Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. 1. Action Plan for Human Rights. The Committee had previously noted that an Action Plan for Human Rights was being prepared and had asked the Government to provide further information on this Action Plan. The Committee notes the Government’s information that the Human Rights Commission released the Action Plan for Human Rights in March 2005. It also notes that this Action Plan has a strong focus on children’s rights and includes such issues as the elimination of poverty; education for all children and young people; social and economic equality; rights of indigenous peoples; employment and other issues. The Committee further notes that a copy of this Action Plan has been provided by the Government. It takes due note of this information.

2. New Zealand’s Agenda for Children. The Committee had previously noted that New Zealand’s Agenda for Children focused on child poverty, improving local government and community planning for children, increasing child participation as well as enhancing information, research and collaboration on child-related issues. It had asked the Government to provide further information on the impact of the Agenda on securing and prohibiting the elimination of the worst forms of child labour. The Committee notes the Government’s information that the Agenda provides a framework for all groups in society contributing to the upbringing and well being of children. The Agenda promotes a "whole child" approach to addressing children’s issues, which means:

-         focusing on the big picture, on the child’s whole life and circumstances, not just isolated issues or problems;

-         focusing from the outset on what children need for healthy development, rather than simply reacting to problems as they arise; and

-         looking across the whole public service at what can be done to support children’s healthy development, instead of looking for single-sector solutions.

The Committee takes due note of this information.

Article 3. Worst forms of child labour. Clause (b). Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee had previously noted that the Films, Videos and Publications Classification Act of 1993 (the Films Act) prohibited the making and distribution of an objectionable publication, which is deemed to be objectionable if it promotes or supports the exploitation of children or young persons for sexual purposes. The Committee had noted the absence of definition of the terms "children" and "young persons" under the Films Act, but had noted that the Film and Literature Board of Review and the Office of Film and Literature Classification had interpreted the term "young person" as a person under 18 years of age. The Committee had requested the Government to provide a copy of the decision and to indicate whether the decision has binding effect. The Committee notes that the Government has provided a copy of the decision made by the Film and Literature Board of Review, which defines the term "child" as anyone under 18 years of age. It notes that decisions by the Film and Literature Board of Review are binding for the Classification Office in so far as those decisions are applicable to the future classification of publications. However, New Zealand courts are not bound by these decisions.

The Committee had further noted that there was no offence specifically directed at the procuring or offering of a child under 18 for the purposes of pornography in the Films Act. It had noted that 147 convictions under the Films Act had been secured since 1996. The Committee had requested the Government to indicate whether these convictions dealt specifically with the use, procuring or offering of children under 18 for the production of pornography or pornographic performances. The Committee also notes the Government’s information that none of the convictions under the Films Act dealt specifically with the use, procuring or offering of children under the age of 18 for the production of pornography or pornographic performances, because the Films Act does not regulate the use of a child in pornography. It deals with a publication which promotes or supports the sexual exploitation of a child or young person.

The Committee further notes the Government’s indication that the Crimes Act deals with the use of a child in child pornography through its sexual offence provisions. The Committee notes with interest that new section 98AA, subsection (1), paragraphs (f) and (g), of the Crimes Amendment Act No. 2 of 2005 punishes anyone who induces a person under the age of 18 years to sell, rent or give himself or herself, or induces a person to sell, rent or give another person under the age of 18 who is dependent on him or her, for the purpose of sexual exploitation. Subsection (2) of section 98AA further states that sexual exploitation includes the taking or transmission by any means of still or moving images of the person engaged in explicit sexual activities (whether real or simulated). The Committee takes due note of this information.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee had previously noted that the Misuse of Drugs Act of 1975 deals with a range of drug-related offences. However, it had observed that the Misuse of Drugs Act does not prohibit the use, procuring or offering of a child for the production and trafficking of drugs. The Committee had also noted that, according to section 66(1) of the Crimes Act anyone who: (i) does or omits an act for the purpose of aiding a person to commit an offence; (ii) abets any person in the commission of an offence; or (iii) incites, counsels or procures any person to commit an offence, is a party to and guilty of an offence. Noting that the production or trafficking of drugs did not constitute an offence under the Crimes Act, the Committee had requested the Government to indicate whether section 66 of the Crimes Act applied to all types of offences or only to offences laid down in the Crimes Act. The Committee notes the Government’s information that the Misuse of Drugs Act prohibits the production and trafficking of drugs in a general sense which includes any involvement or association with these activities. This includes the use, procuring or offering of a child in the production and trafficking of drugs. The Committee also notes that section 66 of the Crimes Act applies to all offences, not just to those in the Crimes Act. The Committee takes due note of this information.

Article 3(d). 1. General prohibition to perform hazardous work. The Committee had previously noted that, by virtue of section 54(d) of the Health and Safety in Employment Regulations of 1995, "every employer shall take all practicable steps to ensure that no employee under the age of 15 works in any area at a place of work under the control of that employer […] at any time when any work is being carried out in that area that is likely to cause harm to the health and safety of a person under the age of 15 years". It had noted that the prohibition did not extend to children under 18 years of age. Recalling that, by virtue of Article 3(d) of the Convention, children under 18 years of age shall not undertake work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals, the Committee had requested the Government to take the necessary measures in this regard. The Committee notes that the Government intends to review the Health and Safety in Employment Regulations in order to increase the restriction on hazardous work to 18 years of age. The Committee asks the Government to keep it informed on the progress made in the revision of the Health and Safety in Employment Regulations and to provide a copy thereof once they have been revised.

2. Self-employed children. The Committee had previously noted that the Health and Safety in Employment Regulations, which provides provision for the employment of children in hazardous occupations, only applies to a "place of work under the control of that employer" (section 54). The Committee had accordingly requested the Government to indicate the measures taken or envisaged to ensure the protection of self-employed workers under 18 years of age from work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals. The Committee notes the Government’s information that the Minors Contracts Act of 1969 provides protection for minors (persons under the age of 18) entering a contract for service (self-employment). If the consideration for a minor’s act is so inadequate as to be unconscionable, or if any contractual obligation is harsh or oppressive, the Court may vary or cancel the contract or order compensation. The Committee also notes that these provisions have yet to be interpreted by the courts in light of the protection available under the Employment Relations Act. It asks the Government to keep it informed on any court decisions made in this regard. The Committee notes that the Act may provide some protection against the exploitation of minors. It nevertheless requests the Government to supply it with information on any steps taken or envisaged to prohibit persons entering into contracts of service with minors to perform hazardous work.

Article 4, paragraph 1. Determination of hazardous work. The Committee had previously noted that national legislation or regulations do not provide for a list of the types of hazardous work that shall not be performed by children under 18 years of age. The Committee had reminded the Government that, by virtue of Article 4, paragraph 1, of the Convention, the types of hazardous 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 had hoped that the list of the types of hazardous work prohibited to children under the age of 18 would be adopted shortly and had requested the Government to inform it of any developments in this regard. The Committee notes the Government’s indication that the types of hazardous work described in Paragraph 3 of Recommendation No. 190 are covered by the Health and Safety in Employment Regulations, but only to those aged under 15 or 16 years. It also notes that the Government intends to review the Health and Safety in Employment Regulations, including the provisions concerning the employment of children. As a part of this process, it will give consideration to further defining the categories of hazardous work and increasing the restriction on such work to 18 years of age. The Committee hopes that the Health and Safety in Employment Regulations will soon be revised and requests the Government to inform it of any progress made in this regard.

Article 4, paragraph 2. Identification of hazardous work. The Committee had asked the Government to provide information on the methods used to identify, in collaboration with the organizations of employers and workers concerned, where the types of hazardous work exist, as required by Article 4, paragraph 2, of the Convention. The Committee notes the Government’s information that the Health and Safety Inspectorate, in carrying out its duties, responds appropriately where ongoing risks are identified in a working environment. Where new health or safety risks are identified, guidelines and regulations will be developed through processes that involve the Government, the employers’ and the workers’ organizations. The Committee also notes that the Workplace Health and Safety Strategy for New Zealand to 2015 was released on June 2005. This strategy has identified eight national priorities for action, which include major hazards or groups with particular needs: airborne substances; workplace vehicles; manual handling; ships, trips and falls; psychosocial work factors; vulnerable workers; small businesses; and high-risk industries. Young employees are identified as one of these priority groups with particular needs. The Committee takes due note of this information.

Article 5. Monitoring mechanisms. 1. Occupational Safety and Health Service. The Committee had previously noted that the health and safety inspectors are responsible for ensuring compliance with the Health and Safety in Employment Act of 1992 and the Health and Safety in Employment Regulations of 1995, including the provision regulating the employment of children. The Committee had also noted that according to the Government’s report to the Committee on the Rights of the Child (CRC/C/93/Add.4, 12 March 2003, paragraph 943), the Occupational Safety and Health Service had consulted various government agencies and industry training organizations to identify accidents and injuries young workers are suffering from. The Committee had asked the Government to provide a copy of the statistics on accidents and injuries affecting young workers, as well as the results of the inspections with regard to the number of children involved in hazardous work. The Committee notes that the Government has provided statistics, according to which, during the reporting period (July 2003-April 2005) work related entitlement claims for moderate to serious injuries were made by approximately 1,260 young workers. The majority of these (1,240) were for young workers aged 15-17. The Committee also notes that the Workplace Health and Safety Inspectorate has observed that there is a high level of compliance with the legislative requirements in this area in New Zealand.

2. Child prostitution inspection. The Committee had previously noted that, by virtue of section 26 of the Prostitution Reform Act of 2003, an inspector may, at any reasonable time, enter premises for the purpose of carrying out an inspection if there are reasonable grounds to believe that a business of prostitution is being carried on in the premises. According to section 30(1) of the Prostitution Reform Act, a District Court Judge, justice, community magistrate, or registrar of the District Court may issue a warrant for the police to enter a place if satisfied that there is good cause to suspect that an offence under section 23 of the Prostitution Reform Act (using persons under 18 years in prostitution) is likely to be committed. The Committee had asked the Government to provide information on the number of investigations conducted with regard to child prostitution and the findings. The Committee notes the Government’s information that five people have been convicted since June 2003 for offences in terms of the Prostitution Reform Act.

3. Prostitution Law Review Committee. The Committee had previously observed that section 42(1)(b) of the Prostitution Reform Act provides that the Prostitution Law Review Committee is responsible for assessing the impact of the Act on the number of persons working as sex workers in the country, and on any prescribed matters relating to sex workers or prostitution. It shall also assess the nature and adequacy of the means available to assist persons to avoid or cease working as sex workers. Such assessment shall be made no sooner than the expiry of three years but before the expiry of five years, after the commencement of the Prostitution Reform Act of 2003. The Committee had requested the Government to provide information on the impact of this Act on the elimination of the sexual exploitation of children under 18 years of age. The Committee notes that the Prostitution Law Review Committee issued its first report in April 2005, which provides baseline information on the number of sex workers and businesses by districts and sectors (licensed massage parlours, rap/escort parlours, escort agencies, private workers, street workers and ship workers). According to this report, it was estimated that there were around 200 sex workers under the age of 18 and 60 per cent of them were located in the street sector. The Committee also notes the Government’s information that the second report will assist in providing information on the operation of the Act and its impact on the number of sex workers under the age of 18. The Committee requests the Government to keep it informed on the activities of the Prostitution Law Review Committee.

Article 6. Programmes of action to eliminate the worst forms of child labour. 1. National Plan of Action Against the Commercial Sexual Exploitation of Children. The Committee had previously noted that a National Plan of Action Against the Commercial Sexual Exploitation of Children had been approved in 2001. It focuses on child prostitution, child pornography, child sex tourism and child trafficking for sexual purposes. The Committee had also observed that several activities were being undertaken to implement this plan of action such as: (i) action to research the incidence and extent of child prostitution in New Zealand; (ii) producing regular updates on the situation of the commercial sexual exploitation of children; (iii) awareness raising; and (iv) training for people working with sexually abused children. The Committee had asked the Government to continue to provide information on the concrete measures taken under this plan of action and the results achieved. The Committee notes the Government’s indication that the Ministry of Justice is currently working with ECPAT (End Child Prostitution, Pornography and Trafficking) to complete a stock-take of initiatives undertaken by the Government and NGOs under the plan of action. This information will be supplied in the Government’s next report. The Committee therefore requests the Government to supply information in this regard.

2. Child Labour Officials Advisory Committee (CLOAC). The Committee had previously noted that CLOAC was established in 2001 to raise public awareness and understanding of ILO Convention No. 182 and to encourage initiatives to identify and eliminate the worst forms of child labour. The Committee had asked the Government to provide further information on the activities of CLOAC and their impact on eliminating the worst forms of child labour. The Committee notes the Government’s information that the Department of Labour, responsible for administering CLOAC, is currently re-examining the role of CLOAC. The Government will provide information on the outcome of this review in its next report. The Committee therefore asks the Government to provide information in this regard in its next report.

Article 7, paragraph 1. Penalties. The Committee had previously noted the penalties for the violation of provisions prohibiting the worst forms of child labour, provided in sections 98(1) and 144(C) of the Crimes Act, and in sections 20, 21, 22(1), 22(2) and 23(1) of the Prostitution Reform Act. It had also noted the penalties for the employment of children in hazardous types of work set out in sections 54(d) and 70 of the Health and Safety in Employment Regulations and section 50 of the Health and Safety in Employment Act. It had requested the Government to provide information on the penalties imposed in practice. The Committee had also observed that, according to section 123 of the Films Act, a person who makes, supplies or delivers objectionable publication (including child pornography) is liable to a maximum fine of US$5,000. The Committee had noted the Government’s indication that it was intended to introduce a new bill to substantially increase the penalties. The Committee had asked the Government to indicate whether a new bill had been enacted to ensure that the penalties imposed for making, supplying or delivering objectionable publications, including child pornography, are dissuasive.

The Committee notes the Government’s information that the Film, Videos and Publications Amendment Act was enacted in 2005. The maximum penalty for committing offences under this Act is a maximum term of ten years’ imprisonment. These offences are supplemented by an amendment to the Customs and Excise Act 1996 which made importing and exporting of objectionable materials punishable by a maximum penalty of five years’ imprisonment. The Committee also notes the Government’s information that the Crimes Amendment Act of 2005 introduced a new offence which makes "dealing in people under the age of 18 for sexual exploitation, removal of body parts, or forced labour" punishable by a maximum 14 years’ imprisonment. As regards the application of the penalties in practice, the Committee notes that there have been two prosecutions for the violation of the Health and Safety in Employment Regulations. The Committee requests the Government to continue to provide information on the application in practice of all the abovementioned provisions.

Article 7, paragraph 2. Effective and time-bound measures. Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. The Committee had previously noted that sections 39 to 45 of the Children, Young Persons and Their Families Act, 1989, provides that if a child or young person’s employment activity is detrimental to their well-being, the police (after obtaining a warrant from a judge) is able to remove them and the Family Court may place them in the custody of the Director-General of Child, Youth and Family. It had asked the Government to provide concrete examples of children under 18 years removed from the worst forms of child labour. The Committee had also observed that a Child and Young Person’s Prostitution Programme had been launched. The Programme provides timely and appropriate responses to the mental, physical, social and spiritual needs of targeted children and young persons. The Committee had requested the Government to provide information on the number of child prostitutes withdrawn and rehabilitated pursuant to the Child and Young Person’s Prostitution Programme.

The Committee notes the Government’s information that Child, Youth and Family (CYF) is a government agency responsible for the care and protection of children believed to be at risk because they are experiencing (or are likely to experience) such things as: physical or sexual abuse; violence and conflict between their caregivers; emotional and physical neglect; mistreatment from caregivers. Children placed in care may also have been engaged in the worst forms of child labour, but it is not recorded as such for statistical purposes. The Committee also notes that CYF funds service providers to work with children and young people who may be living or working on the streets. For example, CYF funds a collaborative project managed by Waipuna and Christchurch City missions which involves providing social support for young people including women prostitutes. The Committee further notes the Government’s information that a Baptist Action shelter "Awhina Teina" was officially opened on 30 April 2005. The shelter is deliberately distanced from CYF and the Police in order to encourage the young women to use it. The Committee once again requests the Government to provide information on the number of prostitutes under the age of 18 years who have been withdrawn and rehabilitated pursuant to the Child and Young Person’s Prostitution Programme.

Clause (d). Identifying and reaching out to children at special risk. Māori children. The Committee had previously noted that Māori children are over represented among child prostitutes since the risk factors that give rise to children becoming involved in prostitution are more common among Māori families. It had noted that programmes provided by Māori on the basis of Māori values are those likely to be most effective, for example the programme provided by Te Aronga Hou Trust. The Committee had requested the Government to continue to provide information on the concrete measures taken under the Te Aronga Hou Trust Programme and the results achieved in preventing and eliminating child prostitution among Māori children under 18 years of age. The Committee notes the Government’s information that Te Aronga Hou (TAH) works with Māori youth at risk in Mangere (South Auckland) who are soliciting in the streets of South Auckland. TAH is presently under the governance and management of Mangere East Family Service Centre, South Auckland. TAH reported approximately 300 contacts in the first nine months of the 2004-05 financial year. This is however no reflection of the actual numbers of underage individuals engaged in prostitution as "contacts" could include the same young person every night. The Committee asks the Government to continue to provide information on effective and time-bound measures taken to prevent and eliminate child prostitution among Māori children.

Clause (e). Take account of the special situation of girls. The Committee had previously requested the Government to provide information on the measures taken to address specifically the situation of girls in sectors of the economy or activities where they are more likely to be exploited than boys. The Committee notes the Government’s indication that the New Zealand Government recognizes that, in particular, underage prostitution in New Zealand is more likely to result in the exploitation of girls than boys. It also notes that several initiatives specifically target young girls in order to eliminate this worst form of child labour. For example, an Auckland group, Baptist Action, has agreed to finance and pilot a 12-month venture to provide emergency accommodation for girls engaged in commercial sexual activity. The Committee asks the Government to continue to provide information on effective and time-bound measures taken to address specifically the situation of girls.

Article 8. International cooperation and assistance. Child sex tourism. The Committee had observed that the Government is engaged in combating child sex tourism. The country participates in a number of international and regional tourism organizations, including Pacific Asia Travel Association, International Air Transport Association, and World Tourism Organization. It had also noted that according to New Zealand’s National Plan of Action Against the Sexual Exploitation of Children, " New Zealand needs to continue building cooperative relationships with other countries, such as Thailand, the Philippines and Fiji, where there have been reports of New Zealanders engaging in child sex tourism". The Committee had requested the Government to continue to provide information on the measures of cooperation taken to combat child sex tourism. The Committee notes the Government’s information that the Crimes Amendment Act of 2004 provides that section 144A "Sexual conduct with children and young people outside New Zealand" applies to offences in the Prostitution Reform Act of 2003. However, the Committee notes the absence of information on the measures of cooperation with other countries taken to combat child sex tourism. It once again requests the Government to provide information in this regard.

Part III of the report form. Court decisions. The Committee had previously asked the Government to supply any court decisions regarding the legislation relevant to the application of the Convention. The Committee notes that the Government has provided a court decision relevant to the underage prostitution offence under the Prostitution Reform Act.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the Government’s indication that the main difficulty in the application of the Convention in New Zealand is the clandestine nature of the worst forms of child labour. It also notes that the Government has provided a copy of the research conducted in 2004 by ECPAT on the extent of the commercial sexual exploitation of children in New Zealand. The research explores the incidence of violence and childhood sexual abuse among people who became involved in underage commercial sexual activity. The Committee requests the Government to continue to provide information on the application of the Convention in practice, including extracts from inspection reports, information on the nature, extent and trends of the worst 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 penalties applied.