Children’s Amendment Bill

1. Children’s Amendment Bill Portfolio Committee on Social Development 5 September 2007

2. Structure of Presentation • Background • Proposed amendments • State of readiness

3. Background (1) • DoL - Lead department for the implementation of the CLPA • Inter departmental approach to deal with the issues of Child Labour • National effort by government, organised business, organised labour and civil society to address child labour

4. Background (2) Legislative mandate • BCEA - deals with Child labour in 3 different ways - all work by children that affects them negatively andemployment of children until the end of year in which they turn 15 - work by children aged 15 – 17 years provided such work: • is not prohibited by Minister of Labour • does not risk education, health, wellbeing • is not inappropriate for age - Allows for CIPA determination • International Obligations - ILO Convention on Worst Forms of Child Labour - Minimum Age Convention C138 - Worst Forms of Child Labour (WFCL) regulations - ACOHS • Child should not perform work that may harm the physical, mental or social well-being of the child

5. Amendments proposed by DoL • Definitional - abuse Proposal To substitute “(d) labour practices that exploits a child” with “child labour” Motivation Using a consistent term rather then using “labour practices….” but rather harmonising the definition of child labour with other legislation Not in the draft

6. Amendments proposed by DoL • Definitional - child labour Proposal To redefine as: “work by a child which • That child is prohibited from performing in terms of the BCEA or any other law • Is a worst form of child labour and any other work that is exploitative, hazardous or otherwise inappropriate for a child of that age or places the child’s well-being….” Motivation Allows for child labour to be defined with greater precision Clarifies that it includes worst forms of child labour Brings in the qualitative test in terms of the Constitution S28(1)(f) Not in the draft

7. Amendments proposed by DoL • Definitional - exploitation Proposal To delete in (e) the words “in terms of section 141” Motivation To extend the protection mechanism of the Act to children who are required to perform or who are at risk to perform any form of prohibited child labour and any forced labour Not in the draft

8. Amendments proposed by DoL • Definitional - new definition for “worst forms of child labour” Proposal “worst forms of child labour” in relation to a child is • Slavery or practices similar to slavery with respect to a child including but not limited to (i) The sale or traffickong of a child • Debt bondage and serfdom • Forced or compulsory labour Including but not limited to forced or compulsory recruitment of a child for use in armed conflict ……. Motivation Using a consistent term rather then using “labour practices….” but rather harmonising the definition of child labour with other legislation Not in the draft

9. Amendments proposed by DoL • Section 150 Child in need of care and protection Proposal To amend (e) to read “has been exploited or subjected to child labour or lives in circumstances that expose the child to exploitation or child labour” Motivation The statutory intervention mechanisms can be applied to children that a re performing any form of prohibited child labour and allow for early intervention and access to appropriate services Not in the draft

10. Amendments proposed by DoL • Section • 150 Child in need of care and protection • Proposal • To include a new subsection (3) • “ If after an investigation, a social worker finds that a child is or is likely to be a victim of child labour, the social worker must advise a labour inspector.” • Motivation • The department will then be in a position to investigate and I necessary take further action in terms of the applicable laws. Not in the draft

11. Amendments proposed by DoL Section • 105 Reporting of a child in need of care and protection • Proposal • To include in subsection (1) reference to a child “subjected to a worst form of child labour” • Motivation • To extend the statutory reporting duty placed on a range of professionals and other responsible persons a suspected worst form of child labour. This will improve the provision of early intervention and protective services Not in the draft

12. Amendments proposed by DoL • Section • 136 - Child headed households • Proposal • To include a new subsection (5)(c) “ must take appropriate steps to ensure that a child in a child headed household is protected from performing child labour and that the children in the household have an alternative source of income” • Motivation • To protect those children who are heading households or are living of in child headed households from being drawn that are he department will then be in a position to investigate and I necessary take further action in terms of the applicable laws. Not in the draft

13. Amendments proposed by DoL • Section • 141 Certain Action with regards to Children Prohibited • Proposal • To reword section 141 141 Worst forms of child labour and forms of abuse of children • It is an offence for any person to – (a) require or permit a child to perform a worst form of child labour; (b) subject a child to sexual abuse. • The provisions in this section shall not be interpreted as permitting any work by a child that is prohibited in terms of the Basic Conditions of Employment Act or any other law. • If a person is convicted of an offence in terms of sub section 1(a) the court on convicting that person and determining the sentence must take into account that - (a) that South Africa has ratified the International Labour Organisation’s worst forms of Child Labour Convention, (b) that the offence constitutes a worst form of child labour in terms of that Convention Current text is not contentious however the DoL proposal not in the Bill

14. Amendments proposed by DoL Section 305 A person is guilty of an offence if that person Proposal To reword sub section 1(a) to read: commits an act in contravention of the prohibition set out in section 12(2); (3); (4); (6); (7); or (8) or section 141 (1) Motivation • This amendment is consequential on the proposed new section 141 and is necessary to ensure that worst forms of child labour and sexual abuse are regarded as criminal offences.

15. State of readiness

16. Readiness Relevant sections - Sections 105 and 141 of the Bill • 105 Reporting obligations • 141 Certain Actions with regards to children prohibited Broad readiness Legislative • International obligations - Ratified convention on the worst forms of Child labour • Provisions on child labour in the BCEA is quite clear – need for consistency across legislation • Developed Regulations on the Worst Forms of Child Labour – finalised by ACOHS - will be published for public comment

17. Readiness Organisational • Inspectorate of the DoL in place and trained on the provisions of the BCEA Institutional • Existing Policies - Broad enforcement Strategy in terms of the BCEA - Child Labour specific Enforcement Strategy

18. Proposed actions Legislation • Worst Forms of Child Labour – ACOHS – Publication of regulations finalised Training Reporting responsibilities in terms of s105 Resuscitating provincial Clig structures or utilizing existing structures such as the Social Justice Committees in the provinces.