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Prohibition on imprisonment for inability to fulfil a contract

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 prohibition on imprisonment for inability to fulfil a contract?

The prohibition on imprisonment for inability to fulfil a contract protects against imprisonment as a punishment for inability to pay a private debt or to fulfil another type of contractual condition owed to another person or corporation.

Where does the prohibition on imprisonment for inability to fulfil a contract come from?

Australia is a party to seven core international human rights treaties. The prohibition on imprisonment for inability to fulfil a contract is contained in article 11 of the International Covenant on Civil and Political Rights (ICCPR).

When do I need to consider the prohibition on imprisonment for inability to fulfil a contract?

You will need to consider the prohibition on imprisonment for inability to fulfil a contract if you are working on legislation, a policy or a program that might enable the imposition of a term of imprisonment for a person solely on the basis that they are unable to:

  • pay a private debt owed to another person or corporation, or
  • fulfil another type of contractual condition owed to another person or corporation, such as the provision of services or the delivery of goods.

What is the scope of the prohibition on imprisonment for inability to fulfil a contract?

This prohibition arose from the incidence of 'debtors' prisons', under which a person could be imprisoned for failure to pay a private debt. This practice was in use in the United Kingdom in the nineteenth century, but was abolished by statute in 1869. There is evidence that persons were imprisoned for the inability to pay a debt in the Australian colonies in the nineteenth century.

The prohibition in the ICCPR does not apply to obligations arising from statute. The reference to 'inability' indicates that the person must be incapable of fulfilling the obligation rather than simply unwilling to do so. The word 'merely' indicates that the prohibition does not protect people who have committed some other offence in addition to the contractual breach.

Can the prohibition on imprisonment for inability to fulfil a contract be limited?

Limitation

The prohibition on imprisonment for inability to fulfil a contract is an absolute right. This means that it cannot be limited or qualified under any circumstance. For further information see the additional 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 prohibition on imprisonment for inability to fulfil a contract is specifically excluded from the obligations from which derogation is permitted.

Which domestic laws relate to the prohibition on imprisonment for inability to fulfil a contract?

The imprisonment for inability to meet a private contractual obligation has not been practised in Australia since the nineteenth century, and there are no Commonwealth laws dealing with it.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 11

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

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