Legislative Assembly for the ACT: Week 6 Hansard (22 June) . . Page.. 2437..
MS DUNDAS (continuing):
international law. The rights of children are always going to be an important topic for any discussion on human rights. Our own Human Rights Act recognises that "Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind."
This bill ensures that the ACT complies with the Convention on the Elimination of the Worst Forms of Child Labour, as well as the optional protocol to the Convention on the Rights of the Child. The passing of this bill reinforces the ACT's commitment to international law and the protection of human rights.
MS TUCKER (1.10): I will not speak at length on the Crimes Legislation Amendment Bill 2004. The Greens will be supporting it. It is part of the national system designed to meet our international obligations under the International Labour Organisation's Convention No 182 concerning the prohibition and immediate action for the elimination of the worst forms of child labour.
This bill relates to the use of children for prostitution and pornography. It extends the definition of "child"in this situation to those under 18 years. This does not affect the laws about age of consent. The offences relating to children under 12 years incorporate an absolute liability about the age of the child. This is a very serious matter. The maximum penalty is 1,500 penalty units or 15 years imprisonment or both. These are very high penalties. The absolute liability needs to be considered carefully. It is unusual to have no defence available for such a high penalty.
The government points out in its response to the Scrutiny of Bills report that the absolute liability relates to only part of the offence. There is still the fact and intent of the act-that is, whether it was pornography or prostitution, which is not absolute liability. The absolute liability relates to the age of the child involved. Is this reasonable? Should the fact of involving a 12-year-old be something to which there is no answer? Accepting this would indicate that we believe there is no justification whatsoever, that it is not reasonable to make a mistake about the age of a child under 12-the fact of their being under 12 years old, even if the child tries to represent themselves as older.
For offences relating to children between 12 and 18 years old, the age component of the offence is strict liability. Strict liability allows the defence of mistake of fact, which means, according to the scrutiny report, that it is "open to the defendant only if the person considered whether or not facts existed and was under a mistaken but reasonable belief about the facts". Both of these approaches are consistent with the model proposed in chapter 5 of the model criminal code.
These changes would, in the view of the government, make absolutely sure that we meet our obligations under the ILO convention. However, while law changes and strong penalties may be part of the equation, the other part is the culture that does not allow it. Changes to the culture of sexualisation of youth in our society are a more complex matter.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (1.13), in reply: I thank members for their support for this significant piece of legislation, as members have indicated. The Crimes Legislation Amendment Bill 2004 facilitates the capacity of the Commonwealth to ratify