Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 3 of the Convention. Worst forms of child labour. Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography and for pornographic performances. Commonwealth (federal legislation). Following its previous comments, the Committee notes the Government’s indication that under Australia’s federal system of government, the responsibility for domestic child sex-related offences, including child prostitution offences and child pornography offences rests primarily with states and territories. The Committee notes the Government’s indication that the Australian Parliament enacted the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010, which amended the Criminal Code of 1995 in order to improve the operation of Commonwealth child sex-related offences. This Act establishes penalties for extraterritorial child sex-related offences against all forms of sexual activity with children by Australians overseas. The Act includes offences related to grooming or procuring a child to engage in sexual activity outside Australia, using postal services or the internet to transmit child pornography and provides for higher penalties for carriage service child pornography offences. The Committee requests the Government to provide information on the application in practice of the above provisions on extraterritorial child-sex related offences.

Provincial legislation. New South Wales. The Committee had previously noted that sections 91G and 91H of the Crimes Act 1900, prohibit the use, causing or procuring of a child for pornographic performances as well as the production, dissemination or possession of child pornography. It had noted that “child” as used in these sections refers to children under the age of 16 years. The Committee notes the Government’s indication that the Crimes Amendment (Sexual Offences) Act 2008, amended division 15, Part 3, of the Crimes Act 1900 by separating child pornography offences from child prostitution offences. The Committee notes, however, that while Division 15, which now deals with child prostitution covers children under the age of 18 years, Division 15A which deals with offences related to child pornography still applies only to children under 16 years of age.

The Committee notes the several reasons put forward by the Government in its report for not raising the age for pornography to 18 years. The Government states that the age of sexual consent in New South Wales is 16 years, and if the definition of a child is raised to 18 years for the purposes of child pornography, it would lead to criminalize the depiction of otherwise legal conduct. Moreover, this would also create difficulties for the prosecution in proving that the material depicts or describes an underage child, as the physical differences in appearance of a 17 year old or 19 year old child is less obvious. The Government further states that this provision continues to provide some protection for young persons over 16 years who are portrayed as minors in child pornography specifically because they appear to be under the age of 16.

The Committee emphasizes that it is necessary to make a distinction between the age of sexual consent and the age for protecting children from commercial sexual exploitation. The Committee considers that all persons under the age of 18 years are entitled to be protected absolutely from commercial sexual exploitation, particularly child prostitution and child pornography.

Although the national legislation recognizes that a child of 16 years of age may lawfully consent to a sexual act, the Committee considers that the age of consent does not affect the obligation to prohibit this worst form of child labour. Moreover, while the Government states that the provision prohibiting child pornography for children under 16 years, gives some protection to children above 16 years of age who appear to be under the age of 16 years, the Committee must express its concern at the lack of protection of those children who are under the age of 16 years, but who appear to be above 16 years. It reminds the Government that the Convention lays emphasis on the age of a child and not the physical appearance of a child. Consequently, recalling that by virtue of Article 3(b) of the Convention the use, procuring or offering of a child under 18 years of age for the production of pornography or pornographic performances is considered to be one of the worst forms of child labour and, under the terms of Article 1, this worst form of child labour shall be prohibited as a matter of urgency, the Committee urges the Government to take the necessary measures to extend this prohibition up to 18 years, thereby specifying that the sexual freedom granted to children as from 16 years of age by the penal legislation does not include the freedom to participate in pornographic performances.

Victoria. The Committee had previously noted that sections 45, 47, 47A, 48 and 54 of the Crimes Act of 1958 provide for penalties for several offences related to the sexual exploitation of children under 16 years. The Committee had requested the Government to take the necessary measures to prohibit the use, procuring or offering of children under the age of 18 years for prostitution. The Committee notes the Government’s reference to section 60AC of the Crimes Act according to which a person guilty of committing an offence of sexual servitude against a person under the age of 18 years shall be liable to imprisonment for a maximum of 20 years. The offence of sexual servitude under section 60AB includes using, causing or inducing another person to provide commercial sexual services. It also notes that sections 60AD and 60AE establishes penalties for the offence related to the deceptive recruiting of persons under the age of 18 years for commercial sexual services. The Government further notes the Government’s indication that the Prostitution Control Act of 1994 makes it an offence to cause or induce a child to take part in prostitution (section 5); obtaining payment for sexual services provided by a child (section 6); agreement for the provision of sexual services by a child (section 7); and allowing a child to take part in prostitution (section 11). According to section 3 of this Act, a child means a person under the age of 18 years.

Queensland. In its previous comments, the Committee had noted that provincial legislation only prohibited the use, procuring or offering of a child under 16 for the production of pornography or for pornographic performances and had requested the Government to take the necessary measures to prohibit the use, procuring or offering of children under the age of 18 years for the production of pornography or for pornographic performances.

The Committee notes the Government’s information that the Classification of Publications Act 1991, Classification of Films Act 1991, and Classification of Computer Games and Images Act 1995 establish offences against procuring a minor in the making or production of an objectionable film, an RC publication or a child abuse photograph or obtaining a minor in the making or production of an objectionable computer game. The Committee notes, however, that section 18 of the Classification of Publication Act which deals with the procurement of minors for RC publication or child abuse photographs, section 43 of the Classification of Films Act which deals with the procurement of minors for objectionable film and section 28 which deals with obtaining a minor for objectionable computer games does not provide for a definition of a “minor”. It further notes that sections 12, 13, 14, 15, and 17 of the Classification of Publications Act prohibit the sale, possession, exhibition or production of child abuse publication or photographs. “Child abuse photograph” as defined under section 3 means a photograph depicting a child under 16 years, and “child abuse publication” means an RC publication that depicts or describes, in pictorial or other form, a person under 16 years of age. The Committee requests the Government to indicate the provision which defines a “minor” as a person under the age of 18 years and to provide the text thereof.

South Australia. The Committee had previously noted that sections 63 and 63A of the Criminal Law Consolidation Act of 1935 prohibit the production, dissemination and possession of child pornography. It had also noted that section 63B makes it an offence to incite or procure a child for the commission of an indecent act, which includes exposing any part of the body or making a photograph, image or other record of a child engaged in sexual acts and that a “child” is defined as a person under the age of 16 years (section 62). The Committee had requested the Government to take the necessary measures to prohibit the use, procuring or offering of children under the age of 18 years for the production of pornography or for pornographic performances.

The Committee notes the Government’s information that no changes have been made to these provisions. It notes the Government’s statement that this issue shall be referred to the responsible agency of the Government, South Australia’s Attorney-General’s Department, for consideration. Referring to its comments made on this issue on provincial legislation in New South Wales, the Committee expresses the firm hope that the South Australia’s Attorney General’s Department will take the necessary measures to prohibit the use, procuring or offering of a child under 18 years for the production of pornography and for pornographic performances.

Tasmania. The Committee had previously noted that sections 124, 125, 125A and 125C of the Criminal Code Act of 1924 provide for penalties for several offences related to the sexual exploitation of young persons under 17 years. The Committee notes the Government’s information that, according to sections 8 and 9 of the Sex Industry Offences Act 2005, procuring, causing or permitting or soliciting and accosting a child (defined as a person under 18 years of age) to provide sexual services is punishable as an offence.

Clause (c). Use, procuring or offering of a child for illicit activities. Provincial legislation. New South Wales. Noting section 351A of the Crimes Act 1900 which makes it an offence to recruit a child under the age of 18 years to carry out or assist in the carrying out of a criminal activity, the Committee had previously requested the Government to indicate whether the use, procuring or offering of a child under the age of 18 years for illicit activities, in particular for the production and trafficking of drugs, constitutes a crime pursuant to this provision. The Committee notes the Government’s statement that, according to section 351A of the Crimes Act, the term “recruiting” include counselling, procuring, soliciting, inciting or inducing, and “criminal activity” means conduct that constitutes a serious indictable offence which includes any indictable offence that is punishable by imprisonment for life or for a term of five or more years. The Committee notes the Government’s indication that this would include all the drug trafficking and production offences under the Drugs Misuse and Trafficking Act, 1985.

Western Australia. Following its previous comments, the Committee notes the Government’s information that, though the Misuse of Drugs Act 1981 does not specifically prohibit the use of children in the production and trafficking of drugs, the Children and Community Services Act, 2004 (CCS Act), contains provisions to protect children under the age of 18 years from being engaged in any employment that could cause them physical or moral harm. The Committee notes that according to section 193 of the CCS Act, the Chief Executive Officer of the Department of Child Protection has the power to prohibit or limit the employment of a child (defined as persons under the age of 18 years), by written notice given to the parent of the child, if he is of the opinion that such employment or the nature or extent of the work carried out by that child is likely to jeopardize the well-being of that child. The provisions further provide for serious penalties for employing or allowing employment of a child in contravention of a notice. The Committee requests the Government to indicate whether any written notices were issued by the Chief Executive Officer prohibiting the employment of a child in illicit activities, in particular the production and trafficking of drugs.

South Australia. Following its previous comments, the Committee notes that Part 5 of the Controlled Substances Act 1984 establishes penalties for the offences related to the sale, trafficking, manufacture and supply of controlled drugs (sections 32, 33, 33A). Section 33H further states that any person who procures a child (under the age of 18 years) to commit an offence against this Part is guilty of an offence.

Northern Territory. Following its previous comments, the Committee notes the Government’s indication that Part 3.2 of Chapter 3 of the Care and Protection of Children Act, 2008, contains provisions to protect children under the age of 18 years from being engaged in any employment which is likely to jeopardize the well-being of that child. Section 201 of this Act deals with the powers of the Chief executive Officer to prohibit or restrict the employment of a child, if he is of the opinion that such employment shall jeopardize the well-being of that child. The Committee further notes the Government’s information that the Department of Justice will develop a proposal to the Minister of Justice and Attorney-General, for considering a provision being inserted to the Criminal Code Act prohibiting the use, procuring or offering of a child for the purpose of illicit activities. The Committee requests the Government to provide information on any progress made in this regard.

Victoria and Tasmania. The Committee had previously requested the Government to indicate the measures taken to prohibit the use, procuring or offering of a child under 18 years of age for illicit activities. With regard to Victoria, the Committee notes the Government’s information that using a child for criminal activities or inciting a person to commit a criminal act constitutes an offence under the Crimes Act 1958. It also notes that, according to section 71B of the Drugs, Poisons and Controlled Substances Act 1981, a person who supplies a drug to a child (under the age of 18 years) to supply that drug to another person is guilty of an indictable offence punishable with imprisonment for up to 15 years.

The Committee further notes the Government’s information with regard to Tasmania that section 298 of the Criminal Code 1924 makes it a crime to incite another person to commit crimes which include the production and trafficking of drugs.

Article 3(d). Prohibition of hazardous work. Provincial legislation. New South Wales. The Committee had previously observed that section 222 of the Children and Young Persons (Care and Protection) Act of 1998 established the age of admission to hazardous work at 15 years, and that it covered only paid employment. The Committee had requested the Government to indicate the measures taken to ensure that any work, whether paid or unpaid, that is likely to harm the health, safety and morals of children under 18 years of age is prohibited. The Committee notes the Government’s information that this matter has been brought to the attention of the Senior Officers Group (SOG) in the Workplace Relations Ministers’ Council and had been asked to report on options for harmonizing children’s employment rules. It further notes the Government’s indication that, according to the Regulatory Impact Statement for the Care and Protection Act, the Children’s Guardian, in order to formulate a proposal for amendment of the Act to address unpaid work by children, intends to consult other Australian jurisdictions where unpaid work by children is subject to specific legislation.

The Government further states that the Commonwealth and all Australian states and territories are contributing to the development of harmonized model work health and safety legislation. This approved draft Work Health and Safety Act (WHS Act) extends its scope of applicability to unpaid employment. New South Wales is expected to introduce the WHS Act into Parliament in 2010. The Committee finally notes the Government’ s statement that New South Wales is a signatory to the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, under which the provincial governments had agreed to harmonize the legislation by the end of 2011. The Committee expresses the firm hope that the Work Health and Safety Act which covers unpaid workers will be adopted in New South Wales very soon. It further expresses the hope that, in the process of harmonizing the health and safety legislation, the Government of New South Wales will take all the necessary measures to establish the minimum age for admission to hazardous work at 18 years, thereby bringing it into conformity with the provisions of the Convention. The Committee requests the Government to provide information on any progress made in this regard.

Queensland. The Committee had previously noted that the Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999 prohibit children under the age of 16 years from working underground. It had requested the Government to indicate the specific measures taken to ensure that employment of young persons aged between 16 and 18 years in underground work is not likely to jeopardize their health or safety. The Committee notes the Government’s statement that section 42 of the Coal Mining Safety and Health Act 1999 and section 39 of the Mining and Quarrying Safety and Health Act 1999, ensure the safety and health of all workers permitted to work in mines, irrespective of age. The Committee reminds the Government that under Paragraph 4 of Recommendation No. 190, the possibility of authorizing the employment or work of young persons as from the age of 16 years is subject to strict conditions that their health and safety be protected and that they receive adequate specific instruction or vocational training in the relevant branch of authority. The Committee therefore urges the Government to take the necessary measures to ensure that underground work by young persons aged between 16 and 18 years is only carried out in accordance with the strict conditions set out in Paragraph 4 of Recommendation No.190, namely that the health and safety of such young persons be protected and that they receive adequate specific instruction or vocational training in that activity. The Committee requests the Government to provide information on the progress made in this regard.

Western Australia. The Committee had previously observed that, other than section 10(4) of the Mines Safety and Inspection Regulations 1995 which prohibit the employment of children under 18 years in an underground mine, there are no other provisions that prohibit the employment of children under 18 years in hazardous work. It had also noted section 193 of the CCS Act which sets out the powers of the Chief Executive Officer to prohibit or limit the employment of children. It had further noted that, according to the Schools Education Act 1999, it is compulsory for all children aged 6–17 years to attend school, failing which the parents will be liable for penalty. The Committee had asked the Government to indicate the manner in which it is ensured that children between the ages of 17 and 18 years do not perform work which is harmful to their health, safety or morals. The Committee notes the Government’s statement that section 192 of the CCS Act which prohibits the employment of children to perform in an indecent manner combined with the wording of section 193(2) relating to the “well-being” of a child in employment is broad enough to ensure that children between the ages of 17 and 18 years of age do not perform work which is harmful to their health, safety or morals. The Committee further notes the Government’s information on the health and safety measures established for young persons under the Occupational Safety and Health Act 1984 (OSH) and OSH Regulations of 1996. The Committee requests the Government to indicate whether the Chief Executive Officer has prohibited any work by children pursuant to section 193 of the CCS Act.

South Australia. In its previous comments, the Committee had noted that there is no legislative prohibition for hazardous work by children under 18 years. It had also noted the Government’s indication that it intended to enact new legislation to improve protection for child workers. The Committee notes the Government’s information that amendments to the draft Bill for the protection of child workers are currently being considered and shall be introduced into Parliament by the end of 2010. The Committee trusts that the draft Bill for the protection of child workers will ensure that children under 18 years of age are protected from types of work which, by their nature or the circumstances in which they are carried out, are likely to harm their health, safety or morals. It expresses the firm hope that this Bill will be adopted soon, and requests the Government to provide information on any progress made in this regard.

Victoria. The Committee notes that, according to section 12 of the Child Employment Act 2003, a child (defined as a person under the age of 15 years) is prohibited from being employed in door-to-door selling, in a fishing boat, on a building or construction site or in any other prohibited work. In addition, the Mines Act 1958 prohibits the employment of children under the age of 14 years in a mine and children under 17 years from working underground in any mine.

Tasmania. The Committee had previously noted that there existed no legislative prohibition for hazardous work by children under 18 years of age. The Committee notes the Government’s information that section 9 of the Workplace Health and Safety Act 1995 requires an employer to ensure that an employee, including young persons, are competent to do the work, and to provide them a safe workplace. It also notes the Government’s information that work harmful to morals is not specifically addressed, but in practice would be acted upon if a complaint is made by the employee.

The Committee recalls that, by virtue of Article 3(d) of the Convention, work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children constitutes one of the worst forms of child labour, and by virtue of Article 1, the member States are required to take the necessary measures to prohibit the worst forms of child labour, as a matter of urgency. The Committee accordingly urges the governments of the provinces of Victoria and Tasmania to take the necessary measures to ensure that children under 18 years of age are prohibited from engaging in work which is likely to be harmful to their health, safety or morals.

Northern Territory. The Committee had previously noted the Government’s statement that it was in the process of enacting The Care and Protection of Children Act which contains provisions prohibiting the employment of children under 18 years of age in work harmful to their physical, mental or emotional well-being. The Committee notes with interest the Government’s indication that this Act has been adopted and that Part 3.2 of Chapter 3 of the Act sets out provisions dealing with hazardous work. The Committee requests the Government to supply a copy of the Care and Protection of Children Act along with its next report.

Article 4(1) and (2). Determination and identification of hazardous work. The Committee had previously noted that, except for Queensland, none of the other provincial legislations provided for a list of types of hazardous work prohibited to children under 18 years. The Committee had requested the Government to provide information on the measures taken to determine the types of hazardous work prohibited for children. The Committee observes the following information provided by the Government:

New South Wales  Other than the prohibition on employment of children for underground work in mines, no other work is identified as hazardous.

Victoria. In addition to the prohibition on children working in the mining industry, in prostitution, gaming venues and on licensed premises, the Child Employment Act makes it unlawful to employ a child in certain prohibited works which include: door-to-door sales; deep-sea fishing; employment on a building or construction site prior to lock-up stage; and any kind of employment declared to be prohibited by the Governor in Council. The Government further provides a list of 18 occupations, declared to be classes of employment where there is a higher risk of physical injury to children.

Western Australia. The Occupational Safety and Health Regulations prohibit the employment of children under 18 years of age at high-risk work activities of scaffolding, rigging, crane and hoist operation, forklift operation and pressure equipment operation.

South Australia and Tasmania. No works identified as hazardous for children under the age of 18 years.

Northern Territory. The National Standard for Licensing Persons Performing High Risk Work adopted on 30 June 2010, contains a list of high-risk work, such as crane and hoist operations, forklift operation, scaffolding work, dogging and rigging work, and pressure equipment operation. A high-risk license shall be issued only to persons who are at least 18 years of age.

Australian Capital Territory. Pursuant to section 798 of the Children and Young People Act 2008, the Minister, through the Children and Young People (High Risk Employment) Declaration of 2009, declared employment in an industry, occupation or activity that involves any of the following to be high-risk employment: use of dangerous machinery; use of dangerous substances; handling harsh or toxic chemicals; high elevation work; service of alcohol; gaming or gambling service; nudity and display of genitals; working with extreme temperatures; and heavy construction and excavation work.

The Committee notes that New South Wales, South Australia and Tasmania have not determined the types of work considered as hazardous for children under the age of 18 years. The Committee once again reminds the Government that in accordance with Article 4(1) of the Convention, the types of work referred to under Article 3(d) shall be determined by national laws or regulations or by the competent authority after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). The Committee once again requests the Government to take the necessary measures to determine the types of hazardous work to be prohibited to persons under the age of 18 years, in New South Wales, South Australia and Tasmania, in consultation with the organizations of employers and workers concerned.

Article 5. Monitoring mechanisms. Interdepartmental committee on human trafficking. The Committee had previously noted the Government’s statement that an Interdepartmental Committee (IDC) to discuss key issues and developments on human trafficking had been established. The Committee notes the Government’s information that the IDC addresses the emerging issues on human trafficking and ensures that the anti-trafficking strategy remains relevant and effective on a whole-of-government basis. In 2008, an Operational Working Group (OWG) was established as a sub-committee of the IDC to provide a more formal mechanism to resolve operational issues that arise in the management of individual cases and plays an important role in referring emergency policy issues for the IDC’s consideration. It further notes that the IDC along with the Australian Government initiated several programmes and measures for combating human trafficking in Australia and overseas, such as the Asia Regional Trafficking in Persons Project. Moreover, the Australian Federal Police undertake preventive work, co-operative activities and regional training programmes to combat human trafficking within the Asia-Pacific region, and the Australian Institute of Criminology monitors trends and issues in human trafficking in the Asia-Pacific region and is developing a monitoring programme to gather data on human trafficking in Australia. The Committee requests the Government to provide information on the impact of the activities of the IDC and the OWG through the various programmes and measures initiated by the IDC and the Australian Government in combating the offences related to trafficking in children. It also requests the Government to provide information on the data related to trafficking in children collected under the monitoring programme developed by the Australian Institute of Criminology.

Article 7(1). Penalties. The Committee notes the Government’s information that, with regard to New South Wales, the Government increased the penalty for employing a child in an employment without authorization by the Children’s Guardian, or in contravention of an authority, from ten penalty units to 100 penalty units. It further notes that during the period 2008–09 the Children’s Guardian did not refer any matters for prosecution but issued four formal breach notices and 35 warnings and directions to take remedial action against employers. With regard to Western Australia, in 2009–10, there has been one prosecution by the labour inspectorate for breaches of the provisions related to child labour under the CCS Act 2004, for which a fine of $6,000 was imposed on the employer. The Committee requests the Government to continue providing information on the application of the penalties in practice in all the states and territories for the offences under Article 3(a)–(d) of the Convention.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the statistical information on child labour provided by the Government. According to the data issued by the Australian Bureau of Statistics in 2006, an estimated 6.6 per cent of all children aged 5 to 14 years worked at some time in the previous 12 months. Victoria and New South Wales shared the lowest proportion of working children. The most common occupation for boys involved delivering newspapers or leaflets, and work in farms, forestry and gardens, and for girls the most common occupation was sales work. From July 2005 to June 2008, 26 standard workers’ compensation claims were received from workers under the age of 15 working in sporting groups, newsagents and pharmacies.

According to the annual report of the Department of Justice and Attorney-General of Queensland, during the period 2007–08, a total of 4,287 child employees were audited, 28 complaints were received and one infringement notice was issued, and during the period from 2008–09, 18,939 child employees were audited, 27 complaints were received and 30 infringement notices were issued.

In Western Australia, 9.5 per cent of children (25,300) between the ages of 5 and 14 years worked during the 12 months to June 2006, and 39.8 per cent of children (34,016) between the ages of 15 and 17 years were employed in 2006. The Committee notes the Government’s information that the Compliance and Education Directorate has disseminated significant amounts of educative material about the laws governing the employment of children, as well as widespread media coverage of previous prosecutions, particularly of major fast food brands which had increased public awareness on child employment leading to a dramatic reduction in the number of prosecutions since 2008.

In the Australian Capital Territory, during the period from July 2008 to July 2010, only one standard worker’s compensation claim was received from a worker under the age of 18 years from the hospitality industry. The Committee requests the Government to continue providing information on the worst forms of child labour in the other states and territories, including copies or extracts from official documents including inspection reports, studies and inquiries, and information on the nature, extent and trends of these forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied. To the extent possible, all information provided should be disaggregated by sex and age.