Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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(2)(c) of the Convention. Privatization of prisons and prison labour. Work of prisoners for private companies. For a number of years, the Committee has been drawing the Government’s attention to the fact that the privatization of prison labour goes beyond the express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from its scope. It recalled that compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met, namely: that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to, or placed at, the disposal of private individuals, companies or associations. The two conditions are equally important and apply cumulatively: the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations. If either of the two conditions is not observed, the situation is not within the scope of the exception provided in the Convention, and, therefore, compulsory prison labour exacted under these circumstances is prohibited pursuant to Article 1(1) of the Convention. However, the Committee has considered that, where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, by giving their free, formal and informed consent and without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention, such work would not fall within the scope of the Convention.

In this connection, the Committee previously noted that private prisons existed in Victoria, New South Wales, Queensland, South Australia and Western Australia, while there were no prisons administered by private concerns under the Tasmanian, Northern Territory and Australian Capital Territory jurisdictions. It also noted the Government’s reiterated view that its law and practice comply with the Convention, given that prisoners accommodated in privately operated facilities remain under the supervision and control of public authorities, as required by Article 2(2)(c), and that the private sector has no rights to determine the conditions for the work of convicts, such conditions being established by the public authorities. The Government therefore considered that prisoners are not “hired to or placed at the disposal of private individuals, companies or associations”, since their “legal custody” remains with public authorities until their release from prison. The Government further indicated that no Australian jurisdiction was considering amending its law and practice.

The Committee noted, however, that certain jurisdictions presented some positive trends concerning the practical application of existing legislation. In New South Wales, as regards the issue of voluntariness, the Committee noted that the employment of convicts in correctional centres is voluntary. The Government indicated that, in order to ensure that the “informed” consent of prisoners to work for private companies is obtained, the following measures are in place in the privately operated correctional centres (Junee and Parklea): an inmate wishing to apply for work must complete a form, sign it and present it to the Industry Manager; if an inmate believes that he or she has been forced to work, the inmate may raise the matter with his/her immediate supervisor or the Inmate Development Committee, or lodge a formal complaint before the General Manager of the centre or the Ombudsman’s Office. Additionally, the Government stated that privately operated correctional centres in New South Wales are obliged to abide by the present Convention.

As regards South Australia, the Committee noted that, pursuant to section 29(1) of the Correctional Services Act, 1982, prison labour is compulsory both inside and outside correctional institutions. The Committee also noted the Government’s indication that prisoners at Mt Gambier Prison (South Australia’s only privately operated prison) apply in writing to undertake work programmes. The Government also indicated that prisoners in the Adelaide Pre-Release Centre are allowed to apply for outside employment with private enterprises, and any work undertaken by prisoners outside the centre is voluntary.

As regards Queensland, the Committee noted that prison labour is compulsory under section 66 of the Corrective Services Act, 2006. It also noted the Government’s repeated statement that prisoners are not forced to participate in approved work activities. According to the Government, although no formal consent of prisoners is required, the work programme is a voluntary initiative that provides prisoners with meaningful work projects to develop practical skills in order to assist their reintegration into the community. The Government also indicated that there are no consequences for a prisoner for refusal to participate in a work programme.

With regard to Western Australia, the Committee noted that prison labour is compulsory under section 95(4) of the Prisons Act. It also noted the Government’s indication that this provision had not been enforced, and prisoners are not forced to participate in work programmes, even in privately-run prisons. In its 2011 report, the Government indicated that there were six prisoner work camps established in regional Western Australia for the purposes of prisoners’ rehabilitation. According to the Government, placement in such work camps was voluntary and initiated by the prisoner making a formal written application.

In its latest report, the Government states that convicts in Western Australia are not engaged in an employment relationship with the prisons or the Department of Corrective Services. This has been confirmed by the Western Australian Industrial Relations Commission in the case Ireland v. Commissioner Corrective Services (2009, WAIRC 00123), in which it considered that the relationship between a prisoner and the State under the Prisons Act and associated regulations lacked the character of an employee-employer relationship.

The Committee notes, however, that, in the same decision, the Industrial Relations Commission states that “the element of choice [to perform prison labour] was removed when the appellant became a sentenced prisoner. He could then be required to work. … The use of the word “may” [under regulation 43(1) of the Prisons Regulations] gives a superintendent a discretionary power to direct a sentenced prisoner to work. Once the prisoner is so directed however, he or she may not refuse to do so. This is confirmed by section 69 of the Prisons Act, which makes it a prison offence to not properly perform work.” (2009, WAIRC 00123, paragraph 62). Similarly, in its decision on the same case, the Industrial Appeal Court highlighted that “as sentenced prisoner … the appellant did not perform prison work voluntarily. The effect of section 95 of the Prisons Act and regulation 43 of the Prisons Regulations is that the appellant was obliged to work. In carrying out prison work the appellant was required to carry out work and in the manner in which he was directed to do so by a prison officer.” (2009, WASCA 162).

Against this background, the Committee considers that the absence of a formal employment relationship does not preclude the need to ensure that the consent of convicts is formally required. In this regard, the Committee once again points out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain the prisoners’ formal consent to work for private enterprises in state-run prisons or in privatized prisons and that it should be given in writing. Further, given that such consent is required in a context of lack of freedom with limited options, there should be indicators which authenticate or satisfy the giving of the free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health.

In light of the above considerations, the Committee expresses the firm hope that the necessary measures will be taken, both in law and in practice in Western Australia and in other jurisdictions where such consent may not be required, in order to ensure that the formal, freely given and informed consent of convicts is required for work in privately operated prisons, as well as for all work of prisoners for private enterprises, both inside and outside prison premises, so that such consent is free from the menace of any penalty in the wide sense of Article 2(1) of the Convention, such as loss of privileges or an unfavourable assessment of behaviour taken into account for reduction of sentence. The Committee asks the Government to provide information on the progress made in this regard.

The Committee notes the Government’s indication that prisoners working for both publicly-run and privately-run prisons in Victoria have the same rights and entitlements, and that in both cases convicts must consent to undertake work. The Committee requests the Government to indicate how the informed consent of prisoners to work for private enterprises is obtained in practice, what measures are taken to ensure that such consent is formal, freely given and what remedies are available to a prisoner if the consent is alleged not to be freely given.

The Committee is raising other matters in a request addressed directly to the Government.