As with all of the human rights protected in the Charter, the rights in s. 11 may be subject to reasonable limitations that can be demonstrably justified in a democratic society in accordance with s. 7 of the Charter. You should refer to Part 2 of these Charter Guidelines for further information on s. 7.


The right to freedom from forced or compulsory labour is also subject to a number of permissible exceptions outlined in s. 11(3).


Detainee labour


Any work required to be done by 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, is exempt from the prohibition on forced labour. This provision applies to prisoners, including prisoners on remand, who are detained because of a lawful court order. It also applies to other persons who are detained under a lawful court order.

The position is not altered by a subsequent quashing of a conviction.


Note also:

  • If the conditions for detention specified in the provision are not met (for example, the detention was not lawful and court-ordered), forced detainee labour may not be permitted.84
     
  • The qualification pertaining to detainees may cover forced work performed by prisoners on behalf of private firms under contracts concluded with the prison administration.85


Paragraph (4) of s. 13 clarifies that the reference to ‘court order’ in sub-clause (3)(a) includes an order made by a court of another jurisdiction.


This ensures that the exception would cover the interstate transfer of prisoners to Victoria.


Emergencies


Work or service required because of an emergency threatening the Victorian community or a part of the Victorian community is exempt from the prohibition on forced labour. A similarly worded exception appears in Article 8(3)(c)(iii) of the ICCPR.


‘Work or service that forms part of normal civil obligations’


Work or service forming part of normal civil obligations is exempt from the prohibition on forced labour.


The expression ‘work or service that forms part of normal civil obligations’ is not specifically defined in the Charter. The UN Human Rights Committee has said that it should be interpreted against the backdrop of the minimum standards contained in ILO Convention No. 29.86 That Convention, in article 2, paragraph 2(e) excludes from the definition of the term “forced or compulsory labour”:

‘…minor communal services of a kind which, being performed by the members of the community in the direct interests of the said community, can therefore be considered as normal civic obligations incumbent on members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.


… In the Committee’s view, to so qualify as a normal civil obligation, the labour in question must, at a minimum, not be an exceptional measure; it must not possess a punitive purpose or effect; and it must be provided for by law in order to serve a legitimate purpose under the Covenant.’87

Examples of normal civil obligations may be:

  • jury service;
     
  • a lessor’s obligation to maintain his or her building;
     
  • both compulsory fire service and a financial contribution in lieu of such service;
     
  • performing community labour pursuant to a ‘Work for the Dole’ program.88

 

Footnotes

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84 De Wilde, Ooms and Versyp v. Belgium (1972) 14 Eur Court HR (ser A); (1979–80) 1 EHRR 438.


85 Twenty one Detained Persons v. Federal Republic of Germany (1968) 11 YbK 528.


86 Faure v. Australia, Human Rights Committee, Communication No. 1036/2001, UN Doc. CCPR/C/85/D/1036/2001 (23 November 2005) [4.11].

87 Ibid [7.5].


88 Ibid. The ‘Work for the Dole’ program is a Commonwealth, rather than Victorian, scheme.