Right to freedom from forced work
Section 18 of the Human Rights Act 2019 says that:
A person must not be held in slavery or servitude. A person must not be made to perform forced or compulsory labour. In this section –
- court order includes and order made by a court of another jurisdiction.
- forced or compulsory labour does not include
- 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
- work or service performed under a work and development order under the State Penalties Enforcement Act 1999; or
- work or service required because of an emergency threatening the Queensland community or a part of the Queensland community; or
- work or service that forms part of normal civil obligations.
In this section ‘court order’ includes an order made by a court of another jurisdiction.
The Human Rights Act says that a person must not be made a slave or forced to work. This right does not include certain forms of work or service, such as work or service required of a person who is detained.
This section is based on Article 8 of the International Covenant on Civil and Political Rights. Australia ratified this treaty in 1980.
Scope of the right
Although slavery and servitude have been against the law across the world for many decades, contemporary forms of slavery and servitude still happen every day. Under international law, the protection from slavery is an absolute right. It may not be limited in any circumstances.
Contemporary forms of slavery and servitude include child soldiers, debt bondage, forced labour and forced marriage. There are many people in Queensland who either experience these things or live with the consequences of them every day.
Slavery is when someone exercises ownership rights over another person, as if they were a piece of property. Like freedom from torture, freedom from slavery refers to practices of extreme expressions of power people can have over other people. Slavery is a direct attack on bodily integrity and security, and on human dignity.
Servitude is not ownership, but someone in servitude may be directed where to live and may be unable to leave.
Forced labour is when someone is compelled to do work. It brings with it a sense of physical or mental constraint. It may involve the threat of punishment if the person does not perform the work. ‘Work’ has a broad meaning and can cover all kinds of work or service, not just physical work.
The Act specifies that forced labour does not include work a person might be required to do by a court as part of a community service order. Work required because of an emergency or work that forms part of normal civil obligations is also excluded. So is jury duty, compulsory fire service or community labour under social welfare programs like ‘work for the dole’ schemes.
This right specifies that although slavery and servitude are not commonly carried out by Queensland public entities, government agencies still have a role to play in promoting, respecting and protecting this right – through laws, policies and programs, services and law enforcement activity. This includes things like:
- following up on allegations of human trafficking, slavery and forced marriages;
- implementing measures to prevent and protect people from becoming victims;
- regulating and overseeing brothels and other areas of the sex industry;
- programs to support former child soldiers who have come as refugees to Australia; and
- working with communities to address the practice of forced marriage.
Like all rights in the Act, the right to freedom from forced work can be limited, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
However, given the nature of this right, the fact it cannot be limited under international law, and the existence of other laws prohibiting slavery and forced work, it is unlikely to be limited in Queensland.
When this right could be relevant
Section 16 could be relevant to laws, policies, acts or decisions that:
- compel the provision of any labour or the performance of any service under threat of a penalty;
- give a Minister or public entity the power to employ or direct people to perform work in a vital industry or during a state of emergency;
- relate to people trafficking or forced marriage.
This factsheet is not intended to be a substitute for legal advice.