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

The Committee has noted the Government’s report. It has also noted the comments on the application of the Convention submitted by the Australian Council of Trade Unions (ACTU) in a communication dated 1 September 2008, in which ACTU expressed concern about the vulnerable situation of temporary overseas skilled workers, who are not adequately protected from exploitation and sometimes subjected to forced labour. According to ACTU, Australian trade unions and the media have reported numerous cases, in which workers on temporary visas (under the 457 visa scheme) have been denied wages or had their wages illegally reduced to pay for recruitment or migration agent fees and airfares, have been forced to work long hours without adequate meals or rest breaks, have been forced to work in unsafe workplaces and have been threatened with deportation if they seek to enforce their rights.  The Committee has noted that this communication was forwarded to the Government, on 18 September 2008, for any comments it might wish to make on the matters raised therein. The Committee hopes that the Government will supply its comments with its next report.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. Privatization of prisons and prison labour. Work of prisoners for private companies. In comments it has been making for a number of years concerning the privatization of prisons and prison labour in Australia, the Committee pointed out that the privatization of prison labour transcends the express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. The Committee 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 Committee asked the Government to take the necessary measures to ensure observance of the Convention, such as, for example, to provide that any prisoners working for private enterprises offer themselves voluntarily without being subjected to pressure or the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free employment relationship. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved.

The Committee notes with regret that the position of the Government remains unchanged and that the report repeats the statements by the Government already noted in its previous comments. The Committee observes that there appears again from the Government’s report to be little change in national law and practice, during the reporting period 2006–08, with regard to the work of prisoners for private enterprises. The Government reiterates its view that its law and practice comply with the Convention, given that privately managed prisons remain under the supervision and control of public authorities, and that the private sector has no rights in relation to establishing conditions for the work of prison inmates, such conditions being established by the public authorities. It follows from the report that no Australian jurisdiction is currently considering amending its law and practice.

In its earlier comments, the Committee 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. In its latest report, the Government again refers to prison labour in private prison facilities in New South Wales, Queensland, South Australia, Victoria and Western Australia, laying special emphasis upon the fact that prisoners accommodated in privately operated facilities are under the supervision and control of a public authority, as required by the exemption in Article 2(2)(c). The Government reiterates the view that prisoners are not “hired to or placed at the disposal of private individuals, companies or associations”, since the “legal custody” of prisoners has not been transferred to a private provider of prison services, and sentenced prisoners remain in the legal custody of the Secretary to the Department of Justice until they are released from prison (Victoria). However, as the Committee noted previously, the Government recognized in its earlier report that “prisoners are at the ‘disposal’ of the private contractor only in a very literal sense”.

In this connection, the Committee again draws the Government’s attention to the explanations concerning the scope of the terms “hired to or placed at the disposal of” contained in paragraphs 56–58 and 109–111 of its 2007 General Survey on the eradication of forced labour and observes that these terms cover not only situations where prisoners are “employed” by the private company or placed in a position of servitude in relation to the private company, but also situations where the companies do not have absolute discretion over the type of work they can request the prisoner to do, since they are limited by the rules set by the public authority, and where the performance of work is “merely one of the conditions of imprisonment imposed by the State”. The Committee also refers to paragraph 106 of its 2007 General Survey, where it considered that the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons; consequently, it applies to all work organized by privately run prisons. 

Referring also to the explanations in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above, the Committee points out once again 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 provided 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.

As regards the question of voluntariness, the Committee previously noted that in privately operated prisons in Victoria, New South Wales and South Australia the formal consent of prisoners to work does not appear, so far, to be asked for. It notes, however, that the Government confirms its previous indication that, in New South Wales, employment of inmates in correctional centres (including Junee Correctional Centre, the only privately operated facility) is voluntary on the part of the inmate and there are no incidents of forced labour. The Committee also notes the Government’s indication that, in South Australia, where prison labour is compulsory both inside and outside the correctional institution (section 29(1) of the Correctional Services Act 1982, division 6), prisoners at Mt Gambier Prison (South Australia’s only privately operated prison) apply in writing to undertake work programmes.

The Committee has also noted the Government’s repeated indications that, in Queensland, prisoners are not forced to participate in approved work activities: though no formal consent of prisoners is required, the work programme is a voluntary initiative and there are no ramifications or negative effects for a prisoner for refusal to participate in such a programme. As regards Western Australia, where the legislation requires prisoners to work (section 95(4) of the Prisons Act, as amended in 2006), the Government indicates that the relevant provision has not been enforced, and the prisoners are not forced to participate in work programmes (even in privately run prisons, like the Acacia Prison), though they are encouraged to participate.

While noting these indications concerning positive trends of practical application of existing legislation in certain Australian jurisdictions referred to above, the Committee reiterates its hope that measures will be taken to ensure that freely given and informed consent is required for the work of prisoners in privately operated prisons, as well as for all work of prisoners for private companies, 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. Furthermore, in the context of a captive labour force, having no alternative access to the free labour market, such “free” and “informed” consent needs to be authenticated by the conditions of work approximating a free labour relationship, as regards wage levels (leaving room for deductions and attachments), social security and occupational safety and health.

In the light of the above considerations, the Committee trusts that the necessary measures will be taken in all Australian jurisdictions, both in law and in practice, to grant prisoners working in privately operated facilities and other prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument, and that the Government will soon be in a position to report the progress made in this regard.

As regards those jurisdictions where, according to the report, prisoners are not forced to participate in work programmes, the Committee asks the Government to indicate how “informed” consent of prisoners to work for private companies is achieved in practice, what measures are taken to ensure that such consent is freely given and what remedies are available to a prisoner if the consent is alleged not to be freely given.

Please also provide information on the practical impact of the recommendation of the Australasian Correctional Industries Association’s Code of Practice to establish an independent consultative body which includes representatives of industry, unions and the community to monitor the development and operation of correctional industries, which was referred to by the Government in its report, as well as information on any other measures taken or envisaged to ensure compliance with the Convention.

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