CHILD LABOR INFORMATION FOR GSP 2008 REPORT

UNCLAS CANBERRA 000073

SIPDIS

DOL/ILAB FOR TINA MCCARTER; DRL/ILCSR FOR TU DANG

E.O. 12958: N/A
TAGS: ELAB EIND ETRD PHUM SOCI USAID
SUBJECT: CHILD LABOR INFORMATION FOR GSP 2008 REPORT

REF: 08 STATE 127448


1. Reftel requested information on new developments regarding
child labor in Australia's overseas territories, of which
there are three inhabited territories: Norfolk Island,
Christmas Island, and the Cocos Islands. There has been no
change over the past year regarding Australia's
implementation of laws and regulations relating to child
labor in these territories.


2. For DOL's information, responses for Norfolk Island, keyed
to the questions in para 9 in reftel, that were provided by
the Government of Australia, follow in para 3 below. For
Christmas Island and Cocos Island, see para 4 below.


3. Norfolk Island

A) Laws and regulations proscribing the worst forms of child
labor.

There is no minimum age for admission to work but employment
of children under the age of 15 years is subject to statutory
limitations under Section 24 of the Employment Act 1988
(Norfolk Island).

Section 20(2)(b) of the Employment Act enables employment
contracts to be entered into or varied despite the legal
incapacity of either the employer or employee to enter into a
contract.

Section 13(1)(b) prescribes the minimum wages to be paid to
persons under the age of 16 years, 16 and under 17 years, as
well as 17 and under 18 years where the employee is aged less
than 18 years.

Assuming the reference to 'hazardous work' to be a reference
to the definition in Article 3(d) of the Convention as set
out in clause 1 of the Chief Minister's submission above,
Part 4, Sections 48 to 64 (Safe Working Practices) of the
Employment Act set out the statutory duties and penalties in
regard to employers and employees in regard to workplace
health and safety issues.

Employment Inspectors and Child Welfare officers are
appointed by law (the latter under the Child Welfare Act
1937) to monitor and take action in regard to the protection
of workers (particularly those under 18 years of age).

The Norfolk Island Government notes the definition in Article
3 of the worst forms of child labor as comprising (and
therefore limited to) the following:
(a) all forms of slavery or practices similar to slavery,
such as the sale and trafficking of children, debt bondage
and serfdom and forced or compulsory labor, including forced
or compulsory recruitment of children for use in armed
conflict;
(b) the use, procuring or offering of a child for
prostitution, for the production of pornography or for
pornographic performances;
(c) the use, procuring or offering of a child for illicit
activities, in particular for the production and trafficking
of drugs as defined in the relevant international treaties;
(d) 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.
It is noted that child or children are, for the purposes of
the convention all persons under the age of 18 years: see
Article 2.

Slavery or practices similar to slavery generally (and
therefore including in relation to children) is a serious
offense under Section 268.10 - Crime against Humanity -
enslavement, Section 268.15 - Crime against Humanity - Sexual
Slavery, Section 268.60 - War Crime - sexual slavery, 268.83
- War Crime - sexual slavery (non-international conflict),
Section 270.2 - slavery is unlawful, Section 270.3 - slavery
offenses of the Criminal Code Act 1995 (Commonwealth) which
by section 3A applies to Norfolk Island. Under the Criminal
Code Act 2007 (Norfolk Island),slavery as such is not
defined as a specific territory offense but sexual servitude
Qdefined as a specific territory offense but sexual servitude
is a serious offense under Section 138 of that Norfolk Island
law (as it is under Section 270.6 of the Criminal Code Act
1995).

The sale and trafficking of children and debt bondage would
generally be covered by the Criminal Code Act 1995 and by
relevant offenses under the Immigration Act 1980 (Norfolk
Island) in regard to false or misleading documents and
information being provided or for persons entering the
territory for illegal purposes. Section 271.4 of the Criminal
Code Act 1995 makes trafficking in children a serious offense
punishable by up to 25 years imprisonment (which law is
applicable to Norfolk Island by section 3A of that Code). It
is also an offense to traffic in children between one place
in Australia and another (see Section 271.7 - domestic
trafficking in children).

In regard to forced labor, the Norfolk Island Government
noted that the Employment Act governs the employment of
persons under 18 years and requires that such persons (with
the consent of their parents) can only be employed on the
basis of written agreements with strict conditions as to the
availability and freedom of the child for schooling and
education, medical needs and withdrawal of labor upon notice.
A child might only be compelled to perform work as part of a
community service condition of a release upon probation order
issued by a court upon a juvenile offender under the Child
Welfare Act 1937 (Norfolk Island) or where the child is
directed to perform work whilst in court ordered detention or
imprisonment arising from a court sentence imposed upon such
a child according to law applicable to the territory. In such
circumstances, the Norfolk Island Government would rely upon
the judgment and powers of the relevant correctional officers
and authorities for a determination of the type and period of
work appropriate to each particular child under their control
in the circumstances.

In accordance with Article 3 (b),the use or offering of any
child for prostitution, pornography or for pornographic
performances is in each instance a serious offense under the
laws applicable to Norfolk Island: see Section 268.16 - Crime
Against Humanity - Enforced Prostitution, Section 268.61- War
Crime - Enforced Prostitution -International Conflict,
Section 268.84 - War Crime - Enforced Prostitution -
Non-international conflict, Section 474.20 - production of
child pornography material for use in offense of using
carriage service for child pornography material) of the
Criminal Code Act 1995 and see also Part 3.7, Sections 122 to
126 of the Criminal Code Act 2007 in regard to offense of
using child for production of child pornography etc.

In regard to recruitment of children for armed conflicts, the
Criminal Code Act 1995 creates serious offenses in regard to
compulsory or forced recruitment of children for armed
conflicts (see Section 102.4 (recruiting for a terrorist
organization),Section 268.68 - War Crime - conscripting or
enlisting children (under 15 years) for international
conflict, Section 268.88 - War Crime - conscripting or
enlisting children (under 15 years) for non-international
conflict, which are offenses applicable to Norfolk Island by
virtue of the application of the Criminal Code Act 1995 to
Norfolk Island. It should be noted however that the
recruitment of children for school-based or junior volunteer
cadet training units (where such units are not generally
expected or required to participate in any armed conflict) is
considered lawful where cadets are part of the Australian
Cadets Corps established under the Defense Act 1903
(Commonwealth) where it is applicable to Norfolk Island.

It should be noted that Section 5A of the Defense Act 1903
states: "This Act extends to the external Territories as if
each of those Territories were part of Australia." see
Section 18(1),Norfolk Island Act 1979 (Commonwealth).

Section 59 (c) makes person ages between 18 years and 60
years who have resided Australia for not less than 6 months
Qyears who have resided Australia for not less than 6 months
liable to be called for service in the defense force in time
of war if called upon under Section 60.

Section 62 governs the establishment and use of the
Australian Army Cadets (formerly the Australian Cadet Corps)

Section 118B relieves apprentices who voluntarily enlist to
serve in the defense forces in time of war from liability or
legal action due to a breach of their articles of
apprenticeship (what happens to persons called by allotment
to compulsorily serve under section 60 is not clear).

Under Regulation 7 of the Cadet Forces Regulations 1977
(Commonwealth),the minimum age for Army and Navy Cadets is
12 years and 6 months while the minimum age for Air Force
Cadets is 13 years.

The Naval Defense Act 1910 (Commonwealth) extends to every
Territory: Section 5A.

The Air Force Act 1923 (Commonwealth) extends to every
Territory: Section 4.
B) Regulations for implementation and enforcement of
proscriptions against the worst forms of child labor.

The Norfolk Island Government, in consultation with the
Commonwealth of Australia and with relevant employer and
worker representatives will consider and determine as
appropriate from time to time what other activities might
comprise 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 under Article 3( d) having regard to
the lists of such work to be developed, examined and revised
from time to time under Article 4 of the Convention.

In regard to Articles 5, 6 and 7, the Norfolk Island
Government in cooperation with the Commonwealth of Australia
shall use its best endeavors within the funding and resources
available to it from time to time to encourage, facilitate
and promote the implementation, development of programs, and
education regarding the provision of the convention within
the territory.

Given the small geographic and population size of the Norfolk
Island community, and violations or abuses in regard to child
labor or child exploitation are expected to be quickly
detected and reported for investigation and action.

The Norfolk Island Government allocates the level of
resources appropriate within the constraints of its budget
for the purposes of enforcement of the Employment Act and
Child Welfare Act as well as for employment or appointment of
appropriate inspectors.

There have been no known cases or reports of child labor
abuse or exploitation to date so far as the Government of
Norfolk is aware such that no child labor investigations were
required to be conducted over the past year.


C) Whether there are social programs specifically designed to
prevent and withdraw children from the worst forms of child
labor.

N/A.

D) Does Norfolk Island have a comprehensive policy aimed at
the elimination of the worst forms of child labor?

The Education Act 1931 (Norfolk Island) expressly prevents
the charging of fees for provision of education except for
persons over 15 years of age for teaching of any special
subject outside the normal course and for teaching in evening
classes: see Section 14, Education Act.

Section 16 and 18 of the Education Act imposes a statutory
duty on parents to cause the attendance of school aged
children at a public or private school registered under the
Education Act.

E) Is Norfolk Island making continual progress toward
eliminating the worst forms of child labor?

N/A


4. Responses for Christmas Island and Cocos Islands:

Child labor laws in force in the state of Western Australia
apply to the Indian Ocean Territories. The Children and
Community Services Act 2004 and the School Education Act
1999, are laws in effect in the state of Western Australia
that cover child labor. The federal Workplace Relations Act
of 1996 is also extended to the Indian Ocean Territories.

CLUNE