Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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 express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from its scope. It noted the Government’s reiterated view that its law and practice comply with the Convention, given that prisoners accommodated in privately operated facilities or working for private undertakings remain under the supervision and control of public authorities, 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.

1. Prison labour in privately operated prisons. In its previous comments, the Committee 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 in Queensland 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.

The Committee notes the Government’s information in its report that, in Queensland, under the Corrective Services Act 2006, it does not, nor is it authorized to, utilize any form of forced or compulsory labour. It also notes the Government’s repeated statement that prisoners are not forced to participate in approved work activities. According to the Government, the work activities in which prisoners in correctional facilities participate are part of their rehabilitation and reintegration process, and frequently, prisoners seek permission to participate in such activities. The Committee also notes that, according to the 2016–17 annual report of the Department of Justice and Attorney-General, the work performed by prisoners is not limited to community services performed within the framework of work camps, which are regulated by sections 66 and 67 of the Corrective Services Act 2006. It 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 (pages 24 and 122). The report on Government Services 2018 of Australia shows that, in 2016–17, 30.5 per cent of the eligible prisoners are employed in commercial industries, while 38.3 per cent of them are employed in service industries in Queensland (Chapter 8, table 8A.11).

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 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 Government’s information that no legislation change has been made in this regard.

As regards Victoria, the Committee noted 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 requested the Government to provide information on how such consent is ensured. The Committee notes that there is no new information provided by the Government.

As regards Western Australia, the Committee noted that prison labour is compulsory under section 95(4) of the Prisons Act, which has been confirmed by the Western Australian Industrial Relations Commission in the case Ireland v. Commissioner Corrective Services (2009, WAIRC 00123, paragraph 62) and the decision of the Industrial Appeal Court in the same case (2009, WASCA 162), referring also to regulation 43 of the Prison Regulations and section 69 of the Prisons Act. The Government indicated that this provision had not been enforced, and prisoners are not forced to participate in work programmes, even in privately run prisons. The Government further indicated that there were six prisoner work camps established in regional Western Australia, and that the placement in such work camps was voluntary and initiated by the prisoner making a formal written application.

The Committee notes the Government’s information that no changes have been made to relevant legislation regulating work activities of prisoners in Western Australia. However, the Committee notes that the Prisons Procedure 302 – work camps was issued in June 2017. According to its section 6.5.3, prisoners may apply for work camp placement, while 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.

In this regard, the Committee considers 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. The Committee once 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. In light of the above considerations, the Committee expresses its firm hope that the necessary measures will be taken, both in law and in practice in Queensland, South Australia, Victoria and Western Australia 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. The Committee also requests the Government to: (i) provide information on the procedures and working conditions of prisoners employed in other prison industries in Queensland, including both commercial industries and services industries, and to provide a copy of any legislative provisions in this regard; (ii) amend section 29(1) of the Correctional Services Act 1982 of South Australia, in order to align it with indicated practice and the requirements of the Convention; (iii) indicate how the informed consent of prisoners to work for private enterprises is obtained in practice in Victoria and what measures are taken to ensure that such consent is formal and freely given; and (iv) clarify how prisoners are included in a work camp placement when they have not expressly applied for it in Western Australia.

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, the Committee noted that, according to section 33 of the Corrections Act 1997 of Tasmania, a prisoner may be directed to work within or outside of the prison premises. The Committee also noted that, pursuant to Schedule 1 (Part 2.26) of the Act, refusal to comply with such direction is considered a prison offence. In this regard, the Government stated 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 perform such work.

The Committee notes the Government’s information that prisoners in Tasmania work for private enterprises on a voluntary basis as a part of their sentence-management plan, which is aimed at facilitating their employment upon release. As an added safeguard, the prisoner must apply for external leave in accordance with the Correction Act 1997 (sections 41 and 42). The Government indicates that there is no requirement for prisoners to participate in such employment and no penalty for non-participation. Moreover, all prisoners employed by a private enterprise are paid in accordance with the relevant award wages and subject to the same employment conditions as all other employees. While taking due note of the Government’s statement that prisoners are not forced to work for private undertakings in practice, the Committee requests the Government to amend section 33 and Schedule 1 (Part 2.26) of the Corrections Act 1997, in order to align it with indicated practice.

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