Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Worst Forms of Child Labour Convention, 1999 (No. 182) - Australia (Ratification: 2006)

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 statement that a number of practical initiatives assist with the application of Australia’s extraterritorial child sex offences. According to the Government’s report, the Australian Federal Police (AFP) works with state and territory police to investigate and apprehend travelling child sex offenders. The AFP receives referrals relating to suspected child sex offenders travelling overseas and monitors convicted child sex offenders through the Australian National Child Offender Register (ANCOR), a national database containing details of persons convicted of sexual offences or other serious offences against children, either domestically or while overseas. The Committee notes the Government’s indication that since 1995, the Commonwealth Director of Public Prosecutions has commenced a total of 43 prosecutions and sentenced a total of 28 defendants for offences related to child sex tourism.

Queensland. In its previous comments, the Committee noted that the provincial legislation only prohibited the use, procuring or offering of a child under 16 for the production of pornography or for pornographic performances. It also noted, however, that section 18 of the Classification of Publication Act which deals with the procurement of minors for the production of child abuse photographs, section 43 of the Classification of Films Act which deals with the procurement of minors for objectionable films and section 28, which deals with obtaining a minor for objectionable computer games do not provide for a definition of a “minor”. Noting the absence of response in the Government’s report, the Committee once again 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 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 also noted that section 62 defines a child as a person under the age of 16 years. The Committee 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 with interest the Government’s indication that the production of child pornography involving persons over 16 years is a criminal offence as per the provisions of the Summary Offences Act 1953, as amended. The Committee notes that according to section 33 of the Summary Offences Act, a person who produces, sells, exhibits, deposits, delivers indecent material or causes or permits a person to do any of these acts is guilty of an offence and shall be punishable with a fine of $20,000 or imprisonment for six months. It notes that the term “indecent material” includes any written, printed, picture, painting, photograph, film, video, computer data or record or any other material or object that is whole or in part of an indecent, immoral or obscene nature.

Clause (c). Use, procuring or offering of a child for illicit activities. Provincial legislation. Western Australia. In its previous comments, the Committee noted that the Misuse of Drugs Act 1981 did not specifically prohibit the use of children in the production and trafficking of drugs. It also noted that according to section 193 of the Children and Community Services Act, 2004 (CCS Act), the Chief Executive Officer of the Department of Child Protection had 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 was 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 Committee notes the Government’s indication that the Department of Child Protection has not received any reports from 2010 to up to now concerning the employment of children for the production and trafficking of drugs. The Committee observes, however, that the provisions under the CCS Act apply only in cases where a child is “employed” in work that may jeopardize the well-being of the child and which may be prohibited or limited by the Chief Executive Officer by issuing notice to the child’s parents. The Committee, therefore, requests the Government to indicate any legislation that makes it an offence to use, procure or offer a child for illicit activities, such as the production and trafficking of drugs.

Northern Territory. In its previous comments, the Committee noted the Government’s information that the Department of Justice would 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. Noting the absence of information in the Government’s report, the Committee once again requests the Government to indicate any progress made in this regard.

Article 3(d). Hazardous work. Provincial legislation. Queensland. The Committee 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 also noted 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 notes the absence of information in the Government’s report. The Committee notes that although the Government of Queensland has adopted the Work Health and Safety Act 2011, and its regulations prohibiting the work of persons under 18 years in high-risk works as listed in schedule 3 of the regulations, the Committee notes that this list does not include work in underground mines. The Committee, therefore, once again 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 requests the Government to indicate the measures taken 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.

Article 5. Monitoring mechanisms. Interdepartmental committee on human trafficking (IDC). Following its previous comments, the Committee notes the Government’s information that since the establishment of Australia’s strategy to combat human trafficking and slavery in 2003, there have been seven cases of trafficking involving minors aged 15–17 years referred to the AFP for investigation, out of which one conviction for child trafficking was issued. The Government further indicates that the IDC and the Operational Working Group (OWG), a subcommittee of the IDC, have amended relevant policies to ensure that the Government provides appropriate assistance to minors who are victims of trafficking as well as to suspected victims of trafficking.

Application of the Convention in practice. The Committee notes the Government’s information that in Western Australia from 2010–14, five prosecutions were initiated for breach of section 190(1) of the Children and Community Services Act relating to the unlawful employment of children under the age of 15 years, for which penalties ranging from $2,000 to $30,000 were imposed on employers. In Victoria, a case was referred for prosecution in 2013–14 for an alleged breach of the Child Employment Act. In this case, 72 investigations were conducted following which six employers were issued with formal breach notices for an offence under this Act. In addition, during 2013–14, 20 workers’ compensation claims were received from workers under the age of 18 years.