Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Minimum Age (Fishermen) Convention, 1959 (No. 112) - Australia (Ratification: 1971)

Article 2 of the Convention. Minimum Age. Commonwealth. The Committee notes the information provided by the Government in its report that Marine Order 51 and Marine Order 505, which were made under the Navigation Act 2012 and the National Law, are legislative instruments and set out minimum age requirements for qualifications of fishers. The Committee takes note of this information.

South Australia. In its previous comment, the Committee had requested the Government to provide further information on the exemptions granted by the Minister pursuant to section 81A of the Education Act 1972 to employ a child of compulsory school age. The Committee notes the Government’s indication that while it cannot provide detailed information in this regard, it considers that there is little opportunity for the Convention to be breached in practice, given that a child is of compulsory school age until the age of 16 years, and that, according to section 78 of the Education Act 1972, employers are prohibited from employing a child of compulsory school age during school time or in any labour or occupation that renders, or is likely to render, the child unfit to attend school. However, the Government recognizes that there is no law, other than section 78 of the Education Act 1972, which prohibits children under the age of 15 years from working out of school or during their school holidays. The Committee therefore requests the Government to indicate any measure taken to comply with the general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)-(3) and 4 of the Convention.

Queensland. The Committee had requested the Government to bring the Education (General Provisions) Act 2006 and the Child Employment Act 2006 into conformity with the Convention by including a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Government did not provide a specific reply on this point. The Committee has noted that section 4 of the Child Employment Regulation 2006 sets the minimum age for all types of work to 13 years, except for supervised delivery work, which is 11 years. In light of the above, the Committee requests the Government to indicate the measures taken or envisaged to bring the legislation into conformity with this requirement of the Convention.

Western Australia. The Committee had requested the Government to include in its legislation a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Committee notes the Government’s indication that the Department for Child Protection and Family Support is considering, as part of a 2017 statutory review of the Children and Community Services Act 2004, the possibility of including such a prohibition. The Committee notes that while the Children and Community Services Act 2004 sets in its Part 7 restrictions on the employment of children under the age of 15 years, it contains exceptions in relation, among others, to a family business. In this regard, the Committee recalls that Articles 2(2)–(3) and 4 of the Convention provide for limited exceptions that do not include the work performed within a family business. In light of the 2017 statutory review, the Committee requests the Government to indicate the specific measures taken or envisaged to bring the legislation into full conformity with the requirements of the Convention.

New South Wales. The Committee had requested the Government to include in its legislation a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Committee notes the Government’s indication that the Children and Young Persons (Care and Protection) Act cannot set a minimum age for fishers, since it regulates children’s employment in a restricted range of industries, which does not include fishing. The Government further indicates that in practice minimum age is complied with thanks to the work of the Australian Maritime Safety Authority (which would refuse applicants for certificates of competencies who do not meet the minimum age), the Roads and Maritime Services (which check the ages of all certificate holders) and regular compliance activity combined with the application of penalty provisions. In this regard, the Government informs that in 2014–15 only one offence relating to operating without the required certificate of competency was reported. In light of the above, the Committee requests the Government to adopt the necessary measures to ensure full compliance with the requirements of the Convention.

Northern Territory. The Committee had requested the Government to include in its legislation a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Committee notes the Government’s indication that there are no current plans to amend the Care and Protection of Children Act to provide more specific protections in the area of employment of children under 15 years on board fishing vessels. The Government further states that the Department of Children and Families is unaware of any issues arising in relation to this area. In light of the above, the Committee requests the Government to adopt the necessary measures to ensure full compliance with the requirements of the Convention.

Tasmania. The Committee had requested the Government to provide more information on the exemptions granted by the Secretary of the Education Department pursuant to the Education Act 1994 to school-aged children from compulsory schooling to authorize them to work. The Government replied that no further information on exemptions is available. The Government further indicates that the Education Act 1994, together with the Youth Participation in Education and Training (Guaranteeing Futures) Act 2005, have been repealed by Schedule 6 to the Education Act 2016. Accordingly, the Committee requests the Government to indicate the relevant provisions of the Education Act 2016 which ensure compliance with the Convention and whether a general prohibition against the employment of children under the age of 15 on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention has been included in the current legislation. Furthermore, the Committee requests the Government to indicate whether the exemptions that can be granted pursuant to sections 13 and 247 of the Education Act 2016 by the Minister or by the Secretary of the Education Department, respectively, are issued in compliance with the Convention.

Moreover, the Committee understands that, for persons employed in commercial fishing, a minimum age is imposed through the Marine Safety (Domestic Commercial Vessel) National Law 2012, which regulates all domestic commercial vessels, including fishing vessels. In particular, the National Standard for Commercial Vessels (NSCV) Part D requires (including for “General Purpose Hand”, among others) that the minimum age of an applicant must be at least 16 years when the certificate of crew competency is issued, according to its chapter 2, clause 2.1(1)(a). The Committee takes note of this information.

Norfolk Island. The Committee had noted that section 24 of the Employment Act 1988 is not consistent with the Convention as it allows the employment, including as apprentice, of children under the age of 15 years under the conditions that go beyond the limited exceptions set out in Articles 2(2) and 4 of the Convention. The Committee notes the Government’s indication that the legislation and administrative regulations largely remained the same and that there is currently no commercial fishing activity in the Norfolk Island, except for limited island-based restaurant and café, take away fish catch suppliers who are highly dependent on favourable weather conditions. According to the Government, the only legislation controlling the minimum age of fishers is the Employment Act 1988. The Committee has noted that several provisions of this Act have been amended and this is reflected in the Norfolk Island Continued Laws Ordinance 2015 (Cth), but the relevant provision for the Convention, i.e. section 24 of the Act, remains unchanged. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure full compliance with the Convention.

Article 4. Exemptions for work on school-ships. Queensland. The Committee had requested the Government to explain how compliance is ensured with the requirements of the Convention under the Vocational Education, Training and Employment Act 2000 (VETA), which allows students and young persons of less than 15 years of age to take part in a range of employment types. The Committee notes the Government’s indication that: (1) the Further Education and Training Act (FETA) 2014 repealed the VETA; (2) the FETA does not contain provisions for the regulation of vocational placements, as the power in relation to this issue was referred to the Commonwealth; (3) apprenticeships and traineeships can be declared under the FETA, and can only be established under contracts which, according to its section 15(3), must also include the signed consent of a parent, if the apprentice or trainee is under 18 years of age; and (4) should there be any change to regulatory requirements for the employment of persons under 15 years on fishing vessels, an apprenticeships or traineeship declaration can be adjusted to reflect the new requirements. Recalling that Article 4 of the Convention allows exemptions to the rule on the minimum age only for work by children on board school-ships, provided that such work is approved and supervised by the competent authority, the Committee requests the Government to clarify how compliance is ensured with this requirement of the Convention and indicate the indicate any change to the regulatory requirements for the employment of persons under 15 years on fishing vessels.

Tasmania. The Committee notes the Government’s indication that, if a school-ship is built, owned and operated by a Tasmanian school, the related activities are conducted under the authority of the school; if the vessel is not owned by a school, an exemption from compulsory schooling to undertake work needs to be granted by the Secretary of the Department of Education under the Education Act 1994. The Committee further notes that the Government has indicated that, while the Tasmanian Marine Safety Agency (MAST) is the delegated authority for the effective operation of the National System, it is not responsible for matters relating to training or employment in the fishing industry. It is the Tasmanian Department of Education, according to the Government’s report, which is responsible for all matters related to the Education Act 1994 and Guaranteeing Future legislation. In light of the above, and taking into account that the Education Act 1994 and the Guaranteeing Future legislation have been repealed, the Committee requests the Government to indicate the new relevant provisions and the authority in charge of approving and supervising work done by children on school-ships or training-ships under Article 4 of the Convention.