Right to freedom from slavery and forced labour

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to freedom from slavery and forced labour?

The right to freedom from slavery prohibits people being held in conditions in which the powers attaching to the right of ownership are exercised.

The right to freedom from forced labour requires that a person be free from work or service that is compelled under the threat of penalty and which the person has not offered to perform voluntarily.

Where does the right to freedom from slavery and forced labour come from?

Australia is a party to seven core international human rights treaties. The right to freedom from slavery and forced labour is contained in article 8 of the International Covenant on Civil and Political Rights (ICCPR).

See also article 27 the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the right to freedom from slavery and forced labour?

You will need to consider the right to freedom from slavery and forced labour when you are working on legislation, a policy or a program that:

  • compels the provision of any labour or the performance of any service under threat of a penalty, including during a state of emergency, or
  • relates to human trafficking.

This list should not be regarded as exhaustive.

Australian Government officials working abroad also have obligations to report suspected breaches of Australian extraterritorial offences including slavery and human trafficking.

What is the scope of the right to freedom from slavery and forced labour under international legal frameworks?

Slavery

Slavery is defined in the International Convention to Suppress the Slave Trade and Slavery of 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'. The prohibition against slavery has long been recognised as a crime under international law from which no exception is permitted.

Slavery is also dealt with in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956 which expands the definition of slavery to encompass slavery-like practices including debt bondage, serfdom, forced marriage and certain instances of child exploitation.

Australia is a party to both the 1926 and 1956 conventions.

Forced labour

International Labour Organization (ILO) Convention No 29 on the abolition of forced labour provides that:

For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

Australia is a party to this Convention.

'Work' includes all kinds of work or service, not just physical work. Globally, men, women and children have been used as forced labour in construction, mining, fishing, forestry, agriculture and hospitality. Other work includes domestic and sweatshop labour, sex work, street begging and forced recruitment into militias or armed forces.

Debt bondage

Debt bondage is defined by Article 1 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery as the status or condition arising from a pledge by a debtor of their personal services, or those of a person under their control, as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

Australia is a party to this Convention.

Human trafficking

The term 'human trafficking' has the same meaning as the terms 'trafficking in persons' and 'people trafficking'.

The practice of human trafficking often includes an element of contravention of the right to freedom from slavery and forced labour. The United Nations Convention against Transnational Organized Crime (UNTOC) and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) require parties to create offences in relation to the recruitment or transfer of persons by threat or use of force or by other forms of coercion, fraud, deception, the abuse of power, abuse of a position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation (article 3).

Human trafficking involves an element of 'exploitation'. 'Exploitation' is defined in article 3(a) of the Trafficking Protocol as the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. If an element of human trafficking exists in a case of suspected slavery, servitude or forced labour, the UNTOC and Trafficking Protocol offer international legal cooperation avenues.

Human trafficking should be distinguished from people smuggling, or the smuggling of migrants, which is dealt with in another Protocol to UNTOC, namely the Protocol against the Smuggling of Migrants by Land, Sea and Air. That Protocol defines 'smuggling of migrants' as 'the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident'.

Can the right to freedom from slavery and forced labour be limited?

Limitation

The right to freedom from slavery and servitude is an absolute right. This means it cannot be limited or qualified under any circumstance. For further information, see the information sheet on Absolute Rights.

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. However, the right to freedom from slavery and forced labour is specifically excluded from the rights from which derogation is permitted.

Forced labour

Article 8(3)(c) provides that certain types of work or services do not constitute forced labour, namely labour performed pursuant to a sentence of imprisonment imposed by a court, service of a military character or service required of conscientious objectors, service required in time of emergency or work or service under normal civil obligations. The last mentioned category would include jury service.

In a case involving Australia, the UN Human Rights Committee stated that work required under the 'work for the dole' scheme did not constitute forced labour under article 8.

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Which domestic laws relate to the right to freedom from slavery and forced labour?

Criminal Code Act 1995

Slavery

Division 270 of the Criminal Code criminalises offences relating to slavery, which is defined in accordance with the 1926 Slavery Convention. In The Queen v Tang [2008] HCA 39, the High Court found that in Australia, slavery is not limited to 'chattel slavery', and that the critical powers exercised were:

  • the power to make each woman an object of purchase
  • the capacity to use the women in a substantially unrestricted manner for the duration of their contracts
  • the power to control and restrict their movements
  • the power to use their services without commensurate compensation.

Servitude

The Criminal Code criminalises servitude, which is defined in subsection 270.4(1) as the condition of a person who provides labour or services and who, because of the use of coercion, threat or deception, would not consider himself or herself to be: (a) free to cease providing labour or services, or (b) free to leave the place where the person provides labour or services, and who (c) is significantly deprived of his or her personal freedom.

Forced labour

Subsection 270.6(1) of the Criminal Code defines forced labour as the condition of a person who provides labour services and who, because of the use of coercion, threat or deception, would not consider himself or herself to be free: (a) free to cease providing labour or services, or (b) free to leave the place where the person provides labour or services.

Debt bondage

Debt bondage is defined in the Criminal Code as occurring when a person pledges his or her services or the services of another person as security for a debt if the reasonable value of those services is not applied to repay the debt or if the length and nature of the services is not defined.

The penalties for slavery and trafficking offences include up to 25 years imprisonment. The penalty for debt bondage includes up to seven years imprisonment.

Human trafficking

Division 271 of the Criminal Code criminalises human trafficking into, from, or within Australia, and contains specific offences for domestic trafficking, child trafficking and organ trafficking.

Other laws and policies

It is an offence under the Migration Act 1958 to employ a person, or refer a person for work, in contravention of their visa conditions. The Act covers aggravated offences where a person is being exploited (as defined in the Criminal Code).

The Commonwealth Procurement Rules (CPRs), issued under the Financial Management and Accountability Act 1997, articulate the Government's procurement policy. The CPRs require that agencies must not seek to benefit from supplier practices that may be dishonest, unethical or unsafe (paragraph 6.7). This obliges agencies not to contract with suppliers known to engage in exploitative labour practices, such as slavery or human trafficking, or who subcontract to suppliers who engage in such practices.

When recruiting staff through a third-party agency, public officials should be aware of the practices of the companies selected, in particular their practices regarding migrant labour, and only use reputable recruitment and employment agencies.

What other rights and freedoms relate to the right to freedom from slavery and forced labour?

The right to freedom from slavery and forced labour may also be relevant to:

  • the right to liberty in article 9 of the ICCPR
  • the right to privacy in article 17 of the ICCPR
  • the right to freedom of movement in article 12 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 8

  • No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
  • No one shall be held in servitude.
    1. No one shall be required to perform forced or compulsory labour;
    2. Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;
    3. For the purpose of this paragraph the term "forced or compulsory labour" shall not include:
  • Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
  • Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;
  • Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
  • Any work or service which forms part of normal civil obligations.

See also: CRPD article 27.

Where can I read more about the right to freedom from slavery and forced labour?