Forced Labour Convention, 1930 (No. 29) - Australia (Ratification: 1932)
Protocol of 2014 to the Forced Labour Convention, 1930 - Australia (Ratification: 2022)

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative recalled that the issue of Australian privately managed prisons was considered by the Committee in 1999 and no finding was made against the Government. His Government had also complied with the Committee's request to provide more detailed reports and accordingly submitted a report of over 50 pages. Since then no significant developments were reported to have taken place. He recalled that the prison jurisdiction in the country pertained to the competence of constituent States - a fact which made it difficult, if not inappropriate, to address the prisons' provisions in each jurisdiction. He outlined three main considerations for not agreeing with the interpretations given by the Committee of Experts to the Forced Labour Convention, 1930 (No. 29). When the Convention was formulated in 1930, the ILC did not have the case of privately managed prisons in mind. The Government was therefore of the view that the ILO, in order to remain relevant to the times, needed to take into consideration modern managerial methods. The reality of privately managed prisons existed and if the Committee of Experts' comments were accepted, prisoners would either no longer have access to work, or such prisons would have to close. Prisoners were required to work in accordance with guidelines established by the Government and these guidelines applied equally to both publicly and privately managed prisons. As such, privately managed prisons in Australia must remain under the control of a public authority. The aforementioned government guidelines provided for the carrying out of inspections and addressed the issue of work in prisons as well as the penalties imposed in case of breach of contract. In Australia, the Government paid contractors to manage prisons and at the same time provide meaningful work for prisoners to assist in their rehabilitation. The prisoners were not "hired out to or at the disposal of" the private contractor and payments to the contractor did not relate to the output of the prisoners. In other words, there was no employment relationship. The responsibilities for prison management in the case of privately managed prisons were normally spelt out in a contract wherein the private firm was responsible for the day-to-day management of the prison while the Government, through its prison agency, retained the responsibility for the legal custody of prisoners at all times, as well as the responsibility for establishing the rules governing the treatment of prisoners. Where it was found that prisoners were exploited through their labour to the benefit of the contractor, the Government could decide on the termination of the contract. The speaker renewed his appeal for a new interpretation of the Convention - an interpretation which would protect prisoners from situations of servitude while recognizing and supporting modern correctional policies.

The Employer members recalled that the Committee of Experts had provided its views on the topic of work in private prisons in a lengthy section in the general part of its report of 2001, in spite of the fact that only a few governments had supplied a report on this issue. The lack of responses thus made these reflections theoretical. They further observed that the Committee of Experts, in its view on the topic, always referred to a Memorandum of the ILO of 1931, published in 1932. They pointed out that the Memorandum had been established at the request of the League of Nations with regard to the "Basic rules concerning the treatment of prisoners", which had been adopted by the International Commission for Prisons. This Memorandum was therefore not part of the preparatory works to the Convention, and neither was it an authentic interpretation of the Convention adopted by the Conference in 1930. Moreover, it was indisputable that neither the Committee of Experts nor the Office had the mandate to provide for authentic interpretations of Conventions.

Referring to Article 2, paragraph 2(c), of the Convention, the Employer members noted that this provision required to be interpreted in a restrictive manner, so that the provision was applied only in the event that the prisoner was placed at the free disposal of the private employer without any supervision by the State. Inversely, the collaboration between the State and the private employer should be admissible, if the State adopted regulations for the carrying out of the work of the prisoner, and would control the observance of these regulations. Turning to the question of consent, the Employer members pointed out that the Committee of Experts held the view that it was not forced labour if the prisoner worked with his or her consent and on a voluntary basis for a private employer. However, the Committee of Experts set unrealistically high requirements for determining free consent. According to the Committee of Experts, willingness to volunteer would have to be real and not simply an alternative to, e.g. prisoners remaining confined in their cells for unreasonably long periods, having no alternative to boredom, or being disadvantaged in any early release programme because of failure to undertake work. The Employer members thought that this approach was rather absurd, for normal citizens outside prisons also had to bear the negative consequence when they decided not to work. Therefore, in assessing whether prison labour in a privatized prison was voluntary, the Committee of Experts believed that a number of indicia might be considered. These included the formal consent and the terms of the conditions under which the labour was performed and whether those conditions approximated a free employment relationship. However, the difficult question which arose was how closely conditions were required to approximate a free labour relationship. In this respect, the Employer members noted that the Committee of Experts had not considered the evident lower productivity of prisoners, and that enterprises hiring prisoners undertook particular risks: prisoners were not covered by liability insurance against any damages which might occur, their professional skills did not always correspond with the requirements of the work to be performed, and the length of employment was uncertain. In the end, the Committee of Experts' report formulated a more realistic requirement that working conditions should not be exploitative. In this particular issue, the Employer members agreed with the views of the Committee of Experts.

The Employer members recalled that in the past, entrepreneurs who requested prison labourers had to pay the State for gaining access to them; today, the State had to offer certain incentives to the entrepreneurs so that the they would be prepared to employ prisoners. By providing work in prisons, the State was complying with a moral obligation to assist in the rehabilitation and reintegration of prisoners and to help maintain their vocational skills. They noted that in times before the recognition of the free market economy, private enterprises were under wholesale suspicion to exploit their workers. This would be an explanation for the drafting of Article 2, paragraph 2(c), of the Convention providing that the prisoner was not "hired or placed at the disposal of private individuals, companies or associations". It was clear that prisoners should not be exploited when working for private employers. However, this wording showed that the Convention did not intend to prohibit in general the performance of labour for private employers by prisoners. A reading according to the ordinary meaning rule was the right approach in interpreting this Convention. In conclusion, the Employer members said that the performance of work by prisoners for private employers was admissible, provided that said work was carried out according to rules adopted by the State and under the supervision and control of the public authority. Moreover, the conditions of work did not need to be equal to those of a free working relationship, but should not be exploitative. With regard to the case of Australia, the Employer members noted that the privately managed prisons remained under the control of the public authority in that the Government had established guidelines for work in prisons. The Government carried out inspections and imposed penalties for breaches. Therefore, the Employer members believed that the requirement of voluntariness was satisfied if the work to be performed was appropriate and not exploitative. In conclusion, they hoped that an agreement could be reached on the meaning of the Convention in this matter which corresponded to today's reality.

The Worker members stated that they would not repeat their full position from the 1999 discussion of this case as it appeared that the Government representative and the Employer members had done. It was not productive to simply stick to a particular position and not move forward. They recalled that in the debate on privatization of prison labour so far, there had been four key concepts: supervision and control of a public authority over prison labour; the irreconcilability with the Convention of prisoners being hired to or put at the disposal of private individuals, companies or associations; prison labour conditions approximating the conditions of a free employment relationship; and freely given consent by the prisoner. They underlined that the first two were considered to be cumulative and to apply independently. Further issues that had been raised were whether or not the Convention was relevant to the issue of private prison labour and the question of punishment versus rehabilitation.

With respect to the comment by the Employer members that this case should not have appeared before this Committee, they refused to accept the allegation made by the Employers that the Committee paid attention to this case at the expense of very serious violations of the Convention. In the past the Committee had always dealt with the latter, it did so this year, and it would certainly continue to do so in the future. Putting this case on the list once again simply testified that the Committee saw the value of the Committee of Experts examining new developments in the field of forced labour. The Committee of Experts had raised the important question of whether the Convention was relevant to this new phenomenon and they should be commended for this, not criticized. Referring to a comment by the Government representative, the Worker members stated that they were convinced that the Committee of Experts did not have a hidden agenda on this question. Neither would the Committee of Experts have an interest to paint a black picture of Australia, and furthermore the nationality of the Chair of the Committee of Experts was a guarantee that the Experts would not misunderstand the situation in Australia. He deplored that the Government had been so completely insensitive to the observations and the recommendations of the Committee of Experts. The fact that the Government of a highly industrialized country took this attitude set a very bad example for other member States and could undermine the ILO's supervisory system. With the independent, objective and impartial work of the Committee of Experts as its cornerstone, this system was a precious thing, superior to international supervisory mechanisms within and without the ILO. They recalled that if States really thought that the interpretation of a Convention was wrong and unfair to them they could turn to the International Court of Justice. This rarely occurred, they pointed out, because governments knew all too well about the high quality of the Experts' interpretation and, by consequence, that they could very well lose the appeal. France, Switzerland, Argentina and Colombia were examples of countries which had turned to the observations of the Committee of Experts, so sharply criticized by the Government, to adjust their law and practice. The Worker members urged the Government to reconsider its position, to take into account the positive developments in other countries, and to turn their polemical approach of the issue at stake into one of dialogue with the ILO. That was the way to make progress and to get out of the vicious circle we were in now.

The Employer member of Australia expressed his support for the statement made by the Government representative and by the spokesperson for the Employers. In addition he wished to underline three points. First, the operation of private prisons had not been contemplated at the time when the Convention was framed and adopted. It was therefore inappropriate to bring such prisons within the scope of the Convention. Second, it was clear that prisoners in these types of private prisons were not hired to, or put at, the disposal of the operators of those prisons. It would be a perversion of language to claim otherwise. The prisoners remained in the custody of the state which retained full responsibility for their treatment and fully controlled their operators in this respect. The prisoners therefore remained under the supervision and control of the public authority. They were not hired to the private operator since there was no employment relationship, and the operators did not have the power of hiring and dismissing such workers. Private prisons therefore fell within the exclusions permitted by the Convention. Third, he noted that work done by prisoners was not done for the profit of its operators, but rather for the purposes of training and rehabilitation. For these reasons, he concluded, the observation by the Committee of Experts should be treated with considerable caution.

The Worker member of France said that he was surprised to hear some of the comments that had been made which called into question the objectivity of the Committee of Experts. If governments had not referred cases to the International Court of Justice since it began its work nearly 70 years ago, it was because they knew that the quality of the analyses made by the Committee of Experts was incontestable. The privatization of prison labour, such as was practised by Australia, extended well beyond the protective provisions of the Convention. Yet the Government believed that the modalities governing the private management of penitentiary labour complied with the Convention, and that it was unrealistic to expect that inmates might be remunerated in accord with open market conditions. However, in order to favour their subsequent reintegration into society, the employment conditions of prisoners needed to be as close to open labour market conditions as possible, even if they could not be identical, given the prison environment. If those conditions were not met, that constituted forced labour as well as unfair competition with regard to free workers. Prison labour needed to contribute to training and rehabilitation of persons, and not enable private investors to profit as much as possible from the work of prisoners. He wondered what the situation was like in Australia, and said that an in-depth study on how private prisons operated was necessary. In some states, especially Victoria, work was imposed on detainees without their consent, and working conditions were substantially inferior to those for the open market. That was a clear case of forced labour and was in breach of the Convention. The Government should thus urgently adopt the appropriate measures by following the example of the good practices in other countries and turning to the good technical offices of the ILO. That should be reflected in the conclusions.

The Worker member of the United Kingdom stated that it was of deep concern to him that governments claimed to uphold the authority of the ILO's supervisory mechanisms, but when the Committee of Experts reached a conclusion they disliked, those governments said the Committee was wrong and thus should be ignored. He recalled the criteria which the Committee of Experts considered that they had to apply if the relationship between the prisoner and the private company was to approximate to a free employment relationship and be acceptable under Article 2(2) of the Convention. First, prisoners could not be hired out by public or private prisons to private individuals, companies or associations. This was the difference between hiring by and hiring to. Notwithstanding the duty of care of the public prison service to ensure that prisoners were not exploited, the relationship would have to be a direct one between the prisoner and the company. Moreover, there could be no compulsion or duress. Therefore, prisoners who refused to perform work for a private company could not be subject to punishments of any sort, including refusal of parole or privileges. An appraisal of free consent also required further guarantees regarding wage levels, which should be at least the prevailing industry norm or national minimum, social security and labour inspection. The work also had to be subject to public supervision. The existence of a prisons minister, or a civil service director of the prisons system, did not amount to public supervision of the work done by prisoners. Wherever the work was performed - except in the case of legitimate pre-release schemes where prisoners were working outside prisons in normal workplaces - the work had to be supervised by public officials.

The question therefore was if work performed in private prisons, whether for another outside company or in normal prison work, such as food preparation or cleaning, effectively was work or services for that private prison company. The conclusion the Committee of Experts had drawn from this was straightforward - prisoners held in private prisons, where the activities were not supervised by the public authorities, and whether convicted or not, could not be obliged to work. Even an approximation to free consent would be insufficient here because their work was not publicly supervised. The Committee of Experts had repeated clearly that those two conditions were cumulative and applied independently. Therefore, public supervision and control did not remove the requirement to ensure that the prisoner was not hired to or placed at the disposal of private individuals, companies or associations. In the case of privately managed prisons in Australia, prisoners' consent was not being sought and there was neither approximation to a free employment relationship nor public supervision. The prohibition on work for private companies applied a fortiori to all work performed under private supervision, including in privately managed prisons. This did not mean that no work at all could be performed by prisoners for private companies, so long as the conditions of public supervision and genuine free consent in an employment relationship which approximated to a free employment relationship prevailed. Companies which relied on unpaid or barely paid captive labour for the daily running of their prisons, or to produce goods or provide services, would not be viable in a free labour market. Companies which sought to support the rehabilitation of prisoners held in public prisons by providing decent work for prisoners under the conditions required by the Committee of Experts had nothing to fear from the Convention.

The Government member of the United Kingdom stated that her country fully supported the aims of the Convention which it had ratified in 1931. The United Kingdom supported the thrust of the Government representative's statement. Her Government continued to believe that all countries should have in place a robust set of rules and regulations that ensured prison labour was not abused. In applying these rules, both public and private sector prisons and workshops should be subject to rigorous independent inspections, both domestically and internationally. If the current interpretation of the Convention by the Committee of Experts were accepted, the employment of prisoners would no longer be viable in a number of prisons. It was rarely possible within prisons to mirror conditions of free market employment. She did not believe the Convention adequately reflected the changes in penal practice in the past 70 years. Contrary to the intent of the Convention, compliance with the Committee's view would be highly damaging for prisoners and their rehabilitation. Noting that the Australian Government had suggested that a process be established to examine this issue and to settle a modern interpretation, she repeated the suggestion that her delegation had made before, that this matter should be remitted for further consideration in conjunction with international penal practitioners. The United Kingdom stood ready to offer assistance with this work.

The Government member of the United States recalled that her country had not yet ratified this Convention. In the United States there existed instances of both privatized prisons and the contracting out of labour in public prisons. When the Tripartite Advisory Panel on International Labour Standards began to look at the legal feasibility of ratification of both Conventions Nos. 29 and 105 in the mid-1980s, the Panel quickly realized that the Committee of Experts' interpretation of Convention No. 29 made ratification of that Convention unlikely. The review of the Convention was suspended indefinitely and the Panel focused solely on Convention No. 105, which the United States ratified in 1991. A key problem was that, in addition to the Committee of Experts' interpretation being very narrow, it also lacked clarity. This was true particularly with regard to the criteria the Committee of Experts cited for determining whether work in a privatized prison was truly voluntary. In paragraph 6 of their observation in this case, the Committee of Experts had noted that the conditions of employment in privatized prisons were not required to be exactly the same as in the open market, but that they needed only to "approximate" a free labour relationship. Indeed, the Committee of Experts had acknowledged in a previous general observation that in the prison context it was difficult, if not impossible, to reconstitute the conditions of a free working relationship. However, in studying the list of criteria the Committee of Experts developed for making this judgement - some of which were listed at the end of paragraph 6 - it was virtually impossible to see how and where they drew the line. The United States would like to resume consideration of this Convention, but until such time as there existed a clear understanding of precisely what the Convention required regarding prison labour, this would not be possible, even though United States law and practice appeared to be in full conformity with all other aspects of the Convention. The speaker recalled that countries contemplating ratification of ILO Conventions - whether fundamental or technical - needed and deserved to know exactly what obligations they would be making a binding international commitment to uphold. She joined previous speakers in calling on the ILO to establish a process for settling a modern and clear interpretation of the Convention - an interpretation that protected prisoners and preserved the original intent of the Convention, but one that also took into account modern prison practices.

The Government representative, responding to the discussion, stressed that private prisons in Australia remained under the control of public authorities which were responsible for guidelines, inspections and penalties with regard to prison operators. He noted that prisons paid contractors to administer and oversee the work of prisoners. Employers did not pay for access to prisoners, but rather prisons paid companies to handle prison operations. The terms of work were the same in both private and public prisons. Exploitation was not permitted and supervision in private prisons was stringent. In response to the Worker members, he stated that his Government did not consider that the Committee of Experts was wrong in its interpretation of the Convention, but rather that its position on private prisons was confusing and had led to a stalemate. He reiterated that Australia was keen to have this matter reconciled and was prepared to work with the Office and the Committee of Experts in this regard.

The Worker members said that they did not think that the Committee of Experts was infallible. And even if they would think so, they would not say so as that would be an unwise thing to say to the Experts and create a strange impression of the relationship between the Committee of Experts and the Conference Committee. They noted that, contrary to what the Employer member from Australia had said, the issue of private prisons had already been under consideration in 1930, as was noted by the Committee of Experts' comment in its General Report of 2001. The Worker members fully believed that the Convention was an adequate basis for the discussion of the phenomenon of private prisons and were not interested in developing a new instrument.

Indeed the Committee of Experts was also charged with examining new developments in the light of ILO standards. This was exactly what it did in 2001 in its General Report. As had been noted by other speakers, however, many governments had decided not to participate in the preparations for this exercise. Governments, therefore, would mainly be to blame if the Committee of Experts' analyses and interpretations of the Convention in this respect did not sufficiently take into account the real situation in their countries. The Worker members called for dialogue to clear up the confusion surrounding this issue and hoped that Australia would note the positive experience other countries had had in accepting interpretations of standards provided by the Committee of Experts. The conclusions should, exactly as the conclusions of the debate of the case in 1999, request the Government to provide detailed information on the state supervision of privatized prison labour and stress the Convention's requirement that prisoners should not be hired to or placed at the disposal of private companies or individuals. Furthermore, the Committee's conclusions should call for the re-establishment of dialogue on the matter between the Government and the Committee of Experts. This dialogue should be enriched by the discussion of best practices in the countries mentioned earlier.

The Employer members, in response to a statement by the Worker members that the Committee of Experts had found the privatization of prison labour to have been under consideration when the Convention was adopted, recalled that the Committee of Experts had referred to the Memorandum of the ILO of 1931, which was not an official interpretation of the Convention. They recalled the importance of rehabilitation and reintegration measures through work. It was a fact that the State was often unable to provide meaningful work for prisoners. The State was in general a rather unsuccessful employer, and state-run prison work was often stultifying. Therefore, it was in the interest of the prisoner to be employed by a private employer, thereby increasing his or her employability after release. They also emphasized that the Committee of Experts in its analysis of 2001 had not excluded the possibility of employment of prisoners by private employers. In reaction to a point raised during the debate, the Employer members indicated that the employment of prisoners by private employers would not lead to distortion of normal trading conditions. This was proved by the fact that the State usually had to undertake propaganda work and to give incentives to private employers to encourage them to employ prisoners. Finally, the Employer members drew attention to the fact that the analysis of the Committee of Experts in its 2001 report had been based on only a few reports the Government had submitted on the matter. However, they thought that now the Government had entered into the discussion on the subject. They hoped that the Committee of Experts would not ignore the new elements that arose with the discussion, and that discussions with all supervisory bodies would continue. In conclusion, they said that the conclusions had to reflect that the Conference Committee had different views on the issue.

The Committee noted the information transmitted orally by the Government representative and the ensuing debate. It recalled previous Committee discussions of prison labour in private prisons in Australia. There had been little change in the law and practice as transmitted to the Committee of Experts and the Conference Committee in regard to work of convicted prisoners for private enterprises. The Committee hoped that the Government of Australia would continue the dialogue with the ILO and with social partners concerning the practice of prisoners working for private enterprises. The best practice of the ILO members States should be taken into account. The Committee stressed that the Convention prohibited placing prisoners at the disposal of private individuals, companies or associations, unless the work was carried on under the supervision and control of public authorities. The Committee noted the Government's undertaking to fulfil the obligations of the Convention and requested it to take the measures necessary, without delay, to ensure that prisoners working for private enterprises did so voluntarily and were not subject to any pressures or threats. The Committee hoped that a detailed report on the measures taken would be supplied for examination by the Committee of Experts.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative expressed strong support for both the Convention, which was one of the ILO's core standards, and the work of the Committee of Experts. His Government believed that it complied with the Convention in all respects and did not agree that work performed in privately-managed prisons constituted forced labour, since there was appropriate state control and no profit motive in relation to prison labour. While recognizing the right of the Committee to address matters of concern, he nevertheless expressed surprise that the present case had been brought before the Committee at this initial stage of dialogue. The Government had responded willingly, at length, and in a timely fashion to the issues raised by the Committee of Experts in late 1998 and would address those points in a detailed report later in 1999.

The text of the Convention needed to be understood with reference to the intentions of its drafters, in accordance with international law. Its application to modern practices should be examined in that light. It would be a mistake for the Committee to interpret the Convention in a narrow, textual manner, without placing its wording in the context of the instrument's aims. It was clear from the preparatory work that the Convention had grown out of international concern over slavery and so-called "native labour" in colonies. While the need was accepted in certain circumstances for compulsory work to be imposed for public purposes, the ILO had taken a firm position, in view of the serious abusive and exploitative practices which had occurred, that such work should not be imposed for the benefit of private individuals. The contributions of member States on this issue had made it clear that private profit or benefit was the issue which was being addressed. In addition, another recurrent theme had been concern about abusive practices which often occurred when forced labour was made available to private employers.

When developing the Convention, and particularly Article 2, paragraph 2(c), the drafters had discussed the specific issue of penal labour and had noted the problem of abusive practices in some countries under which prisoners were placed at the disposal of private individuals to work in a form of slavery or debt bondage. The concept which the drafters had in mind was clearly that penal labour constituted forced labour in cases where it was farmed out to private employers in the exploitative sense. It was clear from the preparatory work that such "farming out" to private employers had been equated with labour not carried out under government supervision. However, this was clearly not the situation in modern prisons, which were managed by private companies under contract to the Government, in a situation in which the private companies did not stand to benefit or profit from the labour of the prisoners.

In 1930, the Committee which had discussed the proposed instruments had reported to the Conference that prisoners under sentence and labouring under the terms of their sentence did not represent the kind of forced labour contemplated and that, therefore, such labour should be exempted from the terms of the Convention. His Government believed that this exception should apply equally to prisoners held in privately-managed prisons as to those held in public prisons. In each case, the prisoners were under sentence and required to work while serving their sentence.

Although Convention No. 29 was a self-contained instrument, it was applied against a backdrop of developing international law. In supervising compliance with the Convention, attention should therefore be paid to other significant human rights instruments dealing with the same issues in the interests of ensuring cohesive international jurisprudence. For example, article 8 of the International Covenant on Civil and Political Rights, which was more recent than the Convention, provided that the term "forced or compulsory labour" did not include work or service normally required of persons under detention pursuant to the sentence of a court. The United Nations Standard Minimum Rules for the Treatment of Prisoners provided that all prisoners under sentence should be required to work with the objective of rehabilitation and preparing them for life after their release.

It was also necessary to apply the Convention, which had been designed in a very different social and economic context, to the modern world, while remaining true to its aims and principles. The principles and practice of public administration in Australia and a number of other countries had been transformed in recent decades. This transformation had largely been due to pressure on public finances generated by international economic changes, including the economic forces associated with globalization. There had been a shift in the delivery of traditional public services, with emphasis being placed on governments ensuring that publicly funded services were provided efficiently and effectively, rather than actually delivering the services themselves. Against that background, in 1993, the Government of Victoria had launched the New Prisons Project, which sought private sector involvement in the construction and operation of three new prisons.

The interpretation of the exception contained in the Convention for certain kinds of prison labour also required an understanding of the nature of such work. Article 10(3) of the International Covenant on Civil and Political Rights provided that the treatment of prisoners in the penitentiary system should have the aim of their reformation and social rehabilitation. Indeed, the Government of Victoria recognized the causal relationship between unemployment and crime. Employment in prison industries, including service industries, had therefore focused on the development of the work-readiness of a group of people who had experienced long periods of unemployment or limited employment, with the objective that upon their release they would be better equipped to gain employment and integrate more effectively into the community. Prison work programmes, therefore, included a heavy emphasis on work preparation and the development of skills for employment through the practical application of vocational integration and training. Prison managers were required to provide accredited education and training programmes which enabled prisoners to continue training as they moved through the prison system. They also had to allow prisoners to pursue part-time studies which were accredited with outside education providers.

The contemporary circumstances of imprisonment should, therefore, be viewed as a denial of freedom for a specified period, during which work provided an opportunity for rehabilitation and reparation to the community. Prison work was not undertaken in the context of an employment relationship comparable to employment in the wider community. Prison work should not, therefore, be treated as a labour relations issue.

Prison work in the state of Victoria met the two key criteria for prison labour to fall within the exception set out in Article 2, paragraph 2(c), namely that the work was carried out under the supervision and control of a public authority and that the prisoners were not hired to or placed at the disposal of private individuals, companies or associations. The framework for the supervision and control of prisons, including prison work, as established by the Parliament of Victoria, included guarantees of prisoners' rights and the creation of the Correctional Services Commissioner as the public authority for the supervision and control of prisons for adults, whether privately or publicly operated. This legislative framework reflected the commitment of the state of Victoria to upholding the rights of prisoners in accordance with Australia's legal obligations, and was buttressed by the prison services agreements concluded between the Government of Victoria and prison operators. Responsibility and overall authority for the operation of the adult correctional system rested with the Correctional Services Commissioner, who was responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders, as well as for the classification and placement of prisoners across the system and for monitoring prisoner welfare and management, in accordance with the service standards and requirements of the Corrections Act. There were, therefore, numerous and extensive safeguards to ensure that providers delivered the best in correctional facilities and services.

The Government of Victoria did not, therefore, transfer the legal custody of prisoners to private providers of prison services. Prisoners remained in the custody of the state, which retained responsibility for their legal custody and welfare. Supervision and control of all prisons, whether publicly or privately operated, was underpinned by the prison service agreement concluded with the prison operator, which included provision for monitoring the performance of prison operators, including reviews by the sentence management unit of the sentence management plans for individual prisons. The Commissioner monitored the performance of prison providers, both public and private, against the established correctional policy and management standards, which applied to the whole system. The Commissioner was also responsible for issuing authorizations to all personnel working in public and private prisons. No person employed by a private prison operator could supervise or have custodial responsibility over prisoners without the express authorization of the Commissioner. It was, therefore, clear that the Commissioner exercised control and supervision over all aspects of the operation of prisons in Victoria.

The second requirement of Article 2, paragraph 2(c), was that prisoners were not to be hired to or placed at the disposal of private individuals, companies or associations. This covered situations in which the prisoner was either required to undertake work by the operator of a privately-managed prison, or, regardless of whether the prison was privately or publicly operated, in which the prisoner was required by the prison operator to undertake work for the benefit of a private entity. He considered that a prisoner could only be considered to be hired to or placed at the disposal of a private company in cases where the prisoner was employed by the private company, which might be either the prison operator or a third party, or where the prisoner was placed in a position of servitude in relation to the private company. Neither of these circumstances existed in prisons in Victoria. The prisoners were not involved in an employment relationship. The performance of work, unless prisoners were excused by the Correctional Services Commissioner on certain grounds, was merely one of the conditions of imprisonment imposed by the state.

He reaffirmed that the prisoner could not be considered by any means to be a slave of either the prison operator or the third party for whom the work was performed. The prison operators had no legal authority to "hire" the prisoner to a third party company, because the prisoner was at all times under the supervision and control of the Commissioner. The prison operator was, therefore, no more than an agent of the Commissioner for the purposes of organizing work to assist in the rehabilitation of prisoners. Nor did private entities in Victoria obtain any significant economic benefit from the labour of prisoners in private prisons. Whatever argument was used, prisoners in the private prisons of the state of Victoria who were required to work were not consequently hired to or placed at the disposal of private entities.

He added that, under the prison services agreements, any surplus income derived from prison industries did not return to the private prison operator. The agreements stipulated that the operator should ensure that all income from industries was kept separate from the income of the contractor and that any profit from the industries was reinvested in the industry or expended in such other manner as approved by the Secretary of the Department of Justice.

Since the work undertaken in Australian prisons did not come within the definition of forced or compulsory labour for the purposes of the Convention, no issue arose in relation to the other conditions put forward by the Committee of Experts as being relevant to the work of prisoners, such as equal wages with those paid on the market. These issues might be relevant in a situation where labour was imposed on prisoners for private interests in order to ensure that the prisoners were not exploited for the benefit of a private employer. However, they were not relevant where the work in question simply did not come within the term of "forced or compulsory labour" as defined in the Convention.

In conclusion, while recognizing that the Committee of Experts had raised important points, he did not consider that they were sufficiently serious as to warrant urgent consideration by the Conference Committee. He looked forward to the Committee of Experts' further examination of the detailed report on the Convention which would be supplied by his Government, confident that its concerns would be fully and satisfactorily addressed. In thanking the Committee for its attention, he noted that his country had provided a substantive paper to the secretariat for the attention of the Committee of Experts, which reflected the significance placed by his country on ensuring its compliance with such fundamental instruments as Convention No. 29.

The Employer members thanked the Government representative for the comprehensive information which he had provided. Work by prisoners in private prisons and for private employers had become a topical subject in recent years, and the Employer members referred to the comments that they had made on this subject in the general discussion. The Committee was now examining the issue in the context of Australia, not because the application of the Convention raised any particularly severe concerns in that country, but to offer an opportunity to examine the manner in which the question related to compliance with the provisions of the Convention. The Committee of Experts had noted that there were three private prisons in the state of Victoria, where prisoners faced certain disadvantages if they refused to work and received payment for their work which was below the minimum wage. The Government representative had provided a great deal of detail on the subject and had stated that work in private prisons was supervised by the state and the public authorities. This meant that prisoners in private prisons were still under state custody and that the prison relationship was with the state, rather than a private enterprise. The authorities had access at all times to these private prisons, so that they could verify the situation and the relevant documentation. The wage rates were laid down by the state authorities, and any revenue accruing from work performed by prisoners either had to be reinvested in the facilities or authorization had to be obtained from the public authorities for its use.

The Employer members recalled that the Committee of Experts had commented on a number of occasions on the question of the relationship between work performed by prisoners in private prisons and the requirements of the Convention. The Committee of Experts had noted that private prisons existed in several states in Australia and that prisoners who refused to undertake work in them suffered no direct disadvantage or punishment. However, such a refusal was regarded as a failure to participate in rehabilitation activities. This was a fair description of the situation. Article 2, paragraph 2(c), of the Convention was quite clear in this respect. It excluded from the definition of forced or compulsory labour "any work or service exacted from any person as a consequence of a conviction in a court of law, provided 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 Employer members emphasized that work performed by prisoners was indeed based on a conviction in a court of law and did not, therefore, constitute forced labour. It therefore constituted one of the permitted exceptions from the term. However, supervision and monitoring by the public authorities needed to be guaranteed, which was in the interests of the state itself. The Employer members pointed out in this respect that the trend towards the more widespread emergence of private prison administrations could not be compared with the much more complete privatization processes which were occurring in many countries in such areas as telecommunications, railways and air transport. The problem which arose in relation to the Convention was that it did not contain detailed provisions concerning the scope of the supervision and monitoring which was required by the public authorities. It was important in this respect to note that it was not possible to develop a more far-reaching legal interpretation of the provisions of the Convention to establish the manner in which such supervision complied with the requirements of the Convention. The Committee of Experts had referred to a possible requirement that all prisoners would need to freely give their consent to the performance of work in private prisons. However, this was an extension of the provisions contained in the Convention. Indeed, such a requirement would tend to privilege prisoners held in private prisons in respect of those in public prisons, where there would be no such requirement for their consent to work.

With regard to the significance of prison labour for the prisoners themselves, the Employer members hoped that there was no fundamental disagreement on the importance of taking all possible measures to help in the rehabilitation of prisoners, and in particular by giving them the opportunity to perform work. One of the major difficulties experienced by public prisons in this respect was to provide prisoners with sensible and constructive work, rather than the merely menial tasks which were often allocated to them in public prisons. Work was an important part of the rehabilitation process for prisoners and helped them maintain their vocational skills and earn some money, with which they could help to support their families. To some extent, it also allowed them to compensate for the act for which they had been convicted.

With regard to the level of the wages provided to prison workers, the Employer members warned that it was not appropriate to compare such wages with those provided in employment outside prisons. In general terms, private enterprises which provided work in prisons ran a number of risks. They were not covered by liability insurance against any damages which might occur and the level of productivity was usually rather low.

They concluded by stating that the President of the Committee of Experts, in his address to the Committee, had rightly identified this as a subject which the Conference Committee and the Committee of Experts would need to examine more closely in the future. However, adequate information was not yet available to undertake an appropriate evaluation of the issue. In the specific case of Australia, the Committee of Experts had not raised any major concerns and there was no question of any major violation of the provisions of the Convention. The case had been examined by the Conference Committee more as a means of discussing this emerging phenomenon. In its conclusions, the Committee should, therefore, confine itself to a request for the Government to provide information on future developments, as it had already promised to do.

The Worker members thanked the Government representative for the information that he had provided and noted with interest that a more detailed report had been communicated to the Office. They recalled that last year the Committee had discussed the special report of the Committee of Experts concerning the Convention. In this report, the Committee of Experts duly took note of the points of view of the Employer and Worker members regarding the problem of prison labour. It stated that it was aware of the risk of exploitation that prison labour represented. During the general discussion that took place this year the problem was briefly raised, and the Committee of Experts considered that the question of prisoners "hired to or placed at the disposal of private individuals, companies or associations" according to the terms of the Convention, merited fresh attention at the present time. Comments of the Committee on the application of the Convention in privatized prisons in Australia should be placed in this context.

They recalled that prison labour was excluded from the scope of the Convention when two conditions were met: it was "carried out under the supervision and control of a public authority" and the prisoner was not "hired to or placed at the disposal of private individuals, companies or associations". The Committee of Experts noted in paragraph 4 of its report that the two conditions were applied independently and that, therefore, the Convention provided for no exceptions with regard to the second condition. The prohibition was absolute and, as indicated in the 1979 General Survey on this matter, this prohibition applied "equally to workshops which may be operated by private undertakings inside prisons" and, all the more so, to all organized work in private prisons.

With regard to the case under examination, the Australian Council of Trade Unions stated that in all the private prisons of Victoria, the work was placed under the supervision of private operators and the prisoners must work for a private company. The wage and working conditions in prison workshops run and managed by private companies were greatly inferior to those of local companies. According to the information available to the Worker members, local companies, which were often small and medium-sized enterprises (SMEs), were confronted with unfair competition, as the wages in the prison workshop were sometimes ten times lower than in normal companies. Moreover, in practice, the national authorities had no influence on the kind of products manufactured and services rendered in private prisons. These products and services would more and more often enter into unfair competition with those manufactured by local producers. Private prisons and their workshops were managed by several large companies operating at the global level. The Worker members were of the view that this relationship between local SMEs and workshops managed by several large companies was not in conformity with Paragraphs 6 and 16, clause 2 of the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), because the above paragraphs provided that the authorities must take measures to protect the legitimate interests of SMEs and their workers in the context of relations between large and small and medium-sized companies. Moreover, the contents of the contracts entered into between public authorities and large enterprises which operated workshops in private prisons could not be transparent; too often their contents were not accessible to financial authorities and to competing SMEs.

The Government should provide detailed information on the extent of contracts concluded between companies that managed workshops in prisons or the prisons themselves and the public authorities so that the ILO could verify that these contracts did not have a direct or indirect influence on working conditions and the voluntary nature of prison labour. The Worker members considered that there was a lack of transparency that risked damaging the voluntary nature of prison labour in view of the standards for profitability of the large companies that managed these workshops and prisons. In the context of prison labour, the ILO should therefore take into account the provisions of Recommendation No. 189, which referred in its Preamble to Convention No. 29, and more particularly to Paragraphs 6, clause 1(b) and 16, clause 2. The Government should provide all information on measures adopted or contemplated to guarantee the voluntary nature of prison labour and its supervision by the authorities.

The Worker member of Australia stated, in the first place, that Australian workers supported the need for suitable and creative rehabilitation programmes for prisoners. However, the issue of forced labour, wherever it occurred, was an extremely serious matter and the Convention covered fundamental human rights.

He recalled that since 1930, when the Convention had come into force, and 1979, when the most recent general survey on the Convention had been undertaken, there had been significant changes in the prison system. These had included the rapid development of the privatization of the prison system and the globalization of companies, which could hardly have been envisaged in either 1930 or 1979. He therefore welcomed the fact that the supervisory system had been effective in identifying this new and emerging market, to which fundamental labour rights should be applied. In this respect, there could be no doubt whatsoever that Australia had failed to comply with its obligations under the Convention.

He drew the attention of the Committee to the complex commercial arrangements governing the relationship between private companies and the prison authorities in Australia. The globalization process had added to this complexity. By way of illustration, he cited the case of an Australian-based British company which had recently won contracts to run prisons in South Africa. Moreover, with reference to the statement by the Government representative that all profits from prison industries were required to be reinvested in the industry or in other amenities, he emphasized that the situation was much more complex. In the case of goods manufactured in prison for a contractor, the goods were then sold to a wholesaler, then to the retailer and then on to the consumer. This constituted a four-stage distribution chain with a profit margin at each level, all of which was based on the forced and cheap labour of prisoners. More importantly, in the case under consideration, there was a blatant lack of transparency in the commercial arrangements between the Government and private contractors. The Auditor General of Victoria had recently reported to Parliament concerning the privatization of the prison system and its commercial arrangements, and had stated that he was unable to fulfil his role in that respect. He had noted that legislative secrecy provisions rendered any financial information relating to public contracts with private prison operators subject to commercial confidentiality. He had not, therefore, been able to scrutinize or monitor the arrangements.

He also drew attention to other issues which arose in relation to work by prisoners in private prisons. In the first place, in relation to their social protection, the prisoners concerned were not covered by compensation requirements in the same way as other workers. Moreover, their rate of pay was very low in comparison with wages outside the prison system.

Although the Government representative had argued that the operation of prison industries was subject to the supervision and control of the public authorities, he stated that there existed real doubts as to their capacity to fulfil their functions in this respect. Indeed, the Auditor General had concluded that the existing framework did not enable the public authority to operate in an effective and independent manner as an industry monitor. Moreover, the Catholic Commission on Justice and Peace had recently reported that prison officers and managers were over-stretched and struggling with their workloads.

In conclusion, he hoped that the other members of the Committee would give strong support for the consideration by the Governing Body of the possibility of undertaking another general survey on the Convention. He appreciated the attention given to the case by the Committee and supported the finding of the Committee of Experts that the Australian Government had not complied with its obligations under the Convention on this matter.

The Employer member of Australia emphasized that the current conditions relating to work by prisoners had not existed when the Convention had first been developed nearly 70 years ago. This had been explicitly recognized by the Worker member of Australia, and implicitly in the comments made by the President of the Committee of Experts in his address to the Committee, and in paragraphs 71 and 72 of the report of the Committee of Experts. The issue deserved careful consideration, not only in relation to the present case, but also in a more general context. He gave thanks to the Government representative for the information supplied and expressed support for his statement. He also warned that the issue of competition between prison enterprises and certain other commercial establishments were not matters which should be considered when examining issues of compliance with the provisions of the Convention.

The Government member of New Zealand emphasized that the Convention was one of the core international labour Conventions and dealt with one of the worst forms of exploitation of labour. It was, therefore, extremely important that its application should remain relevant in an ever-changing economic and social environment. The comments made by the Committee of Experts on the situation in prisons in the state of Victoria suggested that the relevance of the Convention was being placed at risk in the context of the changing ways in which prisons were managed, and particularly their management by private prison operators in an increasing number of countries.

Although the report of the Committee of Experts contained no evidence that the abuses which the Convention was designed to eliminate were practised in Australian prisons, it nevertheless tentatively concluded that Australia was in breach of the Convention. In its General Report, the Committee of Experts had expressed the belief that the position of prisoners in privately-managed prisons merited fresh attention. It had noted that the last general survey on the subject had been conducted in 1979 and had suggested that the Governing Body might wish to schedule a new survey on the relevant Conventions in the near future. The comments made by the Committee of Experts on the situation in Australian prisons added force to that conclusion.

The Worker member of the United States recalled that the use of prison labour in private prisons was a relatively new issue for the Committee. The practice was growing not only in Australia, but also in the United States and other countries. Indeed, it had become a multibillion dollar global industry in only a few short years. In the United States alone, the sale of the private prison industries would exceed $9 billion by the year 2000 and there were large multinational corporations, many of which were based in the United States, operating private prisons in a number of countries. The practice was spreading rapidly because it was profitable and offered a certain public appeal. Indeed, it was profitable not only for the companies which operated private prisons, but also for those which used prison labour to produce goods for the market.

He noted the argument of the Government representative that prison industries were established to provide work skills and work experience as part of the rehabilitation process to facilitate the integration of prisoners into the labour market upon their release. He stated in this respect that no one was opposed to an effective rehabilitation process. Moreover, the Committee had also been informed that some of the income generated by private prison industries was put back into the industry, thereby benefiting the taxpayer. There were also alleged cost savings. Indeed, labour represented between 60 and 80 per cent of the operating costs of a prison. It was interesting to note in this respect that, in the United States, correctional officers in a growing number of private prisons earned lower wages than the officers employed by state governments, many of whom were members of trade unions, while receiving fewer benefits and no pensions. In contrast, managers and administrators earned much more than their public sector counterparts. The situation in the United States showed that much of the savings made by private prison companies were derived from the use of non-union workers, with the overwhelming majority of private prisons in the United States being located in southern states which were hostile to unions.

In the comments that it had made on the situation in Australia, the Committee of Experts appeared to envision circumstances under which the use of prison labour in private prisons could be consistent with the Convention. Such labour would need to be carried out under the supervision and control of a public authority. It would have to be completely voluntary and should not be placed at the disposal of private individuals, companies or associations. Moreover, the remuneration should reflect normal wages. The clear concern of the Committee of Experts, based on the information received on the situation in Australia, was that these conditions were not being met in that country. The Worker member of Australia had presented a compelling case that this concern was well-founded.

In conclusion, he supported the view expressed by the Committee of Experts that the rapidly growing use of private prison labour merited further attention, both in Australia and in other countries. He also supported the suggestion that a new general survey should be carried out on the Convention, paying particular attention to the use of private prison labour.

The Worker member of Pakistan expressed support for the comments made by previous speakers on the subject and noted that the ILO was carrying out a campaign for the further ratification of the Convention. Although the democratic traditions of Australia were not to be doubted, the statements made by the Government representative had been clearly rebutted by the Worker member of the country. The wording of Article 2, paragraph 2(c), of the Convention left no doubt that prisoners were not to be hired to or placed at the disposal of private individuals, companies or associations. Nevertheless, some 65 per cent of prisoners in the state of Victoria were held in private prisons. Although the Committee of Experts had established a number of conditions which needed to be fulfilled if work by prisoners in private prisons was to be in compliance with the Convention, including the freely given consent of the prisoners concerned and the payment of minimum wages, he emphasized that the remuneration received by the prisoners in Victoria was ten times lower than the minimum wage. Moreover, the Worker member of Australia had provided a clear warning of the dangers of legal and commercial secrecy as it affected the supervision carried out by the public authorities concerning the arrangements by which private enterprises managed prisons. The Convention in question upheld the fundamental freedom of workers not to be subjected to forced labour and, therefore, needed to be applied by all member States. The Government should therefore examine its law and practice to identify those areas which violated the provisions of the Convention.

The Government member of the United Kingdom confirmed that his Government took a strong interest in the issue of prison labour and welcomed the advice of the Committee of Experts on the application of the Convention. He noted the detailed information provided by the Government representative and took account of the clear positions stated by the Worker and Employer members.

He emphasized that responsibility for prison administration rested exclusively with governments. In this respect, the United Kingdom had much in common with Australia and a number of other countries in seeking to provide decent, constructive prison regimes geared to the rehabilitation of offenders. Prison privatization was a recent development which clearly could not have been taken into account in 1930, when the Convention was drafted. He fully shared the concern expressed by the Committee of Experts that convicted prisoners should not be subjected to exploitation, but found it difficult to accept that work and training carried out in privatized prisons should, by its definition, constitute forced labour, particularly where the regulations and conditions were identical to those in publicly managed prisons. In the general discussion, he and a number of other Government members had emphasized the need for a realistic and up-to-date interpretation of this fundamental Convention. In the current case, it would be premature to draw definitive conclusions until recent developments had been reviewed in a general survey on forced labour. He hoped that the Committee's conclusions would fully reflect this position.

In addition, the Government member of the United States pointed out that this case provided an opportunity to examine the important aspects of prison labour, a key principle in one of the fundamental Conventions. The discussion in this Committee and the Committee of Experts' response would assist in keeping the interpretation of Convention No. 29 current. He indicated that Convention No. 29 was adopted in 1930 and the last General Survey had been issued in 1979. Times had changed since then, prisons were different and the work prisoners did was different. In his Government's view, private prisons and workshops in prisons were considered a public good benefiting both the prisoner by providing rehabilitation through job training, and the Government by reducing the taxpayers' burden of funding public prisons. He was encouraged by the Committee of Experts' request for information from ratifying countries on their present position in law and practice with regard to the work of prisoners in private prisons and for private contractors. He also supported the call for a new General Survey on forced labour, and in particular prison labour. On the one hand, there was a need to protect prisoners from unjust forms of forced labour, while, on the other hand, there was a need to provide them with some programme of rehabilitation and sustainable job skills, so that they could become productive citizens upon their release; and do that in the most cost-effective way. That balance needed to be reassessed by the ILO to assure that the interpretation of Convention No. 29 regarding prison labour conformed to modern practice. He encouraged the Office and the Committee of Experts to listen carefully and take full note of the Worker, Employer and Government comments on this case.

The Worker member from France observed that the Government representative of Australia did not seem convinced that the Convention applied to prison labour in both private and public prisons. He expressed his disagreement with this position and insisted that this instrument was a fundamental Convention which applied to all. Its importance tended to increase as systems of private prisons were developing. It was thus inappropriate to maintain that this Convention was obsolete and of relevance only in the context of old forms of slavery.

The speaker noted that vocational training and work were well-known elements of rehabilitation of prisoners. Moreover, prisoners frequently had educational difficulties and were in need of training and a development of professional skills. He insisted however, that prisoners remained human beings and that they, therefore, were entitled to benefit from certain rights including those contained in the Declaration of Philadelphia which, inter alia, referred to the right to freely chosen, productive employment. Prisoners were also entitled to a decent salary so they could have some savings for when they left prison, as well as social protection and a pension. If this was not the case how would it be possible for prisoners to reintegrate into society at the end of their imprisonment? The speaker further noted that the meagre salaries paid to prisoners competed with the salaries in the free labour market. Moreover, the emergence of private prisons entailed a troublesome exploitation of prison labourers as the entities engaged in this area were primarily profit-seeking.

The speaker insisted on the fact that the conditions of work of prisoners should abide by relevant established standards. He emphasized that he did not share the views expressed by the Employer members that the Convention should be interpreted restrictively. Finally, he underscored that it was important that the Government submit a detailed report which would thoroughly examine the actual practice and conditions of work in prisons run by private enterprises.

The Government member of Germany welcomed the Committee of Experts' comments according to which labour in private prisons was a new issue and needed to be evaluated in the light of the present situation. Until now, in discussions on prison labour, emphasis had been on its penalizing character as well as unjustified advantages private employers might have if they provided work to prisoners. In this regard, he referred to article (e) of the GATT Regulations which permit the introduction of measures aimed at limiting trade in products produced in prisons. However, the situation had changed. Today, the performance of work by prisoners was recognized as a reintegration factor into society. In this respect, he noted the catalogue of questions raised by the Committee of Experts in its general observations on the Convention. He disagreed with the view expressed by the Australian Government representative according to which performing work in private prisons was not covered by the scope of the Convention. The question of whether or not performing work would comply with the provisions of the Convention remained the same, also with regard to private prisons. In conclusion, he said that 20 years after the publication of the last General Survey on forced labour, the issue needed to be re-examined thoroughly. The Government should, therefore, provide full information on the subject.

The Government member of Canada pointed out that new developments had arisen since the last General Survey by the Committee of Experts on Convention No. 29 in 1979. His Government was supportive of Australia's position which was strongly in favour of the Committee of Experts' proposal for a new General Survey on the Convention which would examine new developments on, for example, the issue of prison labour. Such a survey would provide an up-to-date review of practices in various countries, problems in implementation, and the Committee of Experts' illumination of problem areas. A new survey would be in keeping with the objective of ensuring the current relevance of ILO Conventions and the sharing of information on their application in modern circumstances.

The Government member of Japan indicated that he supported the view of the Government member of Australia that the interpretation of the Convention should be made more flexible in keeping with modern-day realities. A new General Survey should also be conducted on this and other Conventions.

The Worker member of Germany agreed with the Committee of Experts' comments as regard the applicability of the Convention to work performed in private prisons. Since the number of private prisons had increased, it was of crucial importance to apply the principles enshrined in the Convention to private prisons. The use of prison labour was compatible with the Convention only if it was the result of freely given consent by the prisoners concerned and included guarantees as to the payment of normal wages, etc. Although a General Survey on the subject was needed, the evaluation and assessment of this phenomenon should not be delayed until the publication of the General Survey. He disagreed with the statement of the Employer member of Australia, saying that unfair competition resulting from very low wages had affected the application of the Convention. In conclusion, he recalled that there was general agreement that the Convention should prevent unfair competition.

The Government representative stressed that there was a threshold issue, namely that Article 2.2(c) was an exclusion clause. The fact that a prison was a private prison did not automatically involve the applicability of the provisions of the Convention. In other words, if the circumstances that were set out in Article 2.2(c) were in place, then the Convention did not apply in respect of private prisons. There was, moreover, no need to consider the level of wages or the composition of work on prisoners or any other factor since Convention No. 29 was simply not applicable to the private prisons in question.

Certain matters raised such as the provisions of the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), including issues related to competition, while legitimately of interest to the ILO, were not of interest to this Committee. The issue was of forced labour alone. He referred to the comment by the Worker member of Australia that the Auditor-General of Victoria had raised concerns over the contracts for the operation of private prisons in Victoria. There needed to be a clear understanding of the contracts in question. These were those between the State and the private operator for the administration of the prison. The Government of Victoria had indicated that the issue only related to the withholding of the disclosure of prices for commercial reasons. Other aspects such as performance criteria, conditions for control of prisons and related administrative issues were publicly available. These contracts and the flow of profit to the private operators needed to be differentiated from profits arising from the prison industry where the way that the profits were distributed was clearly stated. The issue raised about the profit claim between distributor, wholesaler and retailer was not relevant to any considerations before this Committee.

His Government supported the proposal that a new General Survey be conducted on this matter by the Committee of Experts. This General Survey should focus on a new examination of the issue of prison labour. The application of Conventions needed to be revisited from time to time to ensure their capacity to deal with rapidly changing developments in modern society. In this case, the need for a fresh examination of the issue stemmed in part from changes in public administrative practices. While such a survey was clearly necessary, it was also quite clear that prison labour in Australia was not forced labour even under the current interpretation of the Committee of Experts. The facts provided by the Government of Victoria demonstrated that work in privately managed prisons was carried out under the supervision and control of a public authority and was supported by substantial regulatory framework. Furthermore, prisoners were not hired or placed at the disposal of private entities in the exploitative way that the drafters of the Convention sought to proscribe.

In summary, there was obviously a difficulty in handling the issue of privately administered prisons. The way forth would be for the Committee of Experts to prepare, as soon as possible, a new General Survey on forced labour, focusing on the issues at hand and revisiting their interpretation in the light of the conclusions of that survey. His Government, therefore, suggested that given the uncertainty about this matter, as had been expressed by a number of Government members, Employer members and some Worker members, this matter should be set aside and the Committee should make no findings on the Australian case. It would be appropriate for dialogue to continue in the normal reporting cycle which would enable any developments arising from the survey to be taken into account.

The Employer members noted the lively discussions which showed the general importance of the subject. Although this issue had not been contemplated in 1930 when the Convention had been adopted, it should be taken into account when examining the provisions of the Convention. He noted that the Committee of Experts had not evaluated the entire issue. In this respect, the Employer members supported the statement of the Chairman of the Committee of Experts in the Conference Committee as well as the Committee of Experts' request to the effect that governments should include in their next report the information concerning their current position in law and practice on this issue. Although a General Survey was necessary, the subject should now be examined without further delay. In conclusion, the Employer members supported the Committee of Experts' request for detailed information which could give a realistic picture with regard to the situation worldwide. Since not only Australia was concerned, this Committee should confine itself to request detailed information from the Government.

The Worker members wished to draw the attention of the Committee to two points. First, they insisted that governments respond to all the issues raised in the general observation by the Committee of Experts concerning the Convention, all while fully respecting the principle of tripartism when responding and when preparing reports. The present request for information should be contained in the conclusions by the Committee, so that the Committee would be in a better position to analyse the problems, the trends and the type of guarantees regarding the management and functioning of workshops in prisons. In so doing, governments should take into account paragraphs 70-72 of the General Report of the Committee of Experts as well as paragraphs 112-125 contained in the general part of the Committee of Experts' report of 1998. With reference to the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189), the Worker members furthermore asked governments to take into account the implications of work in prisons and the services and products emanating therefrom on other enterprises that were subjected to labour legislation, and, in particular, on small and medium-sized enterprises. Governments should inform the ILO on the measures taken and procedures engaged at the national level, taking into account the consequences on the employment situation in small and medium-sized enterprises, as well as in other enterprises.

Second, as regards the conditions of work of prisoners, the Worker members insisted that the view of the Committee of Experts was clear, and that conditions of work of prisoners who did not enjoy the rights of free workers, should be elaborated in order to ensure that their working conditions were decent and similar to those of other workers.

The Committee noted the information provided orally by the Government representative, and the discussion which followed. It noted that a detailed written report had been submitted for examination by the Committee of Experts. As concerned prison labour in privatized prisons, it noted the concerns expressed by the Australian Council of Trade Unions that supervision of the work of inmates in privatized prisons in the State of Victoria had been delegated entirely to private operators. While noting the assurances provided by the Government in this regard, the Committee asked the Government to provide detailed information on supervision of privatized prison labour to the Committee of Experts for its continued examination. In addition, the Committee stressed the Convention's requirement that prisoners may not be hired to or placed at the disposal of private companies or individuals, and considered that the extent to which this requirement was respected in Australia should be examined further by the Committee of Experts. The Committee urged the Government to continue to supply information to the Committee of Experts in this regard as well. The Committee also encouraged all governments to reply to the Committee of Experts' general observation on the question of privatized prison labour.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee welcomes the ratification by Australia of the Protocol of 2014 to the Forced Labour Convention, 1930. It hopes that the Government will provide detailed information on its application, in accordance with the report form adopted by the Governing Body.

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 31 August 2021.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons and forced labour practices. Legislative framework. The Committee notes the adoption of the Commonwealth Modern Slavery Act 2018, which defines modern slavery as trafficking in persons and offences of slavery and slavery-like conditions, including forced labour, pursuant to Divisions 270 and 271 of the Criminal Code. It notes with interest that the Act requires large companies and other entities, including the Australian Government, to publish annual modern slavery statements outlining their efforts to assess and address modern slavery risks in their operations and global supply chains. Such statements are publicly available through the Modern Slavery Statements Register. The Committee notes that, in December 2021, the Australian Government published the Commonwealth Modern Slavery Statement 2020–21 which covers the operations and global supply chains of all non-corporate Commonwealth entities.

As regards New South Wales, the Committee notes the adoption of the Modern Slavery Act 2018 (NSW Act) which, among others, provides for the appointment of an Anti-slavery Commissioner, responsible for promoting action to combat modern slavery, and identifying and providing assistance and support for victims of modern slavery. It notes that, for consistency purposes, reporting obligations for companies which were provided for under the NSW Act were repealed by the Modern Slavery Amendment Act 2021 (Amendment Act) . Companies in New South Wales are therefore expected to follow the requirements of the Commonwealth Modern Slavery Act 2018 regarding the annual publication of modern slavery statements.

The Committee notes that, while welcoming the adoption of the new legislation, in its observations, the ACTU expresses concern regarding a certain number of weaknesses, such as: (1) the lack of independent oversight to ensure that companies comply with the Commonwealth Act; (2) the lack of penalties for companies failing to report or act on modern slavery in their supply chains and operations; and (3) the lack of requirements for the Commonwealth to withhold Government procurement contracts or other benefits or support to companies who have failed to report or show they are taking action on eliminating modern slavery from their operations and supply chains. It notes that the Australian Human Rights Commission expressed similar concerns and also regretted the lack of a national compensation scheme for victims of slavery and trafficking in persons (AHRC, Submission to the CESCR, 7 January 2022, paragraph 52).The Committee requests the Government to provide information on the application in practice of the Commonwealth Modern Slavery Act and the New South Wales Modern Slavery Act, including on the impact that reporting requirements may have had in preventing and addressing trafficking in persons and forced labour in operations or services of companies and public entities.

National Action Plan. The Committee notes the Government’s indication, that the National Action Plan to Combat Human Trafficking and Slavery 2015–19 was superseded by the National Action Plan (NAP) to Combat Modern Slavery 2020–25, which identifies five national strategic priorities, namely: (1) prevent, (2) disrupt, investigate and prosecute, (3) support and protect, (4) partner and (5) research. The Government adds that a Monitoring and Evaluation Framework was established in order to track progress against short, medium and long-term outcomes. As regards the work carried out by the expert multi-stakeholder Labour Exploitation Working Group under the National Roundtable on Human Trafficking and Slavery, the Government indicates that the working group formulated 27 recommendations in August 2018, which are currently under consideration by the Government. The Committee welcomes the adoption of the National Action Plan to Combat Modern Slavery 2020-25 and requests the Government to indicate whether the outcomes established under the five strategic priorities have been produced, as well as any assessment of the results achieved and the possible obstacles identified. It also requests the Government to provide information on any actions taken or contemplated as a result of the recommendations formulated by the Labour Exploitation Working Group.

Identification and protection of victims. The Committee previously noted that, in the framework of the Australian Government’s Support for the Trafficked People Programme, all victims of trafficking in persons referred by the Australian Federal Police are eligible for intensive support of 45 days, and a further 45 days for victims who assist with the investigation or prosecution. The Committee notes the Government’s indication that, from July 2017 to June 2021, 259 persons were referred to this programme. Support provided includes individual case management, financial assistance, safe and secure accommodation, medical and social care, counselling, skills development training and referral to legal and migration advice. Furthermore, according to the 2021 report from the Interdepartmental Committee on Human Trafficking and Slavery, from July 2017 to June 2020, a total of 119 visas were granted through the Human Trafficking Visa Framework, to suspected victims of trafficking who have assisted with the criminal justice process and would be in danger if returned to their country. The Committee notes the Government’s indication that the Fair Work Ombudsman established operational processes, created educational resources and delivered training to ensure that Fair Work inspectors identify and refer potential instances of trafficking in persons and slavery, including in collaboration with the Australian Federal Police. While welcoming the measures implemented by the Government to identify and protect victims of trafficking, the Committee notes from a report published in 2019 by the Australian Institute of Criminology, that for every victim detected by authorities, it was estimated that four victims remained undetected (Statistical Bulletin No. 16, pp. 1 and 6). The Committee encourages the Government to continue to strengthen the capacity of law enforcement officials in order to properly identify situations of trafficking in persons. It requests the Government to continue to provide information on the measures taken to ensure that all victims of trafficking in persons are provided with protection and assistance, as well as on the number of victims who have been identified and benefited from rehabilitation and reintegration services.

Law enforcement. The Committee notes the Government’s indication that, in 2020–21, the Australian Federal Police investigated more than 224 reports for matters relating to trafficking in persons and modern slavery. The Government adds that, since 2017, there have been five convictions for trafficking in persons, slavery or slavery-like offences, pursuant to Divisions 270 and 271 of the Criminal Code. In that regard, the Committee notes the Government’s statement that the low number of convictions, compared to other types of crimes, reflects the fact that trafficking in persons and modern slavery often goes unrecognized or unreported, including as a result of evidentiary difficulties and alleged offenders remaining overseas. The Committee notes with concern the persistent low number of convictions regarding trafficking in persons. It requests the Government to strengthen its efforts to ensure that all persons who engage in trafficking and slavery-like practices are subject to prosecutions and that, in practice, sufficiently effective and dissuasive penalties are imposed on perpetrators. In this regard, it requests the Government to provide information on the number of investigations, criminal proceedings initiated, persons convicted and penalties imposed on the basis of Divisions 270 and 271 of the Criminal Code.

2. Vulnerable situation of migrant workers. The Committee previously noted that despite the legislative reforms introduced by the Government, a number of violations of migrant workers’ rights persisted in practice, such as excessive working hours, underpayment of wages, discrimination and threats of dismissal. It notes that, in its observations, the ACTU indicates that forced labour occurs in high-risk industries, including agriculture, construction, domestic work, meat processing, cleaning and hospitality, which employ a high percentage of migrant workers. The ACTU adds that, in recent years, there has been an unprecedented expansion of temporary labour migration in Australia, in particular in the horticulture industry, where a 2021 report showed that over 40 per cent of Australia’s horticulture workforce is on temporary visas. The ACTU expresses further concerns regarding a skilled migration programme that relies excessively on employer-sponsored visas where workers are tied to a single employer, which increases the risk of exploitation. In the ACTU’s views, routine underpayments, which includes employers paying below award rates of pay and not paying superannuation entitlements, is one form of labour exploitation that is rife in Australia, with migrant workers being particularly vulnerable. The ACTU recommends that the Government should introduce a national Labour Hire Licensing Scheme in order to address this situation. The Committee notes, in this regard, the Government’s indication that, in March 2019, the final report was released of the Migrant Workers’ Taskforce, which was established to identify further improvements needed both in law and practice to prevent and address the exploitation of migrant workers. The Government states that significant progress has been made in implementing the above Taskforce’s 22 recommendations. The Committee notes, more particularly, that the Taskforce recommended the creation of a national Labour Hire Registration Scheme in order to require recruitment agencies to register with the Government and employers to use only these registered agencies. The Government indicates that this recommendation has not been implemented at national level yet, but consultations are under way.

In this regard, the Committee notes that such registration schemes have been adopted at state and territory level, more particularly in Queensland (Labour Hire Licensing Act 2017) and South Australia (Labour Hire Licensing Act 2017), Victoria (Labour Hire Licensing Act 2018) and the Australian Capital Territory (Labour Hire Licensing Act 2020). As a result, specific offences were established for providing labour hire services without licence or for engaging workers through an unlicensed labour hire provider. The Committee further notes that, in Queensland and Victoria, new criminal wage theft offences were introduced in the legislation with penalties of imprisonment for employers, through the Criminal Code and other legislation (Wage Theft) Amendment Act 2020 and the Wage Theft Act 2020 respectively. Such offences address situations where employers dishonestly withhold wages and other employee entitlements, or engage in practices to obscure wage theft through falsification of employee entitlement records or failure to keep such records. The Committee notes with interest the legislative measures adopted at the state and territory level in order to protect workers from exploitation. In this regard, it notes that, according to the 2021 Lives in Limbo report from the Migrant Workers Centre, there is a clear correlation between workplace exploitation and temporary visa status, with 91 per cent of workers who experienced wage theft arriving on a visa with no pathway to permanent residency. Furthermore, 65 per cent of temporary visa holders have experienced wage theft and one in four have additionally experienced other forms of labour exploitation.

The Committee further notes the Government’s statement that initiatives to enhance migrant workers’ awareness of workplace rights and entitlements, including through information provided in visa grant notices, have been continued, including in collaboration with the Fair Work Ombudsman (FWO). The FWO promotes compliance with workplace laws by providing education, assistance, advice and guidance to employers and employees, including vulnerable workers, through its website, online tools and resources, and anonymous report tool available in 16 languages. In this respect, the Committee notes that the FWO and the Department of Home Affairs have established an Assurance Protocol to support temporary visa holders to address the FWO for assistance in cases of workplace exploitation. Under the Assurance Protocol, temporary visa holders will usually not have their visa cancelled if they breached their work-related visa conditions because of workplace exploitation, provided they have sought assistance from the FWO. The Committee notes the Government’s indication that, as at May 2021, eight decisions have been handed down relating to contraventions of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, two of which involve the “serious contraventions” provisions, but observes that no information is provided on the nature of the violations detected.

The Committee requests the Government to continue to provide information on the measures taken, both in law and practice, to protect migrant workers from abusive practices and ensure that they are not placed in a position of accrued vulnerability to forced labour. It also requests the Government to provide information on the application in practice of the Labour Hire Licensing Acts adopted in the Australian Capital Territory, Queensland, South Australia and Victoria, as well as the wage theft provisions adopted in Queensland and Victoria, indicating the number of violations detected and the penalties imposed in this regard. Lastly, the Committee requests the Government to provide information on any progress made regarding the development of a national labour hire licensing scheme, and the implementation of the other recommendations formulated by the Migrant Workers’ Taskforce.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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 conditions provided for under Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. However, where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, by giving their free, formal and informed consent and without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee requested the Government to take the necessary measures to ensure that the free, formal and informed consent of prisoners is legally required for work in privately operated prisons, as well as for all work of prisoners for private enterprises.

1. Prison labour in privately operated prisons. The Committee previously 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 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. It also noted that the work performed by prisoners is not limited to community services performed within the framework of work camps, but 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. The Committee notes the Government’s statement, in its report, that transfer of prisoners to a work camp is a management decision made about the best placement of a prisoner according to the Queensland Corrective Services’ (QCS) Custodial Operations Practice Directives (COPDs). Such community services include maintenance of public spaces and infrastructures (painting, mowing, gardening and cleaning) as well as building and restoring structures in public spaces, such as picnic tables. In 2019-20, 193,128 hours of community service were completed by prisoners. According to the Government, the financial value of the work performed in the community by prisoners is representative of making offenders accountable and providing reparation to the community as part of their rehabilitation. As regards participation of prisoners in commercial industries operating on a commercial fee-for-service basis and in service industries to maintain the self-sufficiency of the correctional system, the Government states that convicted prisoners are expected to work as it provides them with the opportunity to acquire vocational skills and contributes to their ability to gain and retain employment upon release. Unacceptable behaviour or work performance may incur the penalty of being placed in lower level employment positions and receiving a lower level incentive payment rate. The Government adds that the COPD on prisoner employment outlines the Queensland Corrective Services’ objective of having convicted prisoners employed wherever possible, and prison industries providing prisoners with meaningful activity through employment on a commercial, fee-for-service basis or prisoner services or community service. According to above-mentioned COPD, Chief Superintendent of a corrective services facility must provide for employment of prisoners by assigning them to available positions using an interdisciplinary approach that considers a prisoner’s behaviour. The Committee notes, from the Report on Government Services 2022 of Australia, that, in 2020–21 in Queensland, 26.3 per cent of the eligible prisoners were employed in commercial industries, while 38.9 per cent of them were employed in service industries (Chapter 8, table 8 A.12). It further notes the Government’s statement that, since 1 July 2021, all Queensland prisons are under public administration and prisoners will no longer be under private administration in that State.

As regards South Australia, the Committee recalls 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 adoption of the Correctional Services (Accountability and Other Measures) Amendment Act 2021, which amended section 29(1) of the Correctional Services Act 1982, but observes that prison labour is still compulsory while remand prisoners are no longer explicitly excluded from this obligation. Furthermore, it notes the Government’s indication that the Adelaide Remand Centre has been privatised and is now privately operated.

As regards Victoria, the Committee previously noted the Government’s indication that prisoners working for both publicly and privately operated prisons have the same rights and entitlements, and that in both cases convicts must consent to undertake work. The Committee notes the Government’s statement that all convicted prisoners are given the opportunity to work in prison industries in order to develop their employment skills. The Government adds that, in privately operated prisons, prisoners are not compelled to work. Vacant positions in prison industries are advertised to prisoners and they have the opportunity to apply for these positions. Prisoners are remunerated for their work in prison industries. If a prisoner refuses to work in prison industries, they are classified as unemployed and do not receive any remuneration but receive essential items and are encouraged to participate in other structured day activities such as training, education or programmes.

As regards Western Australia, the Committee previously noted that prison labour is compulsory under section 95(4) of the Prisons Act 1981 and section 43 of the Prison Regulations 1982. The Government indicated that such provisions had not been enforced as, in practice, prisoners are not forced to participate in work programmes, even in privately operated prisons. The Committee noted that, while section 6.5.3 of Prisons Procedure 302 on work camps provides that prisoners may apply for work camp placement, 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. The Committee notes the Government’s indication that there are currently five prisoner work camps and that the superintendents are aware of eligible prisoners and proactively canvas all prisoners to gather interest for work camp placement. The Department of Justice encourages prisoners to consider work camp placements, however, they have to individually consent to the placement and are appraised of and agree to the conditions of the placement.

In light of the above considerations, the Committee recalls 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. It 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. The Committee expresses the firm hope that the necessary measures will be taken in Queensland, South Australia, Victoria and Western Australia, both in law and practice, in order to ensure that formal, freely given and informed consent of convicts is required, as well as conditions approximating those of a free labour relationship for work in privately operated prisons and for all work of prisoners for private enterprises, both inside and outside prison premises. It requests in particular the Government to:

• (i)provide information on the legislative provisions that regulate the procedures and working conditions of prisoners employed in other prison industries in Queensland, including both commercial industries and services industries;
• (ii)amend section 29(1) of the Correctional Services Act 1982 of South Australia, in order to align it with the indicated practice, and specify whether remand prisoners are now compelled to work;
• (iii)provide information on the legislative provisions in the State of Victoria which provide that prisoners in privately operated prisons are not compelled to work, while indicating how, in practice, it is ensured that the prisoners concerned offer themselves voluntarily, by giving their free and informed consent (as well as examples of the forms through which prisoners may apply for vacant positions in prison industries and any other relevant document signed); and
• (iv)amend section 95(4) of the Prisons Act and section 43 of the Prison Regulations of Western Australia, in order to align the legislation with indicated practice.

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, according to section 33 of the Corrections Act 1997,a prisoner may be directed to work within or outside of the prison premises. Pursuant to Schedule 1 (Part 2.26) of the Act, refusal to comply with such direction is considered a prison offence. The Government indicated that prisoners in Tasmania work for private enterprises on a voluntary basis and must apply for external leave in accordance with the Corrections Act 1997 (sections 41 and 42). The Government added that, in practice, there is no requirement for prisoners to participate in such employment and no penalty for non-participation.

The Committee notes the Government’s statement that there has been no change introduced to align the legislation with the indicated practice but that due consideration would be given to the Committee’s request to amend the Corrections Act 1997.The Committee welcomes this information and once again requests the Government to take the necessary steps in order to align the legislation with the indicated practice according to which prisoners work for private enterprises on a voluntary basis.

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

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 4 October 2017.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons and forced labour practices. (a) Legislative framework and law enforcement. The Committee previously noted the information provided by the Government on the application in practice of Divisions 270 and 271 of the Criminal Code governing “slavery offences”, including slavery and slavery-like conditions, servitude, trafficking in persons and debt bondage. The Committee also noted the adoption of a stand-alone offence criminalizing forced labour pursuant to the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act of February 2013, which aimed at ensuring that an element of movement is not required in order to prosecute forced labour, and that labour exploitation is captured and criminalized on a continuum of seriousness.

The Committee notes the Government’s information in its report that there have been two convictions for servitude under section 270.5 of the Criminal Code, the court decision of which was handed down on 8 February 2017. Two perpetrators were sentenced, respectively to three years’ imprisonment to be released on recognizance after having served 548 days in pre-sentence custody, and two years and six months’ imprisonment to be released on recognizance after having served 541 days in pre-sentence custody. Additionally, one prosecution for forced labour involving four defendants is currently before the courts. The Committee encourages the Government to continue its efforts to ensure that investigations and prosecutions are carried out against perpetrators of forced labour, including trafficking in persons and slavery-like practices, and requests it to continue to provide information on the application in practice of the relevant provisions of the Criminal Code, indicating the number of convictions and specific penalties applied.

(b) Programme of action and multi-stakeholder cooperation. The Committee notes the Government’s information in its report that the National Action Plan (NAP) to Combat Human Trafficking and Slavery 2015–19 was launched in December 2014, which provides the strategic framework for the whole-of-community response to human trafficking, slavery and slavery-like practices, including forced labour. The Commonwealth Attorney-General’s Department is responsible for monitoring and implementing the NAP, in consultation with the Interdepartmental Committee on Human Trafficking and Slavery. The Committee also notes the Government’s indication that it continues to work with civil society to address forced labour and human trafficking. In August 2016, the Government established an expert multi-stakeholder Labour Exploitation Working Group under the National Roundtable on Human Trafficking and Slavery. The Working Group is considering measures to further address serious forms of labour exploitation that constitute slavery and slavery-like practices. The Committee requests the Government to provide information on the implementation of the National Action Plan to Combat Human Trafficking and Slavery 2015–19, as well as on the results of the work carried out by the Labour Exploitation Working Group.

(c) Protection of victims. The Committee notes the Government’s information that all victims of human trafficking referred by the Australian Federal Police are eligible for intensive support of 45 days through the Australian Government’s Support for the Trafficked People Programme. Support provided includes individual case management, safe and secure accommodation, medical and social care, counselling, skills development training and referral to legal and migration advice. A further 45 days of support is provided to victims who assist with the investigation or prosecution. Suspected victims assisting with an investigation and/or prosecution are provided ongoing support until the matter is finalized. It entitles them to additional benefits such as long-term accommodation, welfare benefits, access to medical care and legal services, English language training and assistance to obtain employment and training. Victims who assist with an investigation may also be eligible for a permanent visa to allow them and their family members to remain in Australia. The Committee requests the Government to continue providing information on the measures taken to ensure that all such victims are provided with protection and assistance, as well as on the number of victims identified and who have received rehabilitation and reintegration services.

2. Vulnerable situation of migrant workers. The Committee previously noted the acknowledgment by the ACTU that, since its last submission in 2010, a number of legislative reforms had been introduced by the Government with a view to improving the “subclass 457” visa scheme and strengthening the protection of overseas skilled workers. The ACTU observed, however, that a number of violations of workers’ rights continued to be reported, including with regard to excessive working hours; underpayment of wages; excessive placement fees and interest rates on loans for “457” visa holders; and threats of dismissal on the ground of trade union membership. As regards measures to improve the protection of temporary migrant workers, the Government indicated that, since 2011, the Fair Work Ombudsman has developed information sheets in 27 languages in order to raise the awareness of workers. The Government also indicated that the Migration Act of 1958 had been amended pursuant to the Migration Amendment (Reform of Employer Sanctions) Act of 2013 with a view to strengthening sanctions for the employment of workers in an irregular situation.

The Committee notes from the ACTU’s observations that there are currently more than 1.8 million temporary visa holders in Australia, which equates to around 10 per cent of the total Australian labour force. The ACTU observes that, despite some attempts at improvements to the regulatory framework introduced by the Government, many of the previously raised problems persist. It indicates that temporary migrants are not ensured with access to information about their employment rights, and that those who make complaints against employers are often discriminated against, including on the basis of immigration status. The ACTU also expresses its support for the recent legislative amendments, including higher penalties for employers who violate relevant provisions.

The Committee notes the Government’s information that, in May 2016, it announced a Policy to Protect Vulnerable Workers. The Migrant Workers’ Taskforce was established in October 2016 and tasked with identifying further proposals for improvements in law, law enforcement and investigation, or other practical measures to quickly identify and rectify any cases of the exploitation of migrant workers. The Committee also notes that the Fair Work Amendment (Protecting Vulnerable Workers) Act was adopted in September 2017. The Amendment Act 2017 increases penalties for contraventions of prescribed workplace laws, provides for liability of franchisor entities and holding companies for underpayment by their franchisees or subsidiaries under certain conditions, expressly prohibits employers from requiring their employees to make unreasonable payments, and strengthens the evidence gathering powers of the Fair Work Ombudsman. Moreover, the Government indicates that a Joint Agency Task Force was established in June 2015 to enhance operational and intelligence capabilities to support government efforts targeting organized fraud, illegal work and the exploitation of migrant workers. This Task Force consists of the Department of Immigration and Border Protection, the Australian Border Force and the Fair Work Ombudsman.

At the state and territory level, the Governments of Victoria and South Australia are developing a labour hire licensing scheme. In South Australia, the draft bill in this regard is currently under consultation, which prohibits host employers from using unlicensed labour hire companies. The Committee requests the Government to continue providing information on the measures taken, both in law and in practice, to protect migrant workers from abusive practices and conditions that amount to forced labour. It also requests the Government to provide information on the application of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, in practice, including the violations detected and the penalties imposed in this regard. The Committee finally requests the Government to provide information on any progress made regarding the development of a labour hire licensing scheme in Victoria and South Australia.

Article 2(2)(c). Sentence of community work. The Committee previously requested the Government to provide information on measures taken in Victoria and the Australian Capital Territory to ensure that offenders do not perform community work under a community service order (CSO) for private institutions or organizations without their formal, informed and voluntary consent.

The Committee notes the Government’s indication that, in Victoria, community work is only performed in not-for-profit agencies, which include local and state government institutions. The Government also indicates that the consent of offenders to undertake community work is requested in the assessment phase at court and, if the condition of an alternative sanction is attached to the court’s order, an offender’s acceptance of the order entails consent to perform community service. The Committee further notes that, according to section 37(c) of the Sentencing Act 1991 of Victoria, a court may make a community correction order in respect of an offender if the offender consents to the order.

The Committee notes that no information is provided by the Government regarding the community work in the Australian Capital Territory. However, the Committee notes that the sentencing option allowing some offenders to serve their sentence in the community is only available following the passage of the Crimes (Sentencing and Restorative Justice) Amendment Bill of 2015. As amended, section 77(1)(c) of the Crimes (Sentencing) Act provides that the court must not make an intensive correction order for the offender to serve the sentence in the community (on a community service condition or a rehabilitation programme condition, section 11(5)) unless the offender has given informed consent to serving the sentence by intensive correction. Section 77(2) further specifies that an offender gives informed consent if the offender consents after he/she is given (a) a clear explanation of the intensive correction order that contains sufficient information to enable the offender to make a balanced judgment about whether to or not to consent to serve the sentence by intensive correction; and (b) an opportunity to ask any questions about the order, and those questions have been answered and the offender appears to have understood the answers.

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

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.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 1 September 2014.

Articles 1(1), 2(1) and 25 of the Convention. Legislative framework for forced labour practices. The Committee notes the information provided by the Government on the application in practice of Divisions 270 and 271 of the Criminal Code governing “slavery offences”, including slavery and slavery-like conditions, servitude, forced marriage, trafficking in persons and debt bondage. It notes, in particular, the Government’s indication that, since the adoption of the above provisions in 2005, ten individuals have been convicted of slavery-like offences, four of servitude and three of trafficking in persons. The Committee also notes the information on court decisions handed down and penalties imposed.

In this connection, the Committee notes with interest the adoption of a stand alone offence criminalizing forced labour pursuant to the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act of February 2013. According to the Government, the amendment was adopted with a view to ensuring that an element of movement is not required in order to prosecute forced labour, and that labour exploitation is captured and criminalized on a continuum of seriousness. Taking due note of this information, the Committee encourages the Government to pursue its efforts to ensure that thorough investigations and prosecutions are carried out against perpetrators of forced labour, including trafficking in persons and slavery-like practices, and requests it to continue to provide information on the application in practice of the relevant provisions of the Criminal Code, indicating the number of convictions and specific penalties applied. The Committee also requests the Government to provide information on the measures taken to protect victims and to facilitate their access to immediate assistance and effective remedies.

Vulnerable situation of migrant workers. The Committee notes the acknowledgment by the ACTU that, since its last submission in 2010, a number of legislative reforms have been introduced by the Government with a view to improving the “subclass 457” visa scheme and strengthening the protection of overseas skilled workers. The ACTU observes, however, that despite the measures adopted by the Government, a number of violations of workers’ rights continued to be reported, including with regard to excessive working hours; under-payment of wages; excessive placement fees and interest rates on loans for “457” visa holders; and threats of dismissal on the ground of trade union membership.

As regards measures to improve the protection of temporary migrant workers, the Committee notes the Government’s indication that, since 2011, the Fair Work Ombudsman has developed information sheets in 27 languages in order to raise the awareness of workers, including specific visa holders, on conditions of employment and workplace rights and entitlements. The Government also indicates that the Migration Act of 1958 has been amended pursuant to the Migration Amendment (Reform of Employer Sanctions) Act of 2013 with a view to strengthening sanctions for the employment of workers in irregular situation. The Committee requests the Government to continue to provide information on the measures taken, both in law and in practice, to protect migrant workers from abusive practices and conditions that amount to forced labour. The Committee also requests the Government to provide information on the measures adopted to ensure that all migrant workers can assert their rights, including by means of accessing the competent authorities.

Articles 1(1), 2(1) and 2(2)(c). Work of prisoners for private enterprises. In its previous comments, the Committee referred to section 33 of the Corrections Act, 1997 (Tasmania), according to which a prisoner may be directed to work within or outside of the prison precincts. 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 Committee noted the Government’s statement 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. Noting the Government’s indication that, at the time of reporting, the response of the Government of Tasmania was not available, the Committee once again requests the Government to indicate how the formal, freely given and informed consent of prisoners is obtained in the case of work performed at private enterprises, such consent being authenticated by further guarantees covering the essential elements of a free labour relationship, such as wages, occupational safety and health and social security.

Sentence of community work. With regard to its previous request concerning measures taken in Victoria and the Australian Capital Territory to ensure that offenders do not perform community work under a community service order (CSO) for private institutions or organizations without their formal, informed and voluntary consent, the Committee notes the Government’s indication that, in Victoria, community work is only performed in not-for-profit agencies, which include local and state government institutions. The Government also indicates that the consent of offenders to undertake community work is requested in the assessment phase at Court and, if the condition of an alternative sanction is attached to the court’s order, an offender’s acceptance of the order entails consent to perform community service. In this connection, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted persons are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception provided for in this Article for compulsory work of convicted persons does not extend to their work for private institutions, even if they are not for profit and even if they are under public supervision and control. The Committee also points out that, in order to ensure compliance with the Convention in a situation where community work may be performed for private institutions (for example, charitable bodies), convicted persons must give their formal consent to perform such work. The Committee therefore requests the Government to indicate clearly whether, in Victoria, community work under a CSO can be performed for any private institution acting in the community interest, and to provide a list of authorized associations and institutions, giving examples of the types of work to be performed as community work. Noting the Government’s indication that, at the time of reporting, the response of the Australian Capital Territory was not available, the Committee requests the Government once again to indicate the measures taken in this jurisdiction to ensure that persons performing community work under a CSO are not hired to or placed at the disposal of private individuals, companies or associations (including non-profitable organizations and institutions) without their voluntary consent.

Articles 1(1), 2(1) and 2(d). Powers to call up labour in cases of emergency. In its previous comments, the Committee noted that section 2(1) of the State Transport Act, 1938 (Queensland) concerning the declaration of a state of emergency (which grants the Governor in Council power to call up labour) is worded in terms broad enough to allow its application in circumstances not limited to the cases of emergency in the strict sense of Article 2(2)(d) of the Convention. The Committee also noted the Government’s statement that any such declaration under the above Act must be done by way of a regulation which is subject to the normal Parliamentary scrutiny, and that the declaration must be adopted in appropriate circumstances which reflect the full range of threats that might exist in contemporary society (including, for example, any threat of terrorism or terrorism-related activities). Noting that the Government’s latest report contains no information on this matter, the Committee reiterates its hope that the necessary measures will be taken, in the framework of a future revision of the legislation, in order to limit the scope of section 2(1) of the State Transport Act, 1938, to cases of emergency in the strict sense of the term, as described in the Convention (i.e. to events of war or of a calamity or threatened calamity, and in general to any circumstances that would endanger the existence or the well-being of the whole or part of the population), and requests the Government to provide information on any developments in this regard.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Privatization of prisons and prison labour. Work of prisoners for private companies. 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 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 two conditions are equally important and apply cumulatively: 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. If either of the two conditions is not observed, the situation is not within the scope of the exception provided in the Convention, and, therefore, compulsory prison labour exacted under these circumstances is prohibited pursuant to Article 1(1) of the Convention. However, the Committee has considered that, where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, by giving their free, formal and informed consent and without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention, such work would not fall within the scope of the Convention.

In this connection, the Committee previously 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. It also noted the Government’s reiterated view that its law and practice comply with the Convention, given that prisoners accommodated in privately operated facilities remain under the supervision and control of public authorities, as required by Article 2(2)(c), 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. The Government therefore considered that prisoners are not “hired to or placed at the disposal of private individuals, companies or associations”, since their “legal custody” remains with public authorities until their release from prison. The Government further indicated that no Australian jurisdiction was considering amending its law and practice.

The Committee noted, however, that certain jurisdictions presented some positive trends concerning the practical application of existing legislation. In New South Wales, as regards the issue of voluntariness, the Committee noted that the employment of convicts in correctional centres is voluntary. The Government indicated that, in order to ensure that the “informed” consent of prisoners to work for private companies is obtained, the following measures are in place in the privately operated correctional centres (Junee and Parklea): an inmate wishing to apply for work must complete a form, sign it and present it to the Industry Manager; if an inmate believes that he or she has been forced to work, the inmate may raise the matter with his/her immediate supervisor or the Inmate Development Committee, or lodge a formal complaint before the General Manager of the centre or the Ombudsman’s Office. Additionally, the Government stated that privately operated correctional centres in New South Wales are obliged to abide by the present Convention.

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 Committee also noted the Government’s indication that prisoners at Mt Gambier Prison (South Australia’s only privately operated prison) apply in writing to undertake work programmes. The Government also indicated that prisoners in the Adelaide Pre-Release Centre are allowed to apply for outside employment with private enterprises, and any work undertaken by prisoners outside the centre is voluntary.

As regards Queensland, the Committee noted that prison labour is compulsory under section 66 of the Corrective Services Act, 2006. It also noted the Government’s repeated statement that prisoners are not forced to participate in approved work activities. According to the Government, although no formal consent of prisoners is required, the work programme is a voluntary initiative that provides prisoners with meaningful work projects to develop practical skills in order to assist their reintegration into the community. The Government also indicated that there are no consequences for a prisoner for refusal to participate in a work programme.

With regard to Western Australia, the Committee noted that prison labour is compulsory under section 95(4) of the Prisons Act. It also noted the Government’s indication that this provision had not been enforced, and prisoners are not forced to participate in work programmes, even in privately-run prisons. In its 2011 report, the Government indicated that there were six prisoner work camps established in regional Western Australia for the purposes of prisoners’ rehabilitation. According to the Government, placement in such work camps was voluntary and initiated by the prisoner making a formal written application.

In its latest report, the Government states that convicts in Western Australia are not engaged in an employment relationship with the prisons or the Department of Corrective Services. This has been confirmed by the Western Australian Industrial Relations Commission in the case Ireland v. Commissioner Corrective Services (2009, WAIRC 00123), in which it considered that the relationship between a prisoner and the State under the Prisons Act and associated regulations lacked the character of an employee-employer relationship.

The Committee notes, however, that, in the same decision, the Industrial Relations Commission states that “the element of choice [to perform prison labour] was removed when the appellant became a sentenced prisoner. He could then be required to work. … The use of the word “may” [under regulation 43(1) of the Prisons Regulations] gives a superintendent a discretionary power to direct a sentenced prisoner to work. Once the prisoner is so directed however, he or she may not refuse to do so. This is confirmed by section 69 of the Prisons Act, which makes it a prison offence to not properly perform work.” (2009, WAIRC 00123, paragraph 62). Similarly, in its decision on the same case, the Industrial Appeal Court highlighted that “as sentenced prisoner … the appellant did not perform prison work voluntarily. The effect of section 95 of the Prisons Act and regulation 43 of the Prisons Regulations is that the appellant was obliged to work. In carrying out prison work the appellant was required to carry out work and in the manner in which he was directed to do so by a prison officer.” (2009, WASCA 162).

Against this background, the Committee considers that the absence of a formal employment relationship does not preclude the need to ensure that the consent of convicts is formally required. In this regard, the Committee once again points out 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 given 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.

In light of the above considerations, the Committee expresses the firm hope that the necessary measures will be taken, both in law and in practice in Western Australia and in other jurisdictions 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, 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. The Committee asks the Government to provide information on the progress made in this regard.

The Committee notes 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 requests the Government to indicate how the informed consent of prisoners to work for private enterprises is obtained in practice, what measures are taken to ensure that such consent is formal, freely given and what remedies are available to a prisoner if the consent is alleged not to be freely given.

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

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Articles 1(1), 2(1) and (2)(c) of the Convention. Work of prisoners for private enterprises. The Committee previously noted 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. The Government states in its report 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 do the work. Referring to its observation under the Convention, the Committee requests the Government to indicate, in its next report, how formal, freely given and informed consent of the prisoners concerned to work for private enterprises in Tasmania is ensured, together with further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc.

Sentence of community work. In its earlier comments, the Committee requested the Government to indicate the measures taken to ensure that persons performing community work under a community service order (CSO) are not hired to or placed at the disposal of private individuals, companies or associations (including non-profitable organizations and institutions) without their voluntary consent.

The Committee notes from the Government’s report that, in a majority of Australian jurisdictions, voluntary consent of the persons concerned to perform community work under CSO is either required by the legislation or ensured in practice. Thus, the Government indicates that in New South Wales, the offender signs an agreement to undertake unpaid CSO work, as well as an agreement to commence work in a particular work site. In Queensland, under the Penalties and Sentences Act, 1992, a CSO is made by the court only with the agreement of the offender; placement at any community service site also requires the agreement of the participant prior to work commencement. In Western Australia, under the Sentence Administration Act, 2003, the offender must sign an agreed Community Service Contract prior to commencing work. The Government also reiterates 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. As regards Tasmania, the Government states that, in practice, offenders are required to sign a form indicating that they agree to comply with the conditions imposed by the CSO; they are also directly asked if they are willing to undertake a work under the CSO. The Committee further notes the Government’s indication that, in the Northern Territory, consent by an offender is part of the assessment process, in which the offender must accept and consent to the provision of the CSO project.

The Committee observes, however, that no formal consent of offenders to perform CSO work for private institutions appears to be asked for in Victoria and Australian Capital Territory. The Committee therefore hopes, referring also to the explanations contained in paragraphs 123–128 of its 2007 General Survey on the eradication of forced labour, that the Government will provide, in its next report, information on measures taken or envisaged in these jurisdictions to ensure that offenders do not perform community work under CSO for private institutions or organizations without their formal, informed, voluntary consent.

Articles 1(1), 2(1) and (2)(d). Powers to call up labour in cases of emergency. The Committee previously noted 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 broad 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 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 Committee takes due note of the Government’s view expressed in the report that the declaration of a state of emergency must be adopted in appropriate circumstances which reflect the full range of threats that might exist in contemporary society (including, for example, any threat of terrorism or terrorism-related activities). The Government also reiterates that any such declaration under the above Act must be done by way of a regulation which is subject to the normal Parliamentary scrutiny.

While duly noting these statements, the Committee expresses the firm 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 in general to any circumstances that would endanger the existence or the well-being of the whole or part of the population) 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.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Articles 1(1) and 2(1) of the Convention. Vulnerable situation of temporary migrant workers and measures taken to protect them from exploitation. The Committee previously 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 the ACTU expressed concern about the vulnerable situation of temporary overseas skilled workers, who were not adequately protected from exploitation and sometimes subjected to forced labour. According to the allegations, there were reported cases in which workers on temporary visas (under “the 457 visa scheme”) had been denied wages or had their wages illegally reduced to pay for recruitment or migration agent fees and airfares, had been forced to work long hours without adequate meals or rest breaks, in unsafe workplaces and had been threatened with deportation if they sought to enforce their rights. The Committee has also noted two supplementary communications by the ACTU on the above subject, dated 31 August and 25 October 2010 respectively, as well as the Government’s response received on 30 September 2010.

The Committee notes from the Government’s response that, on 1 April 2009, it announced a package of measures to improve the integrity, transparency and flexibility of the temporary business (“subclass 457”) programme. The Government indicates that the key labour market measures which address the concerns raised by the ACTU, include, inter alia, the development of a market salary framework to ensure “subclass 457” workers are not exploited and local wages and conditions of work are not undermined. This framework is consistent with Australian workplace law and practice which requires all sponsored “subclass 457” and other temporary visa holders with a work right to be engaged in accordance with Australian standards (including awards, agreements, workers’ compensation, occupational safety and health) and receive the same level of protection (in terms of investigation of claims of underpayment or exploitation) as Australian workers. The Government also indicates that, in addition to the Migration Legislation Amendment (Worker Protection) Act 2008, which provides for increased information exchange and cooperation between relevant departments in relation to sponsored temporary visa holders, the Minister for Immigration and Citizenship has announced the appointment of an independent legal expert to provide options for strengthening the employer sanctions legislation. The Government further indicates that in addition to investigation of complaints relating to “subclass 457” and other temporary visa holders, the government departments and agencies (including the Fair Work Ombudsman) have issued fact sheets to increase visa holders’ awareness of their rights.

In its communication dated 31 August 2010 referred to above, the ACTU noted that, since their first submission in 2008, “the 457 visa scheme” had been subject to extensive reform, which was aiming at preventing further exploitation of workers on temporary visas and included strengthening the powers of the relevant authorities to monitor, investigate and penalize non-compliance of employers with “the 457 visa” requirements, as well as the removal of the former inequitable minimum salary level wage rate system applicable to such workers. The ACTU also noted that the Federal Government had consulted with the social partners and the community throughout “the 457 visa scheme” reform process. While welcoming the reform process, the ACTU considered it important to continue to monitor the operation of the new laws and regulations in practice, so as to ensure that they adequately protect the rights of temporary migrant workers in Australia.

The Committee notes this information and hopes that the Government will continue to describe, in its future reports, the measures taken, both in legislation and in practice, to improve the protection of temporary migrant workers. Please provide, in particular, information on the results of the measures taken with a view to strengthening the employer sanctions legislation, to which reference has been made in the Government’s report.

Articles 1(1), 2(1) and (2)(c). Privatization of prisons and prison labour. Work of prisoners for private companies. In comments it has been making for a number of years, the Committee pointed out that the privatization of prison labour falls outside 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 two conditions set forth in Article 2(2)(c) are equally important and apply cumulatively: 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. If either of the two conditions is not observed, the situation is not excluded from the scope of the Convention, and compulsory labour exacted from convicted persons under these circumstances is prohibited in virtue of Article 1(1) of the Convention. 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 previously 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. It appears, from the Government’s report, that there has been little change in national legislation and practice with regard to the work of prisoners in private prison facilities during the reporting period. The Government reiterates its view that its law and practice comply with the Convention, given that prisoners accommodated in privately operated facilities remain under the supervision and control of public authorities, as required by the exemption in Article 2(2)(c), and that the private sector has no rights to determine for itself the conditions for the work of prison inmates, such conditions being established by the public authorities. The Government therefore considers 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 (Victoria) or the Chief Executive of the Department of Correctional services (South Australia) until they are released from prison.

The Committee draws the Government’s attention once again 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. The Committee recalls, referring also to paragraph 106 of the above General Survey, 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.

As the Committee repeatedly pointed out, 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 given 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 (see the explanations provided in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above).

The Committee notes from the Government’s report that no Australian jurisdiction is currently considering amending its law and practice. However, the Committee previously noted some positive trends relating to the practical application of existing legislation in certain Australian jurisdictions referred to above. Thus, as regards the question of voluntariness, it noted that, in New South Wales, employment of inmates in correctional centres is voluntary on the part of the inmate and there are no incidents of forced labour. The Government indicates in its latest report that, in order to ensure that “informed” consent of prisoners to work for private companies is achieved, the following measures are in place in the privately operated correctional centres (Junee and Parklea): an inmate wishing to apply for work must complete a form, sign it and present it to the Industry Manager; if an inmate believes that he or she has been forced to work, the inmate may raise the matter with his/her immediate supervisor or the Inmate Development Committee, or lodge a formal complaint to the General Manager of the centre or to the Ombudsman’s Office. The Government also states that the privately operated correctional centres in New South Wales are obliged to abide by the Forced Labour Convention, 1930 (No. 29). The Committee previously noted the Government’s indication that, in South Australia, where prison labour is compulsory both inside and outside the correctional institution under section 29(1) of the Correctional Services Act, 1982, prisoners at Mt Gambier Prison (South Australia’s only privately operated prison) apply in writing to undertake work programmes. The Government indicates in its latest report that prisoners in the Adelaide Pre-Release Centre are allowed to apply for outside employment with private enterprises, and any outside work undertaken by prisoners is voluntary. In Queensland, where prison labour is compulsory under section 66 of the Corrective Services Act, 2006, prisoners are not forced to participate in approved work activities: the Government indicates that, though no formal consent of prisoners is required, the work programme is a voluntary initiative that provides prisoners with the meaningful work projects to develop practical skills in order to assist their reintegration into the community; there are no consequences for a prisoner for refusal to participate in a work programme. As regards Western Australia, where prison labour is compulsory under section 95(4) of the Prisons Act, the Committee previously noted the Government’s indication that the relevant provision had not been enforced, and the prisoners were not forced to participate in work programmes, even in privately run prisons. The Government indicates in its latest report that there are currently six prisoner work camps established in regional Western Australia for the purposes of prisoners’ rehabilitation. Such work camp placement is voluntary and is initiated by the prisoner making a formal written application.

While noting with interest these developments in the positive trends of practical application of existing legislation in the Australian jurisdictions referred to above, the Committee expresses its hope that the necessary measures will be taken, both in law and in practice, to ensure that formal, 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. The Committee trusts that such measures will be taken in all Australian jurisdictions, both in law and in practice, in order 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.

The Committee also hopes that the Government will not fail to 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 previous 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.

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.

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.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 1(1) and Article 2(1) and (2)(c) of the Convention. 1. Work of prisoners for private enterprises. The Committee has noted from the Government’s 2004 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. Referring to point 5 of its observation under the Convention, the Committee requests the Government to indicate, in its next report, whether prisoners may be directed to outside work for private enterprises and, if so, whether their free and informed 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.

2. Sentence of community work. The Committee has noted from the Government’s 2004 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 notes from the Government’s 2006 report that section 39 of the Sentencing Act 1995 (Western Australia) contains similar provisions.

The Committee draws the Government’s attention to Article 2(2)(c) of the Convention, which expressly prohibits that convicted persons 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 work of convicted persons does not extend to their work for private parties, even under public supervision and control. The Committee therefore requests the Government to indicate, in its next report, whether measures are taken or envisaged 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 any provisions governing a sentence of community work in other jurisdictions and on the application of these provisions in practice.

Article 1(1) and Article 2(1) and (2)(d). Powers to call up labour in cases of emergency. The Committee has noted from the Government’s 2004 report that the provision of section 2(1) of the State Transport Act 1938 (Tasmania), 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 Committee therefore hopes that the Government will adopt the necessary measures 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 provide information on the application of section 2(1) of the State Transport Act 1938, in practice.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Further to its earlier comments, the Committee has noted the comprehensive and detailed information supplied by the Government in its reports received in September 2004 and October 2006, as well as the discussion that took place in the Conference Committee in June 2004.

Article 1(1) and Article 2(1) and (2)(c) of the Convention. Privatization of prisons and prison labour. In its earlier comments 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 has always made it clear that the two conditions apply cumulatively, 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”. The Committee has previously 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.

The Government in its reports has expressed its view that its law and practice comply with the Convention, given that privately managed prisons in Australia remain under the supervision and control of public authorities, and that the private sector has no rights in relation to conditions for the work of prison inmates, such conditions being established by the public authorities. The Government asserts that Australia does not need to establish that work in its privately managed prisons is carried out voluntarily or without menace of penalty, as conditions of work in privately managed prisons are the same or similar to those in publicly managed prisons.

The Committee previously 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 2004 and 2006 reports, the Government again refers in detail to prison labour in private prison facilities in New South Wales, Queensland, Western Australia and Victoria, making 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). In addition, the Government reiterates the view that prisoners are not “hired to or placed at the disposal of private individuals, companies or associations”, since the contractual relationship between the Department of Corrective Services and engaged service providers does not provide for the hire of prison labour (Queensland). In its earlier report received in 2002, the Government recognized, however, that “prisoners are at the ‘disposal’ of the private contractor only in a very literal sense”.

In this connection, the Committee draws the Government’s attention to the discussion concerning the scope of the terms “hired to or placed at the disposal of” in paragraphs 56–58 and 109–111 of the Committee’s General Survey of 2007 on the eradication of forced labour. The Committee 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 General Survey of 2007, where it indicated that the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments. The prohibition applies equally to workshops operated by private undertakings inside prisons; consequently, it applies to all work organized by privately run prisons.

Referring to the explanations in paragraphs 59–60 and 114–120 of its 2007 General Survey referred to above, the Committee points out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention but 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 indicated that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal consent to work for private enterprises in state-run prisons or in privatized prisons and that it should be in writing. Further, given that such consent is given in a context of lack of freedom with limited options, there needed to 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. In addition, there may also be other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether free and informed consent is given. The Committee in its General Survey of 2007 gave examples such as the learning of new skills which could be deployed by prisoners when released, the offer of continuing the work of the same type upon their release or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills. The Committee indicated that all of these factors should be taken as a whole in determining whether consent was freely given and they should be considered and assessed by the public authority.

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, from the Government’s reports received in 2004 and 2006 that, in New South Wales, employment of inmates in correctional centres (including Junee Correctional Centre, the only privately managed facility) is voluntary on the part of the inmate and there are no incidents of forced labour. The Government indicates that, in Queensland, prisoners are not forced to participate in approved work activities: though no formal consent of prisoners is required, prisoners apply (and thereby impliedly consent) to perform approved work activities. As regards Western Australia, the Government indicated in 2004 that the intent of Prison Regulations 43, 44 and 45 is to require prisoners to work, but not force them to do so against their will. It has also stated in its latest report that the maintenance of the private prison will not lead to any instances of forced labour as defined in the Convention. The Committee hopes that the Government will take the necessary measures to ensure that free and informed consent is required for the work of prisoners in privately operated prisons in accordance with the factors outlined by the Committee as set out above.

In particular, the Committee requests the Government to provide, in its next report, information:

n     on the action taken to ensure that the informed written formal consent to perform work is obtained from such prisoners without the menace of any penalty;

n     on the action taken to ensure that such formal consent is authenticated by the existence of objective and measurable factors such as the prisoners performing work in conditions approximating a free labour relationship, together with other advantages such as learning of new skills which could be deployed when released; the offer of continuing work of the same type upon release; or the opportunity to work cooperatively and develop team skills, or other similar factors;

n     on the objective and measurable factors which are to be taken into account by public authorities in order to ensure that voluntariness of the consent is authenticated;

n     on the procedures undertaken by public authorities to regularly assess that such objective and measurable factors are in place in order to ensure that work performed by prisoners is voluntary.

Article 25. Penal sanctions. Further to its earlier comments, the Committee has noted the Government’s indication in its latest report that there have been three prosecutions under way, involving seven defendants, under division 270 of the Criminal Code (which deals with slavery and sexual servitude), as amended by the Criminal Code Amendment (Trafficking in Persons Offences) Act, 2005. The Committee would appreciate it if the Government would provide information on the outcome of these proceedings, indicating the penalties imposed. Having also noted the Government’s indication in its previous report that six of eight states and territories (New South Wales, Victoria, Western Australia, South Australia, Northern Territory and the Australian Capital Territory) have introduced provisions criminalizing sexual servitude, the Committee requests the Government to supply information on any legal proceedings which have been instituted under these provisions and on any penalties imposed.

The Committee is also addressing a request on certain other points directly to the Government.

Observation (CEACR) - adopted 2003, published 92nd ILC session (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.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee has noted the comprehensive and detailed information supplied by the Government in its reports received in November 1999 and September and November 2000, in its statements to the Conference Committee on the Application of Standards in 1999 and 2001 and in a letter dated 27 June 2001, as well as the discussion on the observance of the Convention in Australia that took place in the Conference Committee in 1999.

Article 25 of the Convention. The Committee notes with interest from the Government’s reports that the Federal Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (the Slavery Act) which came into force on 21 September 1999 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; offences are punishable with long-term imprisonment for an individual, and up to A$9.9 million fines for a body corporate. The Government adds that it has sought the cooperation of relevant countries in the enforcement of the new legislation with regard to cross-border activities.

The Committee looks forward to the Government supplying information about the application of the new Federal Act in practice and the adoption of the proposed 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 general observation under the Convention published in 2001.

Articles 1(1) and 2(1) and (2)(c) of the Convention. In its previous observation, dealing with the privatization of prisons and prison labour in Australia, 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 provide information on measures taken or envisaged to ensure 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.

The Committee notes that in its letter dated 27 June 2001, the Government has withdrawn its contention, made during the general discussion in the Conference Committee in 2001 and reflected in paragraph 99 of that Committee’s General Report, that the 1930 International Labour Conference supported, rather than rejected, the proposal that private contractors who were paid by the Government for carrying out public services should be treated on the same footing as governments, and be exempted from allegations of forced labour. Nevertheless, in the view of the Government, this does not detract from the remaining material in its statement to the Conference Committee and its concluding view that the private management of prisons was not envisaged by the 1930 Conference. In this regard, the Committee refers to the explanations provided in its general observation under the Convention this year.

From the Government’s reports there appears to be little change in national law and practice over the last years with regard to the work of prisoners for private enterprises. According to the Government’s report received in November 2000, the operator of a private prison (in Victoria) "is no more than an agent of the (Correctional Services) Commissioner for the purpose of organizing work to assist in the prisoner’s rehabilitation". Meanwhile, the "Code of practice for correctional industry business development" adopted by a resolution of the States’ and Territories’ Corrective Services Ministers in July 1997 focuses on market access and industry impact but makes no reference to prisoners’ rights, wages or conditions of work.

As at June 2000 there were no prisons administered by private concerns under the Federal, Tasmanian, Northern Territory and Australian Capital Territory jurisdictions, while private prisons existed in Victoria, New South Wales, Queensland and South Australia.

In Western Australia, the state’s first privately operated prison was to be completed in September 2000 and run under contract by the Corrections Corporation of Australia (CCA), a private prison service provider, but was still to be controlled by the Ministry of Justice. According to the Government, the creation of the private prison would not introduce any instances of forced labour as defined in the Convention.

As to the state of Victoria, the Government reported in November 2000 that prisoners were required to work if they had been convicted and sentenced and were under the age of 65, irrespective of their placement at a public or private sector prison. If a prisoner refused to comply with a direction to work, the prison manager was authorized to impose a penalty, e.g. a fine, and the prisoner was liable also to revert to a more closely supervised regime in another prison unit.

The first contract for a privately owned and operated prison in Victoria was awarded to the CCA for the Metropolitan Women’s Correctional Centre (MWCC) in Deer Park near Melbourne, which officially commenced operation in August 1996. The Victorian government stepped in to take control of the MWCC in October 2000 after a number of defaults relating to operations at the facility were not resolved by the 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.

The two remaining private sector prisons in Victoria were the Fulham Correctional Centre in Eastern Victoria, operated by Australasian Correctional Management Pty. Ltd. (ACM) and the Port Phillip Prison near Melbourne, a maximum security prison operated by Group 4 Correction Services, both of which opened in 1997. In 1998, the rate of remuneration in private prisons was stated to be A$6.5 or A$7.5 per day, compared with an award minimum daily rate of almost A$75 for freely employed workers. In 2000 the Government reported daily rates of pay applied since April 1998 which ranged from A$5.5 to A$8.25 (depending upon the degree of responsibility, the complexity and demands of the task, the skills required and/or the hours of duty) for prisoners employed in either a public or private sector operated facility. Prisoners are not eligible for most social security payments, except child support payments, and the children retain their entitlement to medicare benefits.

In addition, as regards prisoners obliged to work in privately run workshops either inside or outside state prisons in Victoria, the Government indicated that the Secretary to the Department of Justice may, for and on behalf of the Crown, enter into an agreement with any person in connection with his/her functions in connection with the management of prison industries and prison industry worksites; no information on actual practice has been provided.

In New South Wales the only privately managed facility is Junee Correctional Centre which is managed by ACM. "There is an expectation that all inmates will participate positively in all programme activities, including correctional industry programmes, as a component of their rehabilitation, and they generally do so, in accordance with a hierarchy of privileges and sanctions." No information on actual wage levels, any social security benefits or other conditions of employment has been provided, except that programmes are expected to conform to the principle and spirit of all occupational safety and health requirements.

In South Australia sentenced prisoners are required to work, as the manager directs, under the terms of the Correctional Services Act, 1982. This includes prisoners in prisons managed by private operators. The private prison contract for the Mt. Gambier Prison requires that services be provided to assist prisoners in gaining opportunities and skills necessary for their effective participation in the labour market after their release. The same private prison contract makes detailed provision for the separate accounting of all monies accumulated through industries activities and the distribution of any profits among: prisoner amenity and welfare projects at the prison; local community projects and charities; victim support charities; the Department for Correctional Services in respect of board and lodging costs of prisoners; the balance being retained by the operator "as an incentive to provide ever more meaningful opportunities and generate worthwhile revenues". No indication was provided regarding the level of payments to prisoners for work performed. Prisoners "are paid an allowance rather than wages", which "can vary taking into account prisoners’ skill levels, aptitudes and general demeanour", and "is to encourage the rehabilitation, rather than commercial, dimension of the work policy". All prisoners are entitled to a basic allowance; those who receive only the basic allowance are those who have directly refused to work, such refusal being in contravention of the Correctional Services Act. Prisoners are required to work approximately six hours per day; no information was given regarding other conditions of work and any social security entitlements.

There are two privately run correctional centres in Queensland, Arthur Gorrie Correctional Centre and Borallon Correctional Centre, which operate on behalf of the Department of Corrective Services. While the Government states that there are no disincentives or penalties to force prisoners to work, "refusal to work is regarded as not fully participating in the process of self-directed rehabilitation", and "attitude to work is included in the sentence management process". Levels of remuneration range from A$2.04 per day to A$3.99 per day for unskilled to skilled positions; there is an incentive bonus of up to 100 per cent of the base rate and an overall ceiling of A$55.86 per week. On average, prisoners work six hours per day, five days per week. All costs associated with accommodation, food, health, dental services and the provision of a range of personal development and educational opportunities are paid by the state. Social security payments are not available to prisoners. Subject to physical constraints imposed by security measures, all correctional centres are bound to observe statutory occupational health and safety regulations. Workers’ compensation is not applicable to prisoners, but an "amenities" allowance for the purchase of essential items such as toothpaste and soap is paid to prisoners who are unable to work.

The Committee has taken due note of these indications. Referring again to the explanations provided in its general observation under the Convention this year, the Committee hopes that the Government will realize 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. To be compatible with the Convention, privatized prison labour thus requires the freely given consent of the workers concerned; in the context of a captive labour force having no alternative access to the free labour market, "free" consent to a form of employment going prima facie against the letter of the Convention needs to be authenticated by arms’ length conditions of employment approximating a free employment relationship.

None of these conditions appear to have been met so far in Australia, where prisoners’ work for private enterprises (alongside public establishments) is either mandatory as in Victoria, or in any case a criterion "in the sentence management process", as in Queensland, and where prisoners’ wage rates for such work are not commensurate with award rates - even when account is taken of possible deductions for board and lodging - and working prisoners are deprived of social security payments and compensation for occupational accidents and diseases.

The Committee hopes 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 action taken to this end.

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

Article 1(1) and Article 2(1) of the Convention. With reference to its previous comments concerning discharge of army, navy and air force personnel, the Committee has noted the information provided by the Government in its report received in October 1996, as well as the annexed documentation relating to discharge of airmen and sailors. It has noted, in particular, the Government's indication that the Royal Australian Navy (RAN) and the Royal Australian Air Force (RAAF) no longer enlist or train apprentices, and that consequently there is no current text on this issue. The Government states that current members of the RAN and RAAF who were trained as apprentices before both services ceased such training are now discharged at their own request under the same provisions as any other voluntary member of those two services. The Committee noted previously that under the Air Force Regulations (article 92(1)(a)(ii)) and the Air Force Instructions (DI(AF)PERS 6-1) an airman apprentice engaged to serve nine or 15 years. It would be grateful if the Government would indicate, in its next report, whether these provisions have been formally repealed, and if so, communicate copies of relevant texts.

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.]

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

With reference to its previous comments concerning discharge of army, navy and air force personnel, the Committee notes the information provided by the Government in its report.

1. Army. The Committee has noted the texts governing the return of service condition (Manual of Personnel Administration (MPA) Volume 1, Chapter 15).

2. Navy. The Committee notes the Government's information that in November 1993 the RAN apprenticeship scheme ceased to exist. The Committee requests the Government to provide a copy of the current texts governing enlistment, training and discharge at own request of apprentices.

3. Air force. In its previous comments the Committee referred to the enlistment, training and discharge at own request of apprentices. The Committee observed in particular that, according to the army Regulations, the initial engagement period of an apprentice (who could engage at the age of 15 with the consent of his parents), could be 9 or 15 years, whereas the period of training received by an apprentice amounted to four years (Instruction DI (AF) PERS 6-1). The Committee had noted the Government's indication that a replacement scheme was being determined by the air force and it expressed the hope that the Government would indicate measures adopted or envisaged to preserve the right of apprentices to leave the service after a certain time, in a reasonable proportion with the length of training received.

The Committee notes the Government's indication in its latest report that the RAAF Trade Apprentice Scheme was discontinued in 1992, that RAAF entrants must be between the ages of 17 and 42 years, that persons under 18 years may enlist with their parent's/guardian's written consent as well as leave the service within 90 days with their consent.

The Committee would request the Government to provide a copy of the current texts governing enlistment, training and discharge at own request of apprentices.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous comments concerning discharge of Army, Navy and Air Force personnel, the Committee notes the information provided by the Government in its report of March 1992 as well as the annexed documentation relating to enlistment and discharge of soldiers, sailors and airmen.

The Committee notes the Government's indication that the Services have attempted to be consistent in calculating the duration of obligatory service for personnel having received prolonged and highly expensive training funded from public revenues. The aim has been to make the obligatory service period directly proportional to the period of training and its overall cost so as to avoid disruption to the flow of replacement members with the qualifications and experience required by the Services to maintain operational efficiency and career progression and to ensure the most efficient use of limited training resources.

1. Army. The Committee has noted the minimum conditions of service and notice periods under the Army open-ended enlistment schemes introduced on 1 July 1988. It requests the Government to provide a copy of the texts governing the return of service condition (i.e. MPA, Vol. I, Chap. 15).

2. Navy. The Committee notes that the minimum period of enlistment for an apprentice is eight years. The Committee would request the Government to provide details on the kind of instruction and training received by apprentices and the average and maximum length of such instruction/training.

3. Air Force. The Committee noted previously that under the Air Force Regulations (Article 92(1)(a)(ii) and the Air Force Instructions (DI(AF)PERS 6-1) an airman apprentice engages to serve nine or 15 years and that a person can be enlisted as apprentice at the age of 15 with his parent's consent. Referring to paragraphs 67 to 76 of its 1979 General Survey on the Abolition of Forced Labour where it indicated in particular that a worker's right to free choice of employment remains inalienable, the Committee requested the Government to provide information on the measures adopted or envisaged to preserve the right of apprentices, especially those engaged under the age of 18 years, to leave the service after a reasonable time.

The Committee notes the Government's indication in its report that the initial engagement period of nine years is reasonable, as attested by the large number of candidates who, in joining the Air Force, are aware that their training entails a service obligation. The Government also states that this period is consistent with periods in other Arms and that applicants under the age of 18 are interviewed confidentially and countersign their parents' acceptance. Referring also to the notice engagement scheme, introduced in September 1989, the Government adds that the scheme applies to apprentices who have completed their initial nine-year engagement.

The Committee observes that, according to the Army Regulations, the initial engagement period might not only be nine but 15 years, whereas the period of training received by an apprentice amounts to four years (Instruction DI(AF)PERS 6-1).

The Committee notes the Government's indication that a replacement scheme is being determined by the Air Force. The Committee hopes that the Government will indicate measures adopted or envisaged to preserve the right of apprentices to leave the service after a certain time, in a reasonable proportion with the length of training received.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. In its previous comments the Committee referred to different engagement and discharge schemes in the Australian army. As concerns the Royal Australian Air Force, the Committee noted that the right to discharge on one's own request is not normally accorded to airmen before completing 20 years of service, except for selected airmen engaged under a permanent engagement scheme, introduced on 1 August 1987, who can be discharged after 12 years' service by giving three months' notice; dissatisfaction or disenchantment with the service can never be an acceptable reason to discharge (sections 9 and 40 to 43 of the Discharge of Airmen Instruction DI (AF) PERS 7-1). As concerns the Australian Navy, the Committee noted that only sailors who have completed 20 years of naval service will be given special consideration when applying for a discharge prior to the expiration of their engagements (section 10 of Instruction DI (N) PERS 43-8).

The discharge at own request before the normal expiration of an engagement lies in the discretionary power of the Chief of Staff of each of the three arms, but this power is restricted to limited cases enumerated under the Instructions of the Navy and the Air Force (section 2 of DI (N) PERS 43-8 and sections 46 to 48 of DI (AF) PERS 7-1).

The Committee requested the Government to indicate whether it was envisaged to extend to airmen in general the permanent engagement scheme for selected airmen, whether the proposed introduction of an open-ended period of service for all enlistees of the Australian army had been put into operation and whether similar arrangements were envisaged or introduced for the air force and the navy. The Committee further requested the Government to send copies of all relevant statutory instruments and to report on cases in which Chiefs of Staff had exercised their above-mentioned discretionary powers.

The Committee notes with interest the Government's indication in its report that the Royal Australian Air Force has not elected to extend the permanent engagement scheme to all personnel but is in the process of introducing a "notice engagement system" whereby airmen (except apprentices) with between six and 12 years' service may elect to be discharged by giving six months' notice at their request. The Committee also notes with interest that the Australian army's open-ended enlistment scheme and the navy's scheme which is similar, commenced on 1 July 1988 and 1 January 1989 respectively. The Government further indicates that Chiefs of Staff have exercised their discretionary power to discharge on request before the normal expiration of a period of service in a number of cases which have however not been registered.

The Committee notes that the proposed modifications to the conditions of service of airmen include the introduction of a notice engagement which would apply between the six and 12-year career points and discharge on request would normally be granted at the end of six months' notice under the initial fixed engagement of three or six years. No general right of discharge on request would be accorded but greater flexibility built into the new policy to allow for special or exceptional cases.

The Committee notes however also that according to the declaration of the Government and under point 36 of the proposed new conditions of service there is no right of discharge on request for airmen apprentices during their initial periods of enlistment or for other airmen during their first six years of service except in circumstances which are so unusual that they compel subordination of service needs and suspension of legally binding contracts; dissatisfaction or disenchantment are rarely accepted as valid reasons for discharge. In this connection, the Committee notes that under Instruction DI (AF) PERS 6-1 the period of enlistment for an airman apprentice shall be for nine years or 15 years and according to the Annex to the same Instruction a person can be enlisted as an apprentice with the consent of his parent or guardian at the age of 15 years. Referring to paragraphs 67 to 76 of its 1979 General Survey on the Abolition of Forced Labour where it indicated in particular that a worker's right to free choice of employment remains inalienable, the Committee requests the Government to provide information on the measures adopted or envisaged to preserve the right of apprentices especially those engaged under the age of 18 to leave the service on their own initiative after a reasonable time. The Committee also requests the Government to provide a copy of the Airmen's Conditions of Service Instructions when adopted as well as of the army's and navy's enlistment schemes which commenced in July 1988 and January 1989 respectively.

2. The Committee has noted the information provided by the Government concerning the modification of the Queensland Electricity (Continuity of Supply) Act, 1985, by Act No. 1 of 1988.