Section 11 - Freedom from Forced Work

(1) A person must not be held in slavery or servitude.
 

(2) A person must not be made to perform forced or compulsory labour.
 

(3) For the purposes of sub-section (2) ‘forced or compulsory labour’ does not include—
 

(a) work or service normally required of a person who is under detention because of a lawful court
order or who, under a lawful court order, has been conditionally released from detention or ordered to perform work in the community; or


(b) work or service required because of an emergency threatening the Victorian community or a part
of the Victorian community; or


(c) work or service that forms part of normal civil obligations.
 

(4) In this section ‘court order’ includes an order made by a court of another jurisdiction.

 

Rights to be free from slavery, servitude and forced work are important rights in international human rights law. These rights were included in the ICCPR in part as a response to the aftermath of the Second World War during which forced labour was widespread. Thus, the particular premise behind protecting these rights is that persons should not be subject to conditions that violate individual dignity and exploit human productivity.


Slavery and servitude


The prohibitions on slavery and servitude are absolute prohibitions in international human rights law from which derogation is not permitted. This means that in international law they must be respected fully at all times.


Slavery is defined in article 1 of the Slavery Convention 1926 to mean ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.’


This definition encompasses the notion of effective ownership of a person by someone else, as if the person were a piece of property.


Servitude is not ownership despite the fact that a person under servitude may be directed where to live and may be unable to leave. The prohibition on servitude has been considered in the following cases:

  • An applicant who was placed ‘at the disposal of the state’ for 10 years following the completion of a prison sentence was not held in servitude, nor did his situation violate the right to liberty and security of the person.76
  • Obliging a soldier to serve out a minimum enlistment period in the armed forces, contrary to his wishes, did not constitute slavery or servitude.77


Forced or compulsory labour


The UN Human Rights Committee recently considered the meaning of the expression ‘forced or compulsory labour’ in a case against Australia.
It said:

 

“… forced or compulsory labour” covers a range of conduct extending from, on the one hand, labour imposed on an individual by way of criminal sanction, notably in particularly coercive, exploitative or otherwise egregious conditions, through, on the other hand, to lesser forms of labour in circumstances where punishment as a comparable sanction is threatened if the labour directed is not performed.’78


Forced or compulsory labour refers to work exacted from a person under the threat of a penalty, which he or she has not voluntarily offered to do.79 The expression ‘forced labour’ suggests physical or mental constraint.


An example of a penalty might be a threat of punishment if the person does not perform the work. ‘Work’ is to be given a broad meaning and can cover all kinds of work or service, not just physical work.


Forced labour typically has two characteristics: (a) involuntariness; and (b) injustice, oppression or avoidable hardship.80 In relation to the second requirement, in other jurisdictions with a comparable prohibition, the following factors have been relevant:

  • the threat of a penalty;
     
  • the nature of the work required; for example, whether the work is required in the general interest of the community; and
     
  • whether the burden on the applicant is a proportionate one.81


If work required by law was ‘for a short period, provided favourable remuneration and did not involve any discriminatory, arbitrary or punitive application’ it may not contravene this provision.82

Similarly, an arrangement which, in practice, means that a person is prevented from working in his or her chosen environment, or continuing a preferred vocation, is unlikely without more to violate this section.83

 

footnotes

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76 Van Droogenbroeck v. Belgium (1982) 50 Eur Court HR (ser A).

77 W, X, Y and Z v. United Kingdom 11 YB 562 (1968), E Com HR.


78 Faure v. Australia, Human Rights Committee, Communication No. 1036/2001, UN Doc. CCPR/C/85/D/1036/2001 (23 November 2005), [7.5].


79 Convention concerning Forced or Compulsory Labour, adopted 28 June 1930, 39 UNTS 55 (entered into force 1 May 1932).


80 Van der Mussele v. Belgium (1983) 70 Eur Court HR
(ser A) [37]; (1984) 6 EHRR 63 [37].

81 Reitmayr v. Austria (1995) 20 EHRR CD 89.


82 Iverson v. Norway (1963) 6 YbK 278.


83 See for example, X v. Netherlands (1983) 32 Eur Comm HR 180; Talman v. Netherlands [1997] EHRLR 448.