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National law and policies on minimum ages – Australia

 

According to the CRC, laws and policies must be directed to the best interest of the child. This is especially so in provisions that aim to safeguard the child against exploitation or an early end to childhood, i.e. in the instances where children are most vulnerable and at risk. Yet such safeguards are often ignored and different areas of legislation found to clash with each other. What happens if the age for the end of compulsory education is 14 but the minimum age of employment is 12? Or vice versa? What if a girl can be married before school leaving age - will she then return to school? And who ensures schooling in prisons, when in reality education should protect children from incarceration?

 

 

 

 

With 192 parties to it, the Convention on the Rights of the Child (CRC) is the most widely ratified UN treaty. Each State Party must submit periodic reports to the Committee on the Rights of the Child, which uses this process to monitor State compliance with the treaty. The vast majority of the information on minimum ages presented on these pages is taken directly from such reports (occasionally, if these failed to include relevant information concerning minimum ages, other components of the reporting process - such as the Committee’s Concluding Observations - were consulted). States Parties’ reports constitute self-assessment by governments and are therefore authoritative sources, emanating directly from those empowered to make decisions. Using this type of sources also permits a range of actors to hold governments accountable for the standards which they report under the CRC. The sections of these reports have been reproduced faithfully, and readers are encouraged to make use of the full original text, available here.

 

Individual country reports are often written by diverse parts of the government, and frequently run to more than 100 pages. Moreover, within some states’ legal systems there are various recognised sources of law, which frequently generate conflicting minimum ages. Distilling precise numbers out of such documents is therefore a precarious task. While we would encourage cross-country comparison, we would also stress the danger that those countries with a more honest engagement with the reporting process might come off worse when compared with those which would mis-represent the degree of compliance, whether wilfully or not. For a full explanation of the principles that guided us in our analysis, please visit the introductory pages here.

Sources:

2nd and 3rd periodic reports combined: CRC/C/129/Add.4, 29 December 2004
Initial report: CRC/C/8/Add.31, 1 February 1996
 
Minimum age for the end of compulsory education
From initial report
130. In all States and Territories except Tasmania education is compulsory for children between the ages of six and 15 years. In Tasmania education is compulsory for children between the ages of six and 16 years. Exceptions to this include where the child or parent is ill, the child is satisfactorily educated at home, or where special psychiatric treatment is required and it is deemed to be in the best interests of the child to be exempt from school attendance.
 
Minimum age for admission to employment
From 2nd and 3rd reports combined
478. Australian governments have not found it necessary to legislate for a general minimum age for employment (as per Article 2 of ILO Convention No. 138). As current law and practice is sufficient to protect children from harmful or exploitative forms of child labour, there is no perceived need for additional legislation.
From initial report
State and Territory matters
Australian Capital Territory
1698. The Childrens Services Act 1986 regulates the employment of children under the age of 15. The Act prohibits the employment of a child in hazardous employment without the consent of the Director of Welfare. Conditions are outlined for children employed for light work (eg errands, distributing newspapers, baby-sitting etc). A person may only employ a child in certain occupations, which are listed, or in a family business. The employment must be for less than 10 hours per week, and must not have a detrimental effect on the childs schooling. The Act imposes a penalty where activities may be dangerous to the health and safety of the child.
New South Wales
1699. The employment of children under the age of 15 years is regulated by the Department of Community Services under Part 4 of the Children (Care and Protection) Act 1987. There is a regulation (which includes a Code of Practice) under that Part which, together with the Act itself, give effect to the protection of the child from abuse and exploitation.
1700. The employment of children aged 16 to 18 years is regulated by the Department of Industrial Relations, Employment, Training and Further Education, and the relevant legislation is consistent with the terms of Article 32. Division 7 Part III of the Factories, Shops and Industries Act 1962 contains provisions safeguarding: the employment of children and young persons in factories (section 49); the employment of young persons in connection with machinery (section 51); the employment of young persons at night (section 54); and the weights that can be lifted or carried by young persons in factories (section 36).
Northern Territory
1702. The Education Act 1979 provides that no child between the age of six and 15 years is to be employed during school hours or at any other time which would make the child unfit or unable to attend school or receive instruction provided. The Community Welfare Act 1983 provides that children under 15 years of age will not be employed between 10.00 pm and 6.00 am and prohibits employment of children in dangerous activities without the consent of the Minister. While there is no inconsistency between the Convention and Territory legislation, there is no legislation which currently provides for employment or regulation of hours and conditions of employment or a minimum age for employment.
Queensland
1703. The relevant Acts do not specify minimum ages for employment, with the exception of the Workplace Health and Safety Act 1989. The Workplace Health and Safety Act 1989 provides that an employer shall not permit any male under the age of 18 years or any female to operate at a workplace where lead processing is used. The Health Act 1937 prohibits a person who has not attained the age of 18 years from obtaining a pest control operators licence or preparing pesticides for use by a pest controller. The Act also prohibits a person under the age of 17 years from mixing or loading agricultural chemicals intended for the use in aerial or ground application.
1704. The Education (General Provisions) Act 1989 indirectly addresses the issue of the legal minimum age for part-time and full-time employment by providing that a parent shall not employ or cause to be employed his or her child during school hours unless special dispensation has been granted. Education is mandatory until 15 years and therefore labour restrictions do not apply after that age.
1705. The Childrens Services Act 1965 prohibits any female child under the age of 17 years from engaging in street trading. However, boys over the age of 12 years may engage in street trading between the hours of 6.00 am and 10.00 pm, under certain conditions. Children are prohibited from engaging in street trading during school hours.
1706. The Childrens Services Act also makes it an offence for adults to employ children in the following occupations: relating to the procurement of children for employment in the performing arts, (for money); children who are under school leaving age are prohibited from working in racing stables, or as a jockey. This work is permitted if betting was not permitted in relation to the employment and if the proceeds were to go to schools, churches, or charity; under this section of the Act, it is also an offence to employ children in any dangerous or indecent performances; and any such children engaged in the cinematographic industry, or who are working as a model or engaged in public entertainment, who are under school leaving age require a permit issued by the Director-General of the Department of Family Services and Aboriginal and Islander Affairs. (In practice this delegation rests with the Regional Manager of the area in which the child resides.)
1710. Section 78 of the Education Act provides that a child of compulsory school age may not be employed during the hours at which he or she is required to attend school or during any part of a day of night in any labour or occupation that is such as to render the child unfit to attend school or to obtain the proper benefit from the instruction provided for him or her.
Tasmania
1711. The Child Welfare Act 1960 governs the public performance of children under 14 years, trading in a public place under the age of 11 years and trading in a public place under the age of 14 years after 9.00 pm.
Victoria
1712. In Victoria the Community Services Act 1970 prohibits the employment of a child under 15 years of age without a child employment permit issued by the Department of Labour.
Western Australia
1715. In Western Australia a child may engage in part-time employment at any age subject to any restrictions relating to the particular occupation.
1716. The Child Welfare Act 1947 limits the part-time employment of children in street trading to those aged 12 and above and to daylight and out of school hours, licences the employment of children under 15 in entertainment and advertising and imposes penalties for employing children for indecent or pornographic purposes.
 
Minimum age for marriage
From initial report
121. In all States and Territories the age of majority is 18. Under the Federal Marriage Act 1961, the legal minimum age for marriage is 18 years. However, with court approval in exceptional circumstances, a marriage may take place if one of the parties has attained 16 years.
 
Minimum age for criminal responsibility
From 2nd and 3rd reports combined
72. […] Recent changes to State, Territory and federal laws have resulted in the standardisation of the age of criminal responsibility to 10 years of age in all jurisdictions. Furthermore, there is a rebuttable presumption that children aged between 10 and 14 are incapable, or will not be held accountable, for committing a crime, either because of the absence of criminal intent, or because they did not know that they should not have done certain acts or omissions.
 
Sources:
2nd and 3rd periodic reports combined: CRC/C/129/Add.4, 29 December 2004
Initial report: CRC/C/8/Add.31, 1 February 1996