Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee has noted the information supplied by the Government in its reports received in October 1996 and September 1998. It has also noted a communication received on 21 August 1998 from the Australian Council of Trade Unions (ACTU), which contained statements concerning prison labour in private prisons in Victoria, in relation to the application of the Convention, as well as the Government's reply to these allegations, received on 6 November 1998.

Article 1(1) and Article 2(1) and (2)(c) of the Convention. 1. The ACTU indicates that there are three private prisons in the State of Victoria which accommodate 47 per cent of all prisoners in that State, and that there all prisoners under 65 have to work, under threat of penalty. According to the ACTU, at Deer Park Women's Prison those who refuse to work are moved to less desirable quarters; at Fulham Prison and Port Phillip Prison prisoners lose privileges if they refuse to work. The ACTU states that in all private prisons work is supervised by private operators (not a public authority) and prisoners are required to perform work for a private company (the company managing the prison). The rate of remuneration in private prisons is said to be A$6.50 or A$7.50 per day, compared with an award minimum daily rate of almost A$75 for freely employed workers.

2. The Government states in its reply that, in both public and private prisons, prison labour is carried out under the supervision and control of a public authority, and that prisoners remain in the custody of the State, which retains overall responsibility; the Office of the Correctional Services Commissioner (OCSC) retains direct responsibility for sentence calculation, prisoner assessment and classification and the allocation of security ratings. In respect of private prisons, the Minister, the Secretary of the Department and any person authorized by the Secretary has free access to the prison, all prisoners and persons employed at the prison, and all relevant documents in the possession of the prison operator, with a view to ensuring that the operator complies with all relevant laws and contractual obligations, and that the safe custody and welfare of the prisoners is maintained.

Prisoners detained in private prisons would be required to work in prison industries under the terms of the Victoria Corrections Act. Only ill or pregnant prisoners or those with a young child in their care would not be required to work. Rates of pay and hours of work would be established by the OCSC. The only prisoners not receiving some form of wages would be those who had directly refused to work, in contravention of the Corrections Act, "wages" for prisoners being better understood as "allowances" for cooperation with the prison regime. Limited prisoners' "wages" would be paid to those unable to work due to sickness, maternity, age or invalidity. Prisoners would not be covered by the State Workers Compensation Scheme or eligible for most social security payments.

The Government indicates that surplus income derived from prison industries is not retained by the private prison operator. The Prison Services Agreement between the Government of Victoria and each private prison operator requires the operator to ensure that all income from industries is kept separate from the income of the Contractor and that any profit from the industries is reinvested in the industry or expended in such other manner as is approved by the Secretary (of the Department of Justice).

In the Government's view, it is not appropriate to compare the rates of pay for prisoners with wages for the same type of work undertaken freely, without taking into account the context of prison labour. Prison industries are established to provide work skills and work experience as part of the rehabilitative process to develop skills necessary for prisoners' entry to the labour market upon release.

3. In its 1996 report, the Government referred in detail to prison labour in non-state prison facilities in South Australia, New South Wales, Queensland and Victoria, there being none such in the Northern Territory. In its report received in September 1998, the Government has also referred to legislation administered by the Queensland Correction Services Commission, and has stated that prison labour in Queensland falls within the Article 2(2)(c) exemption regardless of whether prisoners are housed in a state managed institution or a contract managed correctional centre. It also indicates that while there are no disincentives or penalties that would encourage prisoners to accept work, refusal to work would be regarded as not fully participating in the process of self-directed rehabilitation. The Government further states that Queensland Corrective Services (Administration) Act 1988, laying down conditions for the management of an operation of contract managed correctional centres by private organizations to conduct on behalf of the Queensland Corrective Services Commission any part of its operations, means that prisoners accommodated in contract managed prisons are "under the supervision and control of a public authority" as required by this Article.

4. The Committee recalls that 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. Thus, the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense from fulfilling the second condition, namely, that the person is not "hired to or placed at the disposal of private individuals, companies or associations". The Convention provides for no exception to this prohibition, which is absolute and should be complied with irrespective of the way by which the surplus income derived by the private prison operator can be distributed. The Committee noted in paragraph 98 of its 1979 General Survey on the Abolition of Forced Labour that this requirement is not limited to work outside penitentiary establishment but applies equally to workshops operated by private undertakings inside prisons; consequently, it applies to all work organized by privately run prisons.

The use of the labour of convicted persons in such workshops would be compatible with the Convention only if it were subject to the freely given consent of the prisoners concerned and guarantees as to the payment of normal wages, etc. The Committee notes that the rate of remuneration of prisoners is ten times lower than the minimum wage. Even taking into account that, according to the Government, the prisoners are acquiring work skills and experience, the rate would also be significantly lower than that applicable to workers undergoing training. The Committee also observes that prisoners would not be encouraged to be productive by such a low rate of remuneration. The practice of the supervision and control of public authority would also have to be examined carefully, as the Convention does not allow a full delegation of supervision or control to a private business.

5. With reference to paragraphs 97 and 98 of its 1979 General Survey and paragraphs 116 to 125 of its 1998 General Report concerning prison labour in privately run prisons, the Committee asks the Government to provide in its next report information on measures taken or envisaged to ensure, both in law and practice, that prisoners working for private employers offer themselves voluntarily without being subjected to pressure or the menace of any penalty and subject to the mentioned guarantees. It would be grateful if the Government would also, in the light of the Convention's requirements, continue to supply information about labour in non-state prison facilities in jurisdictions other than Victoria, in the light of the comments made above.

[The Government is asked to report in detail in 1999.]