Protection from exploitation, violence and abuse

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to protection from exploitation, violence and abuse?

Numerous provisions in human rights treaties require countries to take measures to protect persons from exploitation, violence and abuse. Exploitation, violence and abuse include:

  • advocacy of hatred that constitutes incitement to discrimination, hostility or violence
  • international child abduction
  • economic exploitation of children
  • abuse of people with disability
  • use of illegal drugs by children
  • sexual abuse or exploitation of children
  • trafficking of adults and children
  • gender-based violence.

Where does the right to protection from exploitation, violence and abuse come from?

Australia is a party to seven core international human rights treaties. The right to protection from exploitation, violence and abuse is contained in article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), article 19(1) of the Convention on the Rights of the Child (CRC) and article 16(1) of the Convention on the Rights of Persons with Disabilities (CRPD).

See also articles 11 and 32 to 36 of the CRC, articles 4 and 5(b) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and article 10(3) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The ICCPR and CERD require that incitement to discrimination, hostility or violence through the advocacy of national, racial or religious hatred be prohibited by law.

The CRC and the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography also require countries to take measures to prevent and suppress the abduction, sale of or traffic in children, to combat the illicit transfer and non-return of children overseas, to protect children from economic exploitation, to protect children from the illicit use of narcotic drugs and to protect children from all forms of sexual exploitation and sexual abuse.

The CRC and the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography and CEDAW require countries to take measures to prevent and suppress the traffic in and exploitation of prostitution of women.

The CRPD requires that positive measures be taken to prevent exploitation, violence and abuse of people with disabilities.

When do I need to consider the right to protection from exploitation, violence and abuse?

You will need to consider the right to protection from exploitation, violence and abuse when you are working on legislation, a policy or a program that:

  • puts a person who has a disadvantage or disability into the care of another, especially a policy which isolates a person from ordinary contact with the rest of the community
  • deals with violence or abuse, including domestic violence, abuse or neglect of children or violence in particular parts of the community
  • regulates the content of any speech, publication or broadcast, including on the internet, that advocates discrimination on the basis of nationality, race or religion that may incite violence
  • deals with international child abduction
  • deals with the employment of children that might constitute their economic exploitation or be harmful to the child's development
  • deals with the use of illegal drugs by children
  • protects children from sexual abuse or exploitation, and/or
  • deals with trafficking in men, women or children.

This list should not be regarded as exhaustive.

For information on other forms of ill-treatment, see the Guidance Sheet on the Prohibition of torture and cruel, inhuman or degrading treatment or punishment.

What is the scope of the right to protection from exploitation, violence and abuse?

Parties to the ICCPR, CERD, CEDAW, CRC and CRPD are obliged to take all appropriate legislative, administrative, social, educational and other measures to protect the persons whose rights are guaranteed by those treaties from all forms of exploitation, violence and abuse.

Advocacy of hatred that constitutes incitement to discrimination, hostility or violence

Article 20 of the ICCPR requires countries to outlaw vilification of persons on national, racial or religious grounds amounting to incitement to discrimination, hostility or violence. Australia has made a reservation in relation to article 20 to the effect that the Commonwealth and the states have legislated with respect to the subject matter of the article in matters of practical concern in the interests of public order, and that the right is reserved not to introduce any further legislation on these matters.

Article 4 of CERD requires countries to criminalise all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any racial or ethnic groups. On becoming party to CERD in 1975, Australia made a reservation in relation to Article 4(a) that it was not then in a position to criminalise all the matters covered in the article. The reservation has not been withdrawn.

During Australia's Universal Periodic Review in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties.

International child abduction

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty under which arrangements are made for the return of children who have been wrongfully removed from, or retained outside, their country of habitual residence. Australia is a party to that treaty.

Economic exploitation of children

Economic exploitation of children is often a product of child labour, which is understood to be work done by children that is physically and mentally harmful, and interferes with their education, and social or psychological development. Child labour is dealt with in a number of international instruments, most notably International Labour Organization Convention No 182, on the Worst Forms of Child Labour. The forms of labour covered by the Convention are:

  • 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 labour, including forced or compulsory recruitment of children for use in armed conflict
  • the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances
  • 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
  • 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.

The Convention requires countries to design and implement, in consultation with employers' and workers' organisations, programs to eliminate the forms of child labour described above. Australia is a party to this Convention.

The obligation to put positive measures in place to prevent abuse of people with disability

The CRPD requires countries to take appropriate action to prevent abuse of people with disability, especially women and children. This is on the basis that abuse of people with disability has been observed as a social phenomenon. Abuse may occur more often where there is vulnerability coupled with isolation, together with lack of independent oversight by an external body. There are also obligations to investigate and, if appropriate, to prosecute, if an allegation of abuse is made.

Use of illegal drugs by children

The CRC requires countries to take measures to protect children from the use of illicit drugs and to prevent the use of children in the illicit production and trafficking of such substances.

Sexual abuse or exploitation of children

The CRC requires countries to protect children from all forms of sexual exploitation and sexual abuse, and in particular to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices and the exploitative use of children in pornographic performances and materials. In this regard, the CRC is supplemented by the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography. Australia is a party to the Optional Protocol as well as the CRC.

Trafficking of adults and children

The United Nations Convention against Transnational Organized Crime (UNTOC) and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children deals with the recruitment or transfer of persons by the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, or benefits or payments to achieve consent for the purpose of exploitation. Australia is a party to the Convention and Protocol.

Gender-based violence

The UN Committee on the Elimination of All Forms of Discrimination against Women has stated that gender-based violence, including domestic violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men.

Declaration of the Rights of Indigenous Peoples

The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the right of Indigenous peoples to protection from exploitation, violence and abuse. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous people.

Can the right to protection from exploitation, violence and abuse be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the prohibition on advocacy of hatred that constitutes incitement to discrimination'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

The prohibition on advocacy of hatred that constitutes incitement to discrimination is not specifically excluded from article 4. However, since this conduct would almost inevitably involve discrimination, it is unlikely that the power to derogate would be available.

Limitation

Limitations on other aspects of the right to protection from exploitation, violence and abuse would be difficult to justify. The obligations in article 20 of the ICCPR and article 4 of the CERD only apply to Australia at present to the extent that they are not excluded by the reservations that Australia has made to these articles.

Which domestic laws relate to the right to protection from exploitation, violence and abuse?

Protection from violence and abuse

Numerous laws at the Commonwealth, state and territory levels criminalise offences against the person. They operate to protect the persons whose rights are guaranteed by human rights treaties from violence and abuse.

Advocacy of hatred that constitutes incitement to discrimination, hostility or violence

The Racial Discrimination Act 1975 prohibits vilification on the basis of race, colour, or national or ethnic origin, with exemptions to ensure that debate can occur freely in respect of matters of legitimate public interest. The Explanatory Memorandum to the vilification provisions states that the terms "race" and "ethnic origin" are intended to be given a broad meaning and may extend to covering particular religious groups. Racial vilification is also prohibited under state and territory laws and may constitute a criminal offence.

The Criminal Code Act 1995 makes it an offence to urge violence against targeted groups or members of targeted groups, intending that force or violence will occur as a result of the urging of violence. Targeted groups are those distinguished by religion, nationality, national or ethnic origin or political opinion. Strict penalties apply in relation to these offences.

International child abduction

Section 111B of the Family Law Act 1975, together with the Family Law (Child Protection Convention) Regulations 2003 give effect to the obligations under the Hague Convention on the Civil Aspects of International Child Abduction.

Economic exploitation of children

The Fair Work Act 2009 expressly preserves state and territory laws dealing with child labour.

Use of illegal drugs by children

In Australia, the National Drug Strategy provides a framework for an approach to drug related issues agreed to by all Australian governments. The Strategy is supported by the National Drug Strategy Aboriginal and Torres Strait Islander Peoples Complementary Action Plan which is a complementary plan focusing on the needs of Aboriginal and Torres Strait Islander peoples.

Sexual abuse or exploitation of children

Division 270 of the Criminal Code creates offences relating to causing a person to enter into or remain in sexual servitude, as defined in the Code. Sexual abuse or exploitation of children is also dealt with in state and territory laws.

The Classification (Publications, Films, and Computer Games) Act 1995 requires decision makers to apply the National Classification Code and the Guidelines. In accordance with the National Classification Code, films, computer games and publications will be refused classification if they describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 years of age (whether that person is engaged in sexual activity or not). The Guidelines do not allow depictions of persons under 18 years of age (minors) in films containing sexually explicit activity, nor do they permit persons 18 years of age or over to be portrayed as minors. They also do not allow promotion or provision of instruction in paedophile activity, descriptions or depictions of child sexual abuse, or any other exploitative or offensive descriptions or depictions of a person who is, or appears to be, a child under 18 years. A film, computer game or publication that is classified or classified 'refused classification' is subject to restrictions, imposed under state and territory enforcement legislation, on its publication, distribution, exhibition, advertising and viewing based on its classification.

Trafficking of adults and children

Division 271 of the Criminal Code criminalises trafficking in persons, fulfilling Australia's legislative obligations under the UNTOC. This includes specific trafficking in children offences, which criminalise organising or facilitating the transport of a child into, out of, or within Australia, where the perpetrator intends or is reckless as to whether the child will be used to provide sexual services or will be exploited. (The elements of this offence are different from the elements of trafficking in adults as it does not require force or deception.) Trafficking in children is punishable by a maximum penalty of 25 years imprisonment.

Under the Migration Act 1958, it is an offence to employ a person, or refer a person for work, in contravention of their visa conditions and an aggravated offence if the person is exploited through forced labour, sexual servitude or slavery (as defined in section 245AH).

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What other rights and freedoms relate to the right to protection from exploitation, violence and abuse?

The right to protection against exploitation, violence and abuse in the ICCPR, CERD, CRC, CEDAW and CRPD may also include:

The prohibition of advocacy of hatred that constitutes incitement to discrimination, hostility or violence may be a limitation on the right to freedom of expression under article 19 (for further detail, see the guidance sheet on the Right to freedom of opinion and expression).

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 20(2)

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Convention on the Rights of the Child

Article 19(1)

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Convention on the Rights of Persons with Disabilities

Article 16(1)

States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.

See also: CERD articles 4 and 5(b); CEDAW article 6; CRC articles 11, 32 to 36; ICESCR article 10(3).

Where can I read more about the right to protection from exploitation, violence and abuse?