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

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 1 September 2014.

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 Government stated that since the age of sexual consent in New South Wales was 16 years, raising the definition of a child to 18 years for the purposes of child pornography would lead to criminalize the depiction of otherwise legal conduct. Emphasizing that the age of sexual consent does not affect the obligation to prohibit this worst form of child labour, the Committee urged the Government to take the necessary measures to extend the prohibition on child pornography up to 18 years.

In this regard, the Committee notes the observations made by the ACTU that the NSW is yet to take the necessary measures to extend the provisions prohibiting child pornography up to 18 years to ensure compliance with Article 3(b) of the Convention.

The Committee notes the Government’s reference to the new definition of “child abuse material” introduced by section 91FB of the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 which replaces the word “pornographic performances” and “child pornography” as used under section 91G and 91H of the Crimes Act. According to section 91FB of the Crimes Amendment Act, “child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all circumstances, offensive: (a) a person who is, or appears to be or is implied to be, a child as a victim of torture, cruelty or abuse; (b) or a person who is, or appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons). The Committee notes the Government’s indication that increasing the age for pornography or pornographic performances to 18 years would create difficulties for the prosecution while proving the age of the person depicted, as the physical differences between the appearance of a 17-year old and a 19-year old are less obvious than the physical differences between a 14-year old and 16-year old.

The Committee therefore observes that while the NSW legislation provides protection to children under 16 years with regard to their use in the production of child abuse material, children above 16 years may be protected if they appear to be under the age of 16 years. 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. It again 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 once again 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 from 16 years of age by the penal legislation does not include the freedom to participate in pornographic performances.

Articles 3(d) and 4(1). Hazardous work and determination of hazardous types of work. Provincial legislation. NSW, South Australia and Tasmania. The Committee previously observed that there was no legislative prohibition for hazardous work by children under 18 years of age in these three provinces. The Committee, therefore, requested the respective Governments to take 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 notes with satisfaction that the governments of NSW, South Australia and Tasmania have adopted the Work Health and Safety Act 2012 (WHS Act) which extends the provisions relating to the protection of health and safety to all workers, including unpaid workers as well as the Work Health and Safety Regulation 2012 (WHS Regulation) which prohibits the employment of children under 18 years in high-risk work. The Committee notes that according to section 89(2)(d) of the WHS Regulation, a high-risk work license may be granted only to persons who are at least 18 years of age. “High-risk work” as per section 5 of the WHS Regulation includes any work set out in schedule 3 as being within the scope of a high-risk license. The Committee notes that schedule 3 of the WHS Regulation contains a list of 28 types of activities classified as high-risk work including: scaffolding, dogging, rigging, crane and hoist operations, reach stackers, forklift operation, and pressure equipment operation.

Victoria. The Committee previously noted that section 12 of the Child Employment Act 2003, prohibits the employment of a child (defined as a person under the age of 15 years) in door-to-door selling, in a fishing boat, on a building or construction site or in any other prohibited work and 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. Accordingly, the Committee requested the Government to take the necessary measures to prohibit the employment of children under 18 years in work which is likely to be harmful to their health, safety or morals.

The Committee notes that no changes in legislation have taken place in Victoria in this regard. The Committee, therefore, again reminds the Government 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 again urges the Government 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.

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