may be directed to outside work for private enterprises. The Government states in its report that prisoners in Tasmania are able to work for private enterprises at the discretion of the Director of Prisons, and that they are consulted regarding the type of work to be undertaken and must freely consent to do the work. Referring to its observation under the Convention, the Committee requests the Government to indicate, in its next report, how formal, freely given and informed consent of the prisoners concerned to work for private enterprises in Tasmania is ensured, together with further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc.

Sentence of community work. In its earlier comments, the Committee requested the Government to indicate the measures taken to ensure that persons performing community work under a community service order (CSO) are not hired to or placed at the disposal of private individuals, companies or associations (including non-profitable organizations and institutions) without their voluntary consent.

The Committee notes from the Government’s report that, in a majority of Australian jurisdictions, voluntary consent of the persons concerned to perform community work under CSO is either required by the legislation or ensured in practice. Thus, the Government indicates that in New South Wales, the offender signs an agreement to undertake unpaid CSO work, as well as an agreement to commence work in a particular work site. In Queensland, under the Penalties and Sentences Act, 1992, a CSO is made by the court only with the agreement of the offender; placement at any community service site also requires the agreement of the participant prior to work commencement. In Western Australia, under the Sentence Administration Act, 2003, the offender must sign an agreed Community Service Contract prior to commencing work. The Government also reiterates that in South Australia, an intake interview is provided to each offender doing community service, which helps to ensure the voluntary consent of the persons concerned to work for a private user of community work. As regards Tasmania, the Government states that, in practice, offenders are required to sign a form indicating that they agree to comply with the conditions imposed by the CSO; they are also directly asked if they are willing to undertake a work under the CSO. The Committee further notes the Government’s indication that, in the Northern Territory, consent by an offender is part of the assessment process, in which the offender must accept and consent to the provision of the CSO project.

The Committee observes, however, that no formal consent of offenders to perform CSO work for private institutions appears to be asked for in Victoria and Australian Capital Territory. The Committee therefore hopes, referring also to the explanations contained in paragraphs 123–128 of its 2007 General Survey on the eradication of forced labour, that the Government will provide, in its next report, information on measures taken or envisaged in these jurisdictions to ensure that offenders do not perform community work under CSO for private institutions or organizations without their formal, informed, voluntary consent.

Articles 1(1), 2(1) and (2)(d). Powers to call up labour in cases of emergency. The Committee previously noted that the provision of section 2(1) of the State Transport Act, 1938, concerning a declaration of a state of emergency (which grants to the Governor in Council powers to call up labour) is worded in terms which are broad enough to permit its application in circumstances not limited to the cases of emergency in the strict sense of Article 2(2)(d) of the Convention. It also noted that the Supreme Court of Queensland in Dean v. Attorney-General of Queensland ([1971] Qd.R.391), in its interpretation of this provision, found that it was not limited to the category of “natural catastrophes and calamities” and gave greater scope to the situations in which a state of emergency may be declared.

The Committee takes due note of the Government’s view expressed in the report that the declaration of a state of emergency must be adopted in appropriate circumstances which reflect the full range of threats that might exist in contemporary society (including, for example, any threat of terrorism or terrorism-related activities). The Government also reiterates that any such declaration under the above Act must be done by way of a regulation which is subject to the normal Parliamentary scrutiny.

While duly noting these statements, the Committee expresses the firm hope that the Government will adopt the necessary measures, on the occasion of future revision of the legislation, in order to limit the above provision to the cases of emergency in the strict sense of the term, as described in Article 2(2)(d) (that is, to the events of war or of a calamity or threatened calamity, and in general to any circumstances that would endanger the existence or the well-being of the whole or part of the population) and that, pending the adoption of such measures, the Government will continue to provide information on the application of section 2(1) of the State Transport Act, 1938, in practice.