Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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 the production of pornography and for pornographic performances. Provincial legislation. New South Wales (NSW). In its previous comments, the Committee noted that Division 15A of the Crimes Act which deals with offences related to child pornography applied only to children under 16 years of age. The Committee therefore urged the Government to take the necessary measures to extend this prohibition up to 18 years.

The Committee notes the Government’s reference in its report to section 91D of the Crimes Act concerning promoting or engaging in acts of child prostitution which include sexual services by children under 18 years of age. The Government also indicates that where a relevant act involving a child over the age of 16 occurs without that child’s consent, numerous other offences may also apply, including sexual assault and related offences under Division 10 of Part 3 of the Crimes Act, and offences relating to voyeurism and the recording and distribution of intimate images under Divisions 15B and 15C of the Crimes Act. The Government states that despite the distinction drawn between children under the age of 16 and 18 for child abuse material offences, the NSW Government considers that the commercial sexual exploitation of children under the age of 18 is prohibited in NSW.

While noting that the NSW legislation provides protection to children under 16 years of age regarding their involvement in the production of child abuse material and to children above 16 years if they do not consent, the Committee once again emphasizes the importance of distinguishing between the age of sexual consent and the age for protection 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, and that neither the age of consent nor the physical appearance of a child affects the obligation to prohibit the worst forms of child labour. Therefore, 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 once again urges the Government to take the necessary measures to specifically extend this prohibition up to 18 years.

Clause (c). Use, procuring or offering of a child for illicit activities. Provincial legislation. 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. It therefore urged the Government to take the necessary measures to prohibit the use, procuring or offering of a child under 18 years for illicit activities.

The Committee notes with satisfaction that a new provision which prohibits the recruitment of children under 18 years to engage in criminal activity has been introduced under section 148F of the Criminal Code Amendment Act No 6 of 2021.

The Committee is raising other matters in a request addressed directly to the Government.