Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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. 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 conditions provided for under Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. However, 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, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee requested the Government to take the necessary measures to ensure that the free, formal and informed consent of prisoners is legally required for work in privately operated prisons, as well as for all work of prisoners for private enterprises.

1. Prison labour in privately operated prisons. The Committee previously noted that there were no privately operated prisons under the Northern Territory and Australian Capital Territory jurisdictions. The Committee also noted that, in New South Wales, the employment of convicts in correctional centres was voluntary.

As regards Queensland, the Committee observed that prisoners are obliged to perform work under section 66 of the Corrective Services Act 2006, which provides that the chief executive may, by written order, transfer a prisoner from a corrective services facility to a work camp, and the prisoner must perform community service as directed by the chief executive. It also noted that the work performed by prisoners is not limited to community services performed within the framework of work camps, but also includes employment in commercial industries operating on a commercial fee-for-service basis and in service industries to maintain the self-sufficiency of the correctional system and other unpaid work. The Committee notes the Government’s statement, in its report, that transfer of prisoners to a work camp is a management decision made about the best placement of a prisoner according to the Queensland Corrective Services’ (QCS) Custodial Operations Practice Directives (COPDs). Such community services include maintenance of public spaces and infrastructures (painting, mowing, gardening and cleaning) as well as building and restoring structures in public spaces, such as picnic tables. In 2019-20, 193,128 hours of community service were completed by prisoners. According to the Government, the financial value of the work performed in the community by prisoners is representative of making offenders accountable and providing reparation to the community as part of their rehabilitation. As regards participation of prisoners in commercial industries operating on a commercial fee-for-service basis and in service industries to maintain the self-sufficiency of the correctional system, the Government states that convicted prisoners are expected to work as it provides them with the opportunity to acquire vocational skills and contributes to their ability to gain and retain employment upon release. Unacceptable behaviour or work performance may incur the penalty of being placed in lower level employment positions and receiving a lower level incentive payment rate. The Government adds that the COPD on prisoner employment outlines the Queensland Corrective Services’ objective of having convicted prisoners employed wherever possible, and prison industries providing prisoners with meaningful activity through employment on a commercial, fee-for-service basis or prisoner services or community service. According to above-mentioned COPD, Chief Superintendent of a corrective services facility must provide for employment of prisoners by assigning them to available positions using an interdisciplinary approach that considers a prisoner’s behaviour. The Committee notes, from the Report on Government Services 2022 of Australia, that, in 2020–21 in Queensland, 26.3 per cent of the eligible prisoners were employed in commercial industries, while 38.9 per cent of them were employed in service industries (Chapter 8, table 8 A.12). It further notes the Government’s statement that, since 1 July 2021, all Queensland prisons are under public administration and prisoners will no longer be under private administration in that State.

As regards South Australia, the Committee recalls that, pursuant to section 29(1) of the Correctional Services Act 1982, prison labour is compulsory both inside and outside correctional institutions. The Government indicated, however, that prisoners at Mt Gambier Prison (South Australia’s only privately operated prison) apply in writing to undertake work programmes, and that prisoners in the Adelaide Pre-Release Centre voluntarily apply for outside employment with private enterprises. The Committee notes the adoption of the Correctional Services (Accountability and Other Measures) Amendment Act 2021, which amended section 29(1) of the Correctional Services Act 1982, but observes that prison labour is still compulsory while remand prisoners are no longer explicitly excluded from this obligation. Furthermore, it notes the Government’s indication that the Adelaide Remand Centre has been privatised and is now privately operated.

As regards Victoria, the Committee previously noted the Government’s indication that prisoners working for both publicly and privately operated prisons have the same rights and entitlements, and that in both cases convicts must consent to undertake work. The Committee notes the Government’s statement that all convicted prisoners are given the opportunity to work in prison industries in order to develop their employment skills. The Government adds that, in privately operated prisons, prisoners are not compelled to work. Vacant positions in prison industries are advertised to prisoners and they have the opportunity to apply for these positions. Prisoners are remunerated for their work in prison industries. If a prisoner refuses to work in prison industries, they are classified as unemployed and do not receive any remuneration but receive essential items and are encouraged to participate in other structured day activities such as training, education or programmes.

As regards Western Australia, the Committee previously noted that prison labour is compulsory under section 95(4) of the Prisons Act 1981 and section 43 of the Prison Regulations 1982. The Government indicated that such provisions had not been enforced as, in practice, prisoners are not forced to participate in work programmes, even in privately operated prisons. The Committee noted that, while section 6.5.3 of Prisons Procedure 302 on work camps provides that prisoners may apply for work camp placement, its section 7.1 provides that the designated superintendent shall ensure that those prisoners who may be suitable for work camp placement who have not initiated an application are appropriately assessed for inclusion. The Committee notes the Government’s indication that there are currently five prisoner work camps and that the superintendents are aware of eligible prisoners and proactively canvas all prisoners to gather interest for work camp placement. The Department of Justice encourages prisoners to consider work camp placements, however, they have to individually consent to the placement and are appraised of and agree to the conditions of the placement.

In light of the above considerations, the Committee recalls that the Convention addresses not only situations where prisoners are "employed” by the private company or placed in a position of providing services to the private company, but also situations where prisoners are hired to or placed at the disposal of private undertakings but remain under the authority and control of the prison administration. It again draws the Government’s attention to the fact that the work of prisoners in private prisons or for private companies is only compatible with the Convention where it does not involve compulsory labour. To this end, the formal, freely given and informed consent of the persons concerned is required, in addition to further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, occupational safety and health and social security. The Committee expresses the firm hope that the necessary measures will be taken in Queensland, South Australia, Victoria and Western Australia, both in law and practice, in order to ensure that formal, freely given and informed consent of convicts is required, as well as conditions approximating those of a free labour relationship for work in privately operated prisons and for all work of prisoners for private enterprises, both inside and outside prison premises. It requests in particular the Government to:

• (i)provide information on the legislative provisions that regulate the procedures and working conditions of prisoners employed in other prison industries in Queensland, including both commercial industries and services industries;
• (ii)amend section 29(1) of the Correctional Services Act 1982 of South Australia, in order to align it with the indicated practice, and specify whether remand prisoners are now compelled to work;
• (iii)provide information on the legislative provisions in the State of Victoria which provide that prisoners in privately operated prisons are not compelled to work, while indicating how, in practice, it is ensured that the prisoners concerned offer themselves voluntarily, by giving their free and informed consent (as well as examples of the forms through which prisoners may apply for vacant positions in prison industries and any other relevant document signed); and
• (iv)amend section 95(4) of the Prisons Act and section 43 of the Prison Regulations of Western Australia, in order to align the legislation with indicated practice.

2. Work of prisoners for private enterprises. Tasmania. In its previous comments, the Committee noted that there were no privately operated prisons in Tasmania. However, according to section 33 of the Corrections Act 1997,a prisoner may be directed to work within or outside of the prison premises. Pursuant to Schedule 1 (Part 2.26) of the Act, refusal to comply with such direction is considered a prison offence. The Government indicated that prisoners in Tasmania work for private enterprises on a voluntary basis and must apply for external leave in accordance with the Corrections Act 1997 (sections 41 and 42). The Government added that, in practice, there is no requirement for prisoners to participate in such employment and no penalty for non-participation.

The Committee notes the Government’s statement that there has been no change introduced to align the legislation with the indicated practice but that due consideration would be given to the Committee’s request to amend the Corrections Act 1997.The Committee welcomes this information and once again requests the Government to take the necessary steps in order to align the legislation with the indicated practice according to which prisoners work for private enterprises on a voluntary basis.

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