Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (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.