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Treaty specific report

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Treaty specific report

    Treaty specific report

    to be read in conjunction with Australia’s Common Core

    Document 2007 and Australia’s Fourth Report

    under the Convention on the Rights of the Child

    Initial Report

    under the Optional Protocol to the Convention on the

    Rights of the Child on the Sale of Children, Child

    Prostitution and Child Pornography

    Australia

    December 2008

    Table of Contents

    ABBREVIATIONS i EXECUTIVE SUMMARY ii INTRODUCTION 1 A. Preparation and structure of report 1 B. Consultation with State and Territory Governments 1 C. Consultation with Non-Government Organisations (NGOs) 2 D. External Territories 2 IMPLEMENTATION OF THE OPTIONAL PROTOCOL 3 1. General measures of implementation 3 2. General Convention principles 6 3. Data 7 4. Prevention 9 5. Prohibition and related matters 11 6. Protection of the rights of victims 11 7. International assistance and cooperation 12 8. Other legal provisions 16 ANNEX 1: STATE AND TERRITORY MEASURES TO IMPLEMENT OPTIONAL

    PROTOCOL 17 Criminal law obligations 17 Government agencies responsible 20 Data 22 Prevention 24 Protection of the rights of victims 26 ANNEX 2: LEGISLATION AND ADMINISTRATIVE ARRANGEMENTS 31 ANNEX 3: CRIMINAL OFFENCES 33

Abbreviations

ACT Australian Capital Territory

    AFP Australian Federal Police

    AGD Commonwealth Attorney-General's Department AIC Australian Institute of Criminology AusAID Australian Agency for International Development CDPP Commonwealth Director of Public Prosecutions Cth Commonwealth of Australia

    DIAC Department of Immigration and Citizenship NSW New South Wales

    NGO Non-Government Organisation

    NT Northern Territory

    CPOT Child Protection Operations Team Qld Queensland

    SA South Australia

    Tas Tasmania

    TSET Transnational Sexual Exploitation and Trafficking UN United Nations

    UNICEF United Nations Children‘s Fund

    VGT Virtual Global Taskforce

    Vic Victoria

    WA Western Australia

    i

Executive summary

    The Australian Government is pleased to present to the Committee on the Rights of the Child Australia‘s initial report under the Optional Protocol to the Convention on the Rights of the

    Child on the Sale of Children, Child Prostitution and Child Pornography (Optional Protocol). The Optional Protocol was developed to protect children from the worst forms of commercial sexual exploitation. It further elaborates some of the important protections for children contained in the Convention on the Rights of the Child (the Convention). UNICEF estimates that one million children (mainly girls, but also a significant number of boys) enter the multi-billion dollar commercial sex trade every year. The Optional Protocol requires States parties to criminalise (domestically and transnationally) serious violations of children‘s rights,

    including the sale of children for the purposes of sexual exploitation, organ transfer, forced labour and certain adoptions, as well as offences relating to child prostitution and pornography.

    Australia was an active participant in the development and negotiation of the text of the Optional Protocol. Australia remains strongly supportive of, and has a continuing commitment to, the promotion and protection of the rights enunciated in the protocol, and also to the broader goals of the Convention.

    Australia has taken many steps to implement the Optional Protocol and is satisfied that it has measures in place that will secure the rights of children under the terms of both the Convention and Optional Protocol.

    This report should also be read in conjunction with Australia‘s Fourth Report under the Convention and Australia‘s Common Core Document.

    ii

Introduction

    A. Preparation and structure of report

    1. Australia signed the Optional Protocol on 18 December 2001 and ratified it on 8 January 2007. It entered into force for Australia on 8 February 2007 pursuant to article 14(2) of the Optional Protocol.

    2. This is Australia‘s initial report to the Committee on the Rights of the Child (the Committee) submitted under article 12, paragraph 1 of the Optional Protocol. 3. This Report has been prepared in accordance with the Committee‘s Revised Guidelines Regarding Initial Reports to be Submitted by States Parties under Article 12,

    1Paragraph 1 of the Optional Protocol and the Harmonized Guidelines on reporting under the

    international human rights treaties, including guidelines on a common core document and

    2treaty-specific targeted documents. Accordingly this report is a supplement to Australia‘s

    3Common Core Document of June 2006 and should be read in conjunction with that Core

    Document and with Australia‘s Fourth Report under the Convention on the Rights of the

    Child.

    4. This supplementary report addresses information on the specific steps taken to implement the Optional Protocol.

    5. The reporting period for this report is January 2007 to December 2008. B. Consultation with State and Territory Governments

    6. Australia‘s federal system is described in paragraphs 16 to 31 of Australia‘s Common Core Document. As the State and Territory Governments are responsible for many of the government activities that give effect to the Optional Protocol, extensive consultations have occurred between the Australian Government and State and Territory Governments in implementing the Optional Protocol.

     1 Adopted by the Committee at its forty-third session on 29 September 2006: CRC/C/OPSC/2 (3 November 2006). 2 Committee on the Rights of the Child, General Guidelines Regarding the Form and Content of Periodic Reports to be Submitted by States Parties under Article 44, Paragraph 1(b), of the Convention, CRC/C/58/Rev.1 (29 November 2005); Fourth Inter-Committee Meeting, Harmonized guidelines on reporting under the international human rights treaties, including guidelines on a common core document and treaty-specific targeted documents, HRI/MC/2005/3 (1 June 2005). 3 HRI/CORE/AUS/2007.

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    7. The measures taken by the State and Territory Governments are set out in Annex 1 to this report. Further detail regarding these measures can be provided at the Committee‘s

    request. The report itself describes the measures taken by the Australian Government. C. Consultation with non-government organisations (NGOs)

    8. The Government sought the views of NGOs in drafting this report and took them into account as appropriate.

    D. External Territories

     Of these, only 9. The territory of Australia includes a number of external Territories.

    Norfolk Island and the Indian Ocean Territories, comprising the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island, are inhabited. Norfolk Island is essentially self-governing, for example, it has its own health and social security systems. However, the Australian Government retains the power of veto over legislation in some areas.

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Implementation of the Optional Protocol

    1. General measures of implementation

    10. Child exploitation is a serious issue for the international community and for Australia. Recent policy and legislative initiatives at both the Commonwealth and State and Territory levels have demonstrated Australia‘s commitment to adopt strong measures to combat slavery, sexual servitude and people trafficking, especially with regard to children. 11. At the Commonwealth level, compliance with the obligations of the Optional Protocol is established under the Criminal Code Act 1995 (Cth), the Crimes Act 1914 (Cth) and the

    Customs Act 1901 (Cth). Jurisdictional requirements are met by these Acts, in combination with the Crimes at Sea Act 2000 (Cth) and the Crimes (Aviation) Act 1991 (Cth). Obligations

    relating to adoption are met by the operation of the State and Territory adoption legislation and the Commonwealth migration laws. Much of the subject matter of the Optional Protocol depends on State and Territory legislation and policy measures, notably those regarding child prostitution and child pornography. The Commonwealth is satisfied that the legislation of each of the States and Territories complies with the Optional Protocol.

Criminal law obligations

12. At the Commonwealth level, there are offences in relation to:

    ; child sex tourism that takes place outside Australia under the Crimes Act

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    ; slavery, sexual servitude and deceptive recruitment for sexual services, sale of

    5a child, debt bondage and people trafficking under the Criminal Code, and

    ; online child sexual abuse under the Criminal Code including using a carriage

    service for child pornography material; possessing, controlling, producing,

    supplying or obtaining child pornography material for use through a carriage

    service; using a carriage service for child abuse material; possessing,

    controlling, producing, supplying or obtaining child abuse material for use

    through a carriage service; using a carriage service to procure persons under

     4 Part IIIA. The Crimes Act 1914 (Cth) is available at:

    <http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/33D99B720D2108B6CA25753E0010A68C>. 5 Schedule to the Criminal Code Act 1995 (Cth), available at:

    <http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/A2606AF5A9792124CA2575A10001B086?OpenDocument>.

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    16 years of age; and using a carriage service to ―groom‖ persons under 16

    6 years of age.

    13. It is also an offence to attempt to commit one of these offences or to participate or be complicit in the commission of them.

    14. The Optional Protocol requires that States take measures to prohibit the production and dissemination of material that advertises the offences in the Optional Protocol, for example an advertisement for an Internet site that displays child pornography. Australia has enacted legislation to ensure that these are offences (see Annex 3).

    15. The legislation mentioned above allows the Australian Government to prosecute the relevant offences where they are committed inside Australia, or on board an Australian registered ship or aircraft or where the extradition of an alleged offender who is an Australian national is refused and the person is in Australia. Some offences also provide for extended jurisdiction.

    16. Australia ensures the rights and best interests of the child are protected throughout the process of prosecuting an alleged offender. In particular, the vulnerability and special needs of child witnesses are recognised and the interests of the child in criminal justice processes are protected. Proper rehabilitation assistance is available for victims of the relevant offences. 17. The Australian Government keeps its criminal law framework in relation to the sale of children, child prostitution and child pornography under ongoing review and amends this framework in response to operational experience.

    Extradition, mutual assistance and other international cooperation obligations

18. Australia is able to make extradition requests under the Extradition Act 1988 (Cth)

    for the offences under the Optional Protocol where no extradition treaty exists between Australia and another country, if that country is a State Party to the Protocol. On 8 February 2007, the Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Regulations 2006 (the Regulations) entered into force. The Regulations currently adopt a ‗list-based‘ approach

    in prescribing States Parties to the Optional Protocol in a schedule to the Regulations. This enables Australia to receive requests from prescribed States Parties, or other countries where

     6 Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No.2) 2004, available at:

    <http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/asmade/bytitle/A0BA7D273D5F7225CA256F72001197AA?OpenDocument>.

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    an extradition relationship exists between Australia and that country, for the extradition of a person where the offence is committed outside Australia.

    19. Since the Protocol entered into force, Australia has not made or received any extradition requests under the Protocol, or for any offences referred to in the Protocol. 20. Australia is able to provide mutual assistance to other States Parties, to assist in the investigation or prosecution of the relevant offences or to take action in restraining or forfeiting the proceeds of such offences. Under Australia‘s mutual assistance legislation, Australia is able to provide assistance to any country without the need for a mutual assistance treaty.

    21. The Australian Federal Police (AFP) has an international network which enables it to engage with the police forces of other States Parties in the investigation of relevant offences. 22. The Australian Government has taken a strong stance on people trafficking and child exploitation in the region. Australia has strengthened international cooperation arrangements for the prevention, detection, investigation, prosecution and punishment of the offences relevant to the Protocol, for the assistance of child victims and to address the root causes of the offences by providing appropriate assistance to other countries, most particularly in the Asia-Pacific region.

Proceeds of crime obligations

    23. Australia ensures that the instruments and proceeds of crime are subject to seizure and confiscation. The Proceeds of Crime Act 2002 (Cth) provides for the confiscation of proceeds

    and instruments of Commonwealth crimes. The Act contains provisions enabling the forfeiture of proceeds of crime on a civil standard of proof (balance of probabilities). The Act could be applied to confiscate proceeds (and instruments) of offences against children.

Government agencies responsible

    24. The Australian Government is taking a strong leadership role through concerted domestic, bilateral, regional and international efforts to encourage domestic cooperation between the States and Territories, local governments, NGOs and the community sector. 25. The AFP Transnational Sexual Exploitation and Trafficking (TSET) Team was established in October 2003 to investigate claims of slavery, sexual servitude and child sex tourism. Child sex tourism offences are now investigated by the Child Protection Operations Team (CPOT). The 23-member TSET Team is highly mobile, intelligence-driven and able to respond flexibly and quickly to emerging cases anywhere in Australia. It brings together

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    investigators and specialist analysts to tackle people trafficking and sexual exploitation. It targets and investigates trafficking syndicates and makes a substantial impact on combating sexual servitude in Australia.

    26. The AFP CPOT (formerly the Online Child Sex Exploitation Team) commenced work in January 2005 focussing on investigation, providing national assessment and coordination capability for all international and national referrals of offences relating to images and material depicting child pornography and child abuse material on the Internet as well as the use of the Internet to abuse children. A team of 60 investigators provides capacity across a range of functions including intelligence targeting and infiltration, investigation and computer forensics, prevention and education. CPOT brings together international law enforcement agencies and organisations to collaboratively pursue and combat the exploitation of children online.

    27. The Department of Immigration and Citizenship (DIAC) and the AFP collaborate in training immigration compliance officers under the curriculum of the College of Immigration on how to identify possible indicators of people trafficking during compliance field operations and are instructed to refer any matters to the AFP for investigation under an agreed referral protocol. This training invites participation from relevant NGOs. 28. The Attorney-General‘s Department, as the Australian Central Authority under the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (Hague Convention), is responsible for ensuring that Australia meets its obligations under that Convention. The Attorney-General‘s Department has taken on primary

    responsibility for all of Australia‘s intercountry adoption programs.

     2. General Convention principles

    29. The general principles, which include non-discrimination, best interests of the child, right to life, survival and development, and respect for the views of the child, are all reflected in the legislation and policy to implement the Optional Protocol.

    30. Australia‘s interpretation of these principles and means of implementation are outlined in Australia‘s First, Second and Third Combined and Fourth Reports under the Convention.

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