Observación (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (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.