Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 (paragraph 1), and 2 (paragraphs 1 and 2, subparagraph (c)), of the Convention. 1. Work of prisoners for private enterprises. The Committee previously noted from the Government’s earlier report 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. Since the Government’s report contains no information on this issue, the Committee again requests the Government to indicate, in its next report, whether prisoners in Tasmania may be directed to outside work for private enterprises and, if so, whether their free consent to work for private companies is ensured, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc. The Committee refers in this connection to its observation addressed to the Government under the Convention.

2. Sentence of community work. The Committee previously noted from the Government’s report that, under the Sentencing Act, 1997 (Tasmania), a court may issue a Community Service Order (CSO), under which an offender must perform some work or other activity in the community, as part of a community corrections programme, under the direction of a probation officer or supervisor. Community corrections programmes may include, inter alia, work for the benefit of an organization that does not seek to provide a pecuniary benefit for its members. Non-compliance with the terms of a CSO may result, on application, in the court varying or cancelling the CSO and imposing an alternative sentence for the offence that gave rise to the original CSO. The Committee also noted that section 39 of the Sentencing Act, 1995 (Western Australia), contains similar provisions. The Committee requested the Government to indicate whether measures had been taken to ensure that persons performing community work under CSO were not hired to or placed at the disposal of private individuals, companies or associations without their free consent.

The Committee notes the Government’s indication in the report that in Queensland, under the Juvenile Justice Act, 1992, all programmes administered by the Department of Communities that involves work, including community service programmes, require the agreement of the participant. The Government also indicates 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. The Committee further notes the Government’s indications concerning the performance of community work under CSO in the Northern Territory. Since the Government’s report contains no information on this issue with regard to Tasmania and Western Australia, the Committee again requests the Government to indicate whether measures are taken or envisaged in these jurisdictions, as well as in other Australian jurisdictions, to ensure that persons performing community work under CSO are not hired to or placed at the disposal of private individuals, companies or associations without their consent, and, if so, how the voluntary consent of the persons concerned to work for a private user of community work is guaranteed. Please also supply information on the provisions governing a sentence of community work and on their application in practice.

Articles 1 (paragraph 1), and 2 (paragraph 1 and 2, subparagraph (d)). Powers to call up labour in cases of emergency. The Committee previously noted from the Government’s report 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 wide 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 has 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 Government indicates that there has been no significant change to the State Transport Act, 1938, since the last report, and that this power has only been utilized in Queensland once since 1971, and the Order in Council did not require any forced labour. The Government also states that any such declaration under the above Act must be done by way of regulation which is subject to the normal parliamentary scrutiny.

While noting these indications, the Committee reiterates its 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 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.

Article 25. Penal sanctions. Further to its earlier comments, the Committee notes the information provided by the Government on prosecutions instituted during the period 1 July 2006 to 30 June 2008 under divisions 270 and 271 of the Commonwealth Criminal Code Act 1995 (which deals with slavery and sexual servitude), as amended by the Criminal Code Amendment (Trafficking in Persons Offences) Act, 2005, and on the penalties imposed on perpetrators. The Committee also notes the Government’s indication in its report that no proceedings have been instituted during the reporting period in New South Wales, Victoria, Western Australia, South Australia, Tasmania, Northern Territory and the Australian Capital Territory under the provisions criminalizing sexual servitude. The Committee would appreciate it if the Government would continue to supply information, in its future reports, on any legal proceedings which have been instituted under these provisions and on any penalties imposed.