Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

Referring to its earlier comments, the Committee has noted the information supplied by the Government in its 2002 report. It has also noted the comments on the application of the Convention made by the Australian Chamber of Commerce and Industry (ACCI) enclosed with the Government’s report.

Article 1(1) and Article 2(1) and (2)(c) of the Convention.
Privatization of prisons and prison labour.

1. In its earlier comments, the Committee noted that private prisons existed in Victoria, New South Wales, Queensland and South Australia, while there were no prisons administered by private concerns under the federal, Tasmanian, Northern Territory and Australian Capital Territory jurisdictions. The Government indicates in its 2002 report that, in Western Australia, the state’s first privately managed prison was opened in 2001 and run under contract by the Australian Integration Management Services Corporation (AIMS Corp), a private prison service provider, but was still to be controlled by the Department of Justice. 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.

2. From the Government’s 2002 report there appears to be little change in national law and practice during 2000-02 with regard to the work of prisoners for private enterprises. The Government reiterates that privately managed prisons in Australia remain under the control of a public authority in that the Government establishes guidelines for work in prisons, carries out inspections and imposes penalties for breaches. The private managers must operate within these guidelines, which apply to both publicly managed and privately managed prisons, and prisoners are therefore at the "disposal" of the private contractor only in a very literal sense, and there is no material difference in work obligations or arrangements for prisoners between public and private prisons.

3. The Committee has noted the Government’s repeated indications in its reports that, in Victoria, prison labour is carried out under the supervision and control of a public authority (the Secretary of the Department of Justice), and that prisoners remain in the "legal custody" of the state; the Office of the Correctional Services Commissioner (OCSC) within the Department of Justice retains full responsibility for the classification and placement of prisoners across the system, and for the monitoring of prisoner welfare and management in accordance with service standards and requirements of the Corrections Act. The Government believes the comprehensive state control and supervision of convicted prisoners in Victoria, as ensured by rigorous law and practice, places the work carried out by such prisoners outside the Convention’s definition of "forced or compulsory labour". The Committee has also noted the Government’s renewed statement that the Victorian Government stepped in to take control of the Metropolitan Women’s Correctional Centre (MWCC) in October 2000 after a number of defaults relating to operations at the facility were not resolved by the owner-operator, Corrections Corporation of Australia (CCA), and on 2 November 2000 the Government announced that agreement had been reached with the CCA to transfer the ownership and management of the MWCC to the public sector.

4. In its 2002 report, the Government again referred in detail to prison labour in private prison facilities in Victoria, New South Wales, Queensland and South Australia, making special emphasis on 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). As regards conditions of work of such prisoners, the Government takes the view that "it is completely unrealistic to suggest or expect that inmates might be remunerated in accord with open market remuneration conditions" (New South Wales), "it is anachronistic" to suggest that such prisoners should experience conditions of employment approximating a free employment relationship, since no employment relationship exists between a privately operated facility and prisoners (Queensland), and "it would be inequitable to treat prisoners in privately operated prisons more advantageously than those in state-run prisons" (Victoria).

5. While having noted these views and comments, the Committee wishes to recall the following. Firstly, that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers (including privatized prisons and prison workshops), even under public supervision and control. 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. The Committee has always made it clear that the two conditions are cumulative and apply independently, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely, that the person is not "hired to or placed at the disposal of private individuals, companies or associations".

6. Secondly, the conditions of employment are not required to be exactly the same as in the open market but to "approximate" a free labour relationship (general observation, 2001, point 10). The Committee again refers in this connection to the explanations given in paragraphs 127-143 of its General Report to the International Labour Conference in 2001 and in points 5-11 of its 2001 general observation under the Convention, where it pointed out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only when such work is performed in conditions approximating a free employment relationship; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc.

7. The argument about "conditions approximating a free employment relationship" should not divert attention from the fact that in privately operated prisons in Victoria, New South Wales and South Australia even the formal consent of prisoners to work does not appear so far to be asked for. In this connection, the Committee would appreciate it if the Government would indicate how such freely given consent of the prisoners concerned is guaranteed in the privately operated prison in Western Australia, where, according to the Government’s statement in the report, the creation of the private prison would not introduce any instances of forced labour as defined in the Convention.

8. In the light of the above considerations, and noting also the Government’s statement in the report that Australia strongly supports the principles of Convention No. 29 and does not seek in any way to undermine the application of these principles, the Committee reiterates its hope that the necessary measures will be taken to ensure observance of the Convention and that the Government will soon be in a position to report the progress achieved in this regard.

Article 25. Further to its previous comments concerning the coming into force of the Federal Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (the Slavery Act), which addresses the growing and lucrative international trade in people for the purpose of sexual exploitation and contains new provisions directed at slavery, sexual servitude and deceptive recruiting, the Committee has noted from the Government’s 2002 report that New South Wales, South Australia, the Northern Territory and the Australian Capital Territory have enacted the state/territory components of the sexual servitude legislative regime. The Government indicates that there have so far been no prosecutions under the Federal Act. The Committee would appreciate it if the Government would continue to provide information on the application in practice of the new Federal Act and complementary state and territory legislation, as well as on the other aspects of law and practice concerning the trafficking in persons that were raised in the Committee’s 2000 general observation under the Convention.