Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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 4 October 2017.

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 also noted the introduction of “child abuse material” by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 which replaces the word “pornographic performances” and “child pornography” as used under Division 15A 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 Government stated that since the age of sexual consent in NSW 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. The Government also indicated 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.

In this regard, the Committee notes the observations made by the ACTU that 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 information in its report that the Government of NSW is committed to protecting all young persons from being used in pornography without their consent. Children up to the age of 18 years, as well as adults, are protected from commercial sexual exploitation which involves threats or force. The Government indicates that it is an offence under section 80D of the Crimes Act 1900 to cause another person to enter into or remain in sexual servitude, which is defined as the commercial use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others, by the use of force or threats. The maximum penalty for this offence is 15 years’ imprisonment. If the offence is committed against a person under 18 years, the maximum penalty is imprisonment for 20 years. Moreover, the Government of NSW recently introduced new criminal offences of intentionally taking or recording an intimate image of a person without consent, and of sharing an intimate image without consent (the Crimes Amendments (Intimate Images) Bill 2017, assented to on 27 June 2017).

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. 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.

Articles 3(d) and 4(1). Hazardous work and determination of hazardous types of work. Provincial legislation. 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 the age of 17 years from working underground in any mine. The Committee therefore 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 Government states that the prescriptive measures contained in the Child Employment Act 2003 are considered suitable for children under the age of 15 years, and that occupational health and safety legislation contains obligations on employers to ensure that children over this age are protected from harm in workplaces. 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 must be prohibited for all children under 18 years of age. The Committee also recalls that, 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 once again urges the Government to take the necessary measures to ensure that children under 18 years of age in Victoria 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 addressed directly to the Government.