Legislative Compliance Review of Child Labour Laws in Fiji

International Programme on the Elimination of Child Labour (IPEC)

Tackling Child Labour through Education -Fiji Programme

ILO Country Office for South Pacific Island Countries

Legislative Compliance Review

of Child Labour Laws in Fiji

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International Labour Organization

Office for Pacific Island Countries

Legislative Compliance Review of Child Labour

Laws

in Fiji

Siwatibau & Sloan

Barristers & Solicitors

September 2009

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TABLE OF CONTENTS

1. Executive Summary 6

2. Introduction and Brief Background 10

2.1. Project description 10

2.2. Objectives of the Review 10

2.3. Authors 11

2.4. Project stakeholders 11

2.5. Methodology 12

2.6. Abbreviations and Definitions 13

2.7. Developments in Fiji’s Legal System 14

2.8. Process for Amending Legislation 14

2.9. Conventions Ratified by Fiji 15

3. ILO Convention No. 138 and No. 182 17

3.1. ILO Convention No. 138 and No. 1852 17

3.2. What is Child Labour? 17

3.3. ILO Convention No. 138 18

3.3.1. Overview of ILO Convention No. 138 18

3.3.2. Policy 18

3.3.3. Minimum Age for Admission to Work 19

3.3.4. Hazardous Work 19

3.3.5. Light Work 20

3.3.6. Exclusions 21

3.3.7. Artistic Performances 22

3.4. Overview of ILO Convention No. 182 22

3.5. Implementation and Enforcement 23

4. Review of the Legislative and Policy Framework 24

4.1. Policy 24

4.1.1. Overview 24

4.1.2. Approach to Policy Formulation 25

4.1.3. Committee for Formulating Policy 25

4.1.4. Technical Assistance 27

4.2. Legislative Framework 27

4.2.1. Employment 27

4.2.1.1. Minimum age for employment in ERP 27

4.2.1.2. Minimum age for employment in Industry 28

Specific Legislation

4.2.1.3. Hazardous work 29

4.2.1.4. Light Work 35

4.2.1.5. Exclusions 36

4.2.1.6. Artistic Performances 38

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4.2.2. Education 38

4.2.2.1. Minimum Age for Compulsory Education 39

4.2.2.2. Barriers to Education 40

4.2.2.3. Overall Approach to Review of Education 41

Legislation and Policy

4.2.2.4. Technical Assistance 41

4.2.3. Harmonisation of definition of “child” in legislation 42

4.2.4. Worst Forms of Child Labour 44

4.2.4.1. Slavery 44

4.2.4.2. Sale and Trafficking of Children 45

4.2.4.3. Forced/Compulsory Labour 50

4.2.4.4. Forced Recruitment 50

4.2.4.5. Prostitution 51

4.2.4.6. Pornography 57

4.2.4.7. Illicit and Drug-related Offences 58

4.2.5. Practical Difficulties 61

4.2.5.1. Ministry of Labour 61

4.2.5.2. Ministry of Education 61

4.2.5.3. Department of Social Welfare 62

4.2.5.4. Police 64

4.2.6. Specific Issues 66

4.2.6.1. Amendments to Juveniles Act 66

4.2.6.2. Child Sensitive Court Procedures 67

4.2.6.3. Child Labour Unit 68

4.2.6.4. Centralised Child Labour Database 70

4.2.6.5. Role of Worker’s and Employer’s Organisations 70

4.2.7. Enforcement 71

4.2.7.1. Enforcement of Labour Laws 71

4.2.7.2. Enforcement of Compulsory Education 73

4.2.7.3. Unconditional Worst Forms of Child Labour 75

5. Summary of Recommendations 78

5.1. Policy 78

5.2. Hazardous Work 78

5.3. Light Work 79

5.4. Artistic Performances 79

5.5. Education 79

5.6. Minimum age for employment in industry specific legislation 80

5.7. Harmonisation of the definition of “child” in legislation 80

5.8. Worst Forms of Child Labour 81

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5.8.1. Amendments to the Penal Code 81

5.8.2. Amendments to the Juveniles Act 82

5.8.3. Hotel Licensing Process 82

5.8.4. Amendments to the Adoption of Infants Act 82

5.8.5. Amendments to the Marriage Act 83

5.8.6. Forced Recruitment 83

5.9. Increased Co-operation 83

5.10. Centralised Child Labour Database 84

6. Annexures

Annexure 1: List of Recommended Amendments to Legislation 85

Schedule A: Recommended Amendments to the Labour 85

Legislation

Schedule B: Recommended Amendments to the Education 86

Legislation

Schedule C: Recommended Amendments to the Penal Code 87

Schedule D: Recommended Amendments to the Juveniles 91

Act

Annexure 2: Original Terms of Reference 93

Annexure 3: List of Legislation and Policies Reviewed 101

Schedule A: List of Legislation Reviewed 101

Schedule B: List of Policies Reviewed 103

Annexure 4: List of People interviewed 104

Annexure 5: Reference List 105

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1. EXECUTIVE SUMMARY

This report examines Fiji’s compliance with the International Labour

Organization’s (“ILO”) Minimum Age Convention, 1973 (No.138) (“ILO

Convention No. 138”) and ILO Worst Forms of Child Labour Convention, 1999

(No. 182) (“ILO Convention No. 182.”)

Fiji ratified ILO Convention No. 182 in 2002 and ILO Convention No. 138 in

2003.

The Employment Relations Promulgation 2007 (“ERP”) updated Fiji’s labour

laws and brought them more in line with ILO Convention No.s 138 and 182

(“Conventions.”) However, there are still major gaps in the application of the

Conventions in Fiji’s laws.

Policy

In line with ILO Convention No. 138, Fiji is required to formulate a

comprehensive national policy on child labour. There is currently a child labour

subcommittee of the National Coordinating Committee of Children (“NCCC”)

which could pilot the formulation of a child labour policy in Fiji. However, wide

consultation with all key Ministries, Departments and other government officials

would be necessary.

Labour Legislation

In order to be fully compliant with ILO Convention No. 138 and No. 182, the

Ministry of Labour, Industrial Relations and Employment (“Ministry of

Labour”), in consultation with stakeholders, should: -

 determine a list of hazardous work which is prohibited for children under

the age of 18;

 determine a list of light work which is suitable for children from the age of

13-15 years;

 consider the possibility of further regulations which guarantee fair

remuneration and entitlements for children and cover working conditions

and working hours.

Education Legislation

Amendments to the Education Act (Cap. 262) and subsidiary legislation are

recommended in order to harmonize the minimum age for completion of

compulsory education with the minimum working age. The statutory age for

completion of compulsory education in Fiji currently ranges from 12-15 years.

The Education Legislation needs to be amended to increase the minimum age for

completion of schooling so as to coincide with the minimum working age of 15

years.

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Consideration should be given to amendments to the Education Legislation

which:

 grant a right to free primary education;

 remove provisions relating to school fees and to the prosecution of parents

for non payment of fees;

 hold parents responsible for not ensuring their child attends school;

 ensure there are sufficient schools in number, character and equipment;

 provide financial assistance to poor families;

 make the duty to provide education enforceable by the courts;

 outline mechanisms for monitoring attendance and following up on cases of

absenteeism.

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A comprehensive review of the Ministry of Education, National Heritage, Culture,

and Arts’ (“Ministry of Education”) legislation, policies, structure and budget

is recommended to address key issues including the funding of basic education

and the enforcement of compulsory education.

Worst Forms of Child Labour

There are gaps in the application of ILO Convention No. 182 in Fiji. There are no

time bound measures or programmes in place to eliminate the worst forms

of child labour and to prevent or remove children from the worst forms of child

labour.

The Penal Code (Cap. 17) and the Juveniles Act (Cap. 56), which govern criminal

offences by and against children, are both in urgent need of review and

amendment.

Penal Code

Recommended amendments to the Penal Code include: -

 a revision of age thresholds;

 the introduction of new offences including offences: -

o of indecent dealings with children under the age of 18;

o relating to the commercial sexual exploitation of children (“CSEC”)

under the age of 18;

o which target the user or customer, not the exploited child;

 the use of gender neutral language to protect boys;

 a revision and updating of terminology;

 the consideration of criminal compensation for victims;

 the removal of references to corporal punishment;

 a revision of penalties.

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ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 29

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The Review Team has been advised that a revised Penal Code (to be known as the

Crimes Act), incorporates many of the recommended amendments to the Penal

Code contained in this Report. The draft Crimes Bill was not made available to

the Review Team.

Juveniles Act

Recommended amendments to the Juveniles Act include: -

 the incorporation of child sensitive practices in the Juveniles Court,

particularly for children giving evidence in cases involving the sexual and

physical abuse of children and CSEC;

 an amendment to the definition of a juvenile “in need of care, protection or

control”

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to include situations where a juvenile is ill-treated, abused or

seriously deprived or where a juvenile has committed offences so as to give

serious concern for the well-being of the juvenile;

 new provisions which include reference to: -

o family group conferences;

o counseling;

o drug related offences;

o the principle of the best interests of the child;

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o emergency procedures for children including orders for emergency

protection, orders for maintenance, support and education.

 The repeal of Section 57(7) of the Juveniles Act which states that a parent,

teacher or other person having lawful control or charge of a juvenile may

administer reasonable punishment to him.

Enforcement

One of the biggest gaps in the application of ILO Convention No.s 138 and 182 is

the lack of enforcement in Fiji. Ongoing monitoring, inspections, investigations

and prosecutions for child labour offences are required. The monitoring and

enforcement of compulsory education, which is currently not carried out by the

Fiji government, is an important factor in the prevention of child labour.

Numerous issues relating to the handling of CSEC cases and the removal of

children from the worst forms of child labour need to be addressed. Such issues

include the provision of adequate counselling services and support services in

court for child victims.

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Section 40 of the Juveniles Act defines a juvenile “in need of care, protection and control.”

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The Fiji Law Reform Commission’s Report for Children: A Review of Laws Affecting Children, May 2000,

page 49 recommends that “the principle of the best interests of the child be incorporated into Section 19.

The said report recommends that section 19 is amended in the following way: “19. Every court in dealing

with a juvenile who is brought before it shall have regard to his welfare and best interests and shall, if it

thinks fit, take steps for removing him from undesirable surroundings and for securing that proper

provision be made for his maintenance, education and training.”

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Resources

In order to take real steps to eliminate child labour, there needs to be a

commitment from government to allocate resources. As noted in ILO’s “Time

Bound Programme Manual for Action Planning, 2003,”

“However, policies and laws on paper are likely to fail to secure effective

action unless governments accompany them with firm commitment,

identifying relevant implementing agencies and backing them with adequate

budgets and personnel. It would be helpful for governments to articulate

and adopt national policies on child labour and specify their place in overall

development policy. This might involve an agenda for action spelling out

national plans with indicators, goals and budgetary allocations and

identifying priorities.”

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ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 10

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2. INTRODUCTION AND BRIEF BACKGROUND

2.1. Project Description

2.1.1. TACKLE (“Tackling Child Labour through Education”) is a project

which works with ILO’s tri-partite partners,

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social partners and civil

society groups to formulate, implement and enforce policies and

programmes to fight child labour. TACKLE is a global programme

aimed at tackling child labour through education in 11 countries across

Africa, the Caribbean and the Pacific, including Fiji and Papua New

Guinea (“PNG”). A Partnership Protocol Agreement was signed by the

European Union, ILO, the Ministry of Education and the Ministry of

Labour in Fiji and PNG.

2.1.2. The Legislative Compliance Review of child labour laws in Fiji was

commissioned by ILO and carried out as part of the TACKLE project.

2.1.3. A Project Advisory Committee for Child Labour/ TACKLE (“PAC”) has

been set up, which consists of representatives from ILO, the Ministry of

Labour, Ministry of Education, Department of Social Welfare, Fiji

Employers Federation and Fiji Trades Union Congress. The PAC works

with the NCCC via a Child Labour subcommittee of the NCCC.

2.1.4. As part of the TACKLE Project, research is being carried out

concurrently on the following research sectors: -

 School survey conducted by the Fiji Trade Unions Congress and

the Fiji Teachers’ Union;

 Survey of Informal settlements and squatter communities

conducted by the University of the South Pacific;

 Commercial Sexual Exploitation of Children (CSEC) Survey

conducted by Save the Children Fiji;

 Rural & Agricultural Survey conducted by Live & Learn

Environmental Education;

 Street Children Survey conducted by the Foundation of the

Peoples of the South Pacific International.

The researchers are stakeholders in the TACKLE project.

2.2. Objectives of the Review

2.2.1. In accordance with the Terms of Reference (attached at Annexure 2),

the key objectives of the Legislative Compliance Review were to: -

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ILO’s tri-partite partners are the Government and employers and workers’ organizations

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 Review the existing legislation, policies and programmes relevant

to child labour in Fiji;

 Assess whether ILO Convention No. 138 and No. 182 have been

applied in Fiji law;

 Focus on the harmonization of Fiji’s education and labour

legislation;

 Identify the gaps and inconsistencies between Fiji’s legal

framework and ILO Convention No. 138 and No. 182;

 Make recommendations to strengthen the legislative and policy

framework in relation to child labour and education;

 Identify areas in which ILO can assist in terms of strengthening

the legal framework in Fiji.

2.3. Authors

2.3.1. The authors involved in the Review (“Review Team”) were: -

 Lorraine Reiher (LLB/BA): responsible for legislative compliance

review and drafting the report;

 Atu Siwatibau (LLB/B.Com): assisted with overall review of the

report;

 Artika Prasad(LLB/B.Com): involved with legislative/policy

review (including identifying the relevant legislation and sections

of such legislation) and legislative compliance review;

 Neomai Maravuakula (LLB): involved with legislative/policy

review (including identifying the relevant legislation and sections

of such legislation) and legislative compliance review;

 Aminiasi Vulaono (LLB): involved with legislative/policy review

(including identifying the relevant legislation and sections of such

legislation);

 Sarote Hiagi: librarian and principal researcher of

legislation/policy.

2.4. Project Stakeholders

2.4.1. The stakeholders in relation to this Project are: -

2.4.1.1. ILO;

2.4.1.2. The government agencies whose responsibility it is to

implement and enforce legislation, policies and programmes

to eliminate child labour, including the: -

 Ministry of Labour;

 Ministry of Education;

 Department of Social Welfare;

 Fiji Police Force;

 Department of Tourism.

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2.4.1.3. Members of the Project Advisory Committee on Child

Labour in Fiji and stakeholders in relation to child labour

and education issues including the Fiji Trade Unions

Congress, Fiji Teachers’ Union, the Fiji Employers’

Federation, civil society groups including non governmental

organizations (“NGO’s.”)

2.5. Methodology

2.5.1. The Review Team referred to: -

2.5.1.1. the guiding principles in ILO Conventions No. 138 and No.

182 and Recommendation Numbers 146 and 190;

2.5.1.2. the Desk Review Findings of the ILO TACKLE team in

Geneva dated 23 September 2008 in relation to Fiji’s

compliance with ILO Conventions 138 and 182, in particular

the ILO Committee of Experts’ Direct Request (2006) to Fiji

on the application of ILO Convention No.s 138 and 182;

2.5.1.3. the informal Comparative Analysis of law and practice in Fiji

in light of ILO Convention No.s 138 and 182 made by IPEC

Geneva, dated 27 July 2005;

2.5.1.4. ILO publications relating to child labour. ILO’s Publications

“Modern Policy and Legislative Responses to Child Labour,”

2007 and “Time Bound Programme Manual for Action

Planning,” 2003 were particularly helpful in providing

examples of legislative provisions governing child labour in

other jurisdictions and existing policies.

2.5.2. The Review Team reviewed the list of the legislation and policies

reviewed attached at Annexure 3. The key legislation outlined in this

report includes: -

 Adoption of Infants Act (Cap 58);

 The Constitution of the Republic of Fiji Act 1997

(“Constitution”);

 Dangerous Drugs Act (Cap 114);

 Education Act, (Cap 262), and subsidiary legislation including

Education Regulations and Compulsory Education Orders;

 Employment Relations Promulgation 2007 and Regulations;

 Factories Act (Cap 99);

 Health & Safety at Work Act 1996 and Regulations;

 Illicit Drugs Control Act 2004;

 Juveniles Act (Cap 56);

 Marine Act 1986 and Regulations;

 Marriage Act (Cap. 50);

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 Mining Act (Cap. 146);

 Penal Code (Cap. 17);

 Quarries Regulations.

2.5.3. In table form, the Review Team identified the legislative provisions

relevant to each Article in ILO Convention No. 138 and No. 182. The

Review Team identified whether each Article had been applied in Fiji

and the gaps in the application of such Articles in Fiji’s legislation. The

table included comments and recommendations and formed the basis

for questions to the Ministries, Departments and stakeholders.

2.5.4. Interviews were carried out with stakeholders and officials from the

Fiji Government’s Ministries and Departments including

representatives from the: -

 Ministry of Labour;

 Ministry of Education;

 Department of Social Welfare;

 Department of Tourism;

 Fiji Police Force (Juvenile Bureau and the Child Abuse and Sexual

Offences Unit);

 Department of Immigration;

 NGO’s (Save the Children Fiji and Fiji Women’s Crisis Centre);

 Fiji Employer’s Federation;

 Fiji Trades Union Congress and Fiji Teachers Union.

2.5.5. The report was drafted with a focus on key recommended changes to

the law.

2.6. Abbreviations and Definitions

CEACR: ILO Committee of Experts

CRC: United Nations Convention on the Rights of the Child 1989

CSEC: Commercial Sexual Exploitation of Children

Education means the Education Act and all subsidiary

Legislation: legislation including the Education Regulations,

Compulsory Education Orders and the Rotuma

(Primary School) Regulations

ERP: Employment Relations Promulgation 2007

ERAB: Employment Relations Advisory Board

FNPF: Fiji National Provident Fund

FLRC Fiji Law Reform Commission

HSWA: Heath and Safety at Work Act 1996

Labour includes the ERP and all subsidiary legislation

Legislation: including regulations

NCCC: National Coordinating Committee on Children

NGO’s: Non Governmental Organisations

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PAC: means the Project Advisory Committee on Child

Labour in Fiji

TPAF Act: Training and Productivity Authority of Fiji Act, Cap

93

TPAF: Training and Productivity Authority of Fiji

TPAF Order: Fiji National Training (1976) (“FNTC”) Order

2.7. Developments in Fiji’s Legal System

2.7.1. The Constitution of Fiji was abrogated by the President of Fiji on 10

April 2009. Although this report makes reference to the provisions of

the Constitution, such provisions are currently not in force as a result

of the abrogation.

2.7.2. All laws of Fiji as at the date of abrogation of the Constitution have

been preserved and still have the force of law in the country. All new

legislation in Fiji is, as at the date of this report, currently being passed

as Decrees by the President of the Republic of the Fiji Islands.

2.7.3. Prior to the abrogation of the Constitution, the Interim Government of

Fiji compiled, after extensive consultation with members of the public

and key stakeholders, The People’s Charter for Change, Peace and

Progress (“Charter”). The Charter was initially intended to

complement the Constitution but now, after the abrogation of the

Constitution, will most likely be the guiding document for the current

Interim Government. The Charter contains guidelines for any

Government policies in Fiji by its pillars.

2.8. Process for Amending Legislation

2.8.1. Formerly, the Fiji Law Reform Commission (“FLRC”) was responsible

for reviewing laws, organizing the consultation on proposed changes to

laws and initiating the process for amending laws. The FLRC had

programmes and timelines for anticipated law reviews so that

interested parties were aware that submissions could be made. The

Review Team understands the FLRC is not currently operational and

its lawyers have been incorporated as part of the Attorney-General’s

Chambers and the Solicitor-General’s Office. The Review Team has

been advised that currently individual Ministers are responsible for

making submissions to Cabinet on proposed amendments to legislation

which affects each Ministry.

2.8.2. There do not appear to be any set timelines for proposed reviews of

legislation, except for the Education Legislation. Proposed

amendments to legislation are made to Cabinet on a case by case basis

by individual Ministers. In order to amend legislation in line with the

recommendations in this report, it is critical that ILO works closely

with the relevant government Ministries and Departments which will

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be responsible for pushing forward any legislative changes. Further

consultation by Ministries and Departments with the Attorney-

General’s Chambers is recommended to confirm the current process

for amending legislation and passing subsidiary legislation like

regulations.

2.8.3. The Review Team is unable to provide clear timelines or schedules for

introducing amendments to the law, because the amendments are

dependant on individual Ministry initiatives.

2.8.4. Any submissions to Cabinet on proposed legislative amendments are

confidential and were not made available to the Review Team.

2.9. Conventions Ratified by Fiji

Section 43(2) of the Constitution provides that the courts must have

regard to public international law which is applicable to the protection

of the rights set out in Chapter 4 of the Constitution.

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The ILO Conventions which are most applicable to child labour and

which have been ratified by Fiji are: -

2.9.1.1. ILO Unemployment Indemnity (Shipwreck) Convention,

1920 (No. 8)

2.9.1.2. ILO Rights of Association (Agriculture) Convention, 1921

(No. 11)

2.9.1.3. ILO Workmen’s Compensation (Agriculture) Convention,

1921 (No. 12)

2.9.1.4. ILO Forced Labour Convention, 1930 (No. 29)

2.9.1.5. ILO Underground Work (Women) Convention, 1935 (No. 45)

2.9.1.6. ILO Labour Inspection Convention, 1947 (No. 81)

2.9.1.7. ILO, Freedom of Association and Protection of the Right to

Organize Convention, 1949 (No. 87)

2.9.1.8. ILO Right to Organise and Collective Bargaining Convention,

1949 (No. 98)

2.9.1.9. ILO Equal Remuneration Convention, 1951 (No. 100)

2.9.1.10. ILO Abolition of Forced Labour Convention, 1957 (105)

2.9.1.11. ILO, Seafarers’ Identity Documents Convention, 1957 (No.

108)

2.9.1.12. ILO Discrimination (Employment and Occupation)

Convention, 1958 (111)

2.9.1.13. ILO Minimum Age Convention, 1973 (No. 138)

2.9.1.14. ILO, Occupational Safety and Health Convention, 1981 (No.

155)

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Chapter 4 of Fiji’s Constitution lays down the Bill of Rights, which includes Section 33 which refers to the

right to fair labour practices, including humane treatment and proper working conditions.

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2.9.1.15. ILO Worst Forms of Child Labour Convention, 1999 (No.

182)

2.9.1.16. ILO Safety and Health in Agriculture Convention, 2001

(No.184).

2.9.2. Other relevant international treaties which relate to child labour and

which, as at the date of this report, have been ratified or adopted by Fiji

include:

2.9.2.1. United Nations Convention on the Rights of the Child 1989;

2.9.2.2. Convention on the Civil Aspects of International Child

Abduction 1980

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;

2.9.2.3. International Convention for the Suppression of Trafficking

in Women & Children 1921;

2.9.2.4. United Nations Human Rights Conventions including the

International Covenant on Economic, Social and Cultural

Rights, 1966 (“ICESCR”), the International Covenant on

Civil and Political Rights 1966 (“ICCPR”) and Optional

Protocols. These Conventions protect, inter alia, the right to

decent work,

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family life,

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and free, compulsory primary

education.

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The engagement of a child in child labour

infringes these basic human rights.

Fiji has signed but not ratified the: -

 Optional Protocol to the Convention on the Rights of the

Child on the Sale of Children, Child Prostitution and Child

Pornography 2000; and the

 Optional Protocol to the Convention on the Rights of the

Child on the Involvement of Children in Armed Conflicts

2000.

When in force, section 43(2) of the Constitution provides that the

courts are bound to apply international human rights law in the

interpretation of rights. The applicability of international treaties via

Fiji’s Constitution is currently problematic because of the abrogation of

the Constitution.

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Section 200 of the Family Law Act provides that regulations (which have been passed as the Family Law

Regulations 2005 (LN.49)) may make such provision as is necessary to enable the performance of the

obligations of the State, or to obtain for the State any advantage or benefit under the Convention on the

Civil Aspects of International Child Abduction 1980.

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Article 6 of ICESCR

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Article 10 of the ICESCR provides that “parties must take “special measures” to protect children from

economic or social exploitation, including setting a minimum age of employment and barring children

from dangerous or harmful occupations.”

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Article 13 if ICESCR and Article 26 of the Universal Declaration of Human Rights

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3. ILO CONVENTIONS 138 AND 182

3.1. ILO Convention No. 138 and No. 182

3.1.1. The Review Team examined ILO Convention No. 138 and No. 182

(“Conventions”), their related recommendations and assessed

whether they had been applied in Fiji’s legal framework.

3.1.2. ILO Convention No. 138 and No. 182 seek to protect children against

work which may affect their fullest physical and mental development,

and, in particular, their health, safety and morals.

3.1.3. ILO Convention No. 138 states that members must specify a minimum

age for admission to work, which shall be not less than 15 (or the age of

completion of compulsory schooling, which varies in Fiji.)

3.1.4. ILO Convention No. 182 addresses the need to secure the prohibition

of the worst forms of labour. The worst forms of child labour include

crimes such as slavery and bonded labour, child prostitution,

pornography, illicit activities including the sale and trafficking of

drugs. Another distinct category of the worst forms of child labour is

hazardous work. Immediate action needs to be taken to prevent and

liberate all children under 18 who are engaged in the worst forms of

child labour.

3.2. What is Child Labour?

3.2.1. ILO’s Publication on “Child Labour, a Textbook for University

Students” states: -

“Not all work done by children should be classified as child labour that

is to be targeted for elimination. Children’s or adolescents’

participation in work that does not affect their health and personal

development or interfere with their schooling, is generally regarded as

being something positive. This includes activities such as helping their

parents around the home, assisting in a family business or earning

pocket money outside school hours and during school holidays. These

kinds of activities contribute to children’s development and to the

welfare of their families; they provide them with skills and experience,

and help to prepare them to be productive members of society during

their adult life.

The term “child labour” is often defined as work that deprives children

of their childhood, their potential and their dignity, and that is harmful

to physical and mental development. It refers to work that: -

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 is mentally, physically, socially or morally dangerous and harmful

to children; and

 interferes with their schooling:

o by depriving them of the opportunity to attend school;

o by obliging them to leave school prematurely; or

o by requiring them to attempt to combine school attendance

with excessively long and heavy work….

Whether or not particular forms of “work” can be called “child labour”

depends on the child’s age, the type and hours of work performed, the

conditions under which it is performed and the objectives pursued by

individual countries. The answer varies from country to country, as

well as among sectors within countries.”

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3.3. ILO Convention No. 138

3.3.1. Overview of ILO Convention No. 138

The key requirements of ILO Convention 138, supplemented by

Recommendation No. 146, are that Member States should: -

 pursue a national policy to ensure the effective abolition of child

labour; and

 progressively raise the minimum age for employment or work to a

level consistent with the fullest physical and mental development

of young persons.

12

3.3.2. Policy

Article 1 of ILO Convention No. 138 provides that each Member State

undertakes to pursue a national policy designed to ensure the effective

abolition of child labour.

Recommendation No. 146 provides that high priority should be given

to planning and meeting the needs of children and youth in developing

national policies and programmes which cover: -

 a national commitment to full employment;

 economic and social measures to alleviate poverty;

 the development of social security and family welfare measures;

 the development of educational and vocational orientation;

 the development of appropriate facilities for the protection and

welfare of children and young persons.

13

11

ILO Publication “Child Labour (A textbook for university students)” 2004, page 16

12

Article 1, ILO Convention No. 138

13

Paragraph 1, Minimum Age Recommendation, 1973 (No.146)

19

3.3.3. Minimum Age for Admission to Work

The core obligation imposed by ILO Convention No. 138 is found in

Article 2 which states that each Member State must specify a

minimum age for admission to work, which should not be lower than

the age for the completion of compulsory education and in not any

case, less than 15 years.

Recommendation No. 146 provides that Members should aim to

progressively raise the minimum age for admission to employment to

16 years.

14

The Convention provides that a Member State with an insufficiently

developed economy may, following consultation with social partners,

drop the minimum age for employment to 14 years.

3.3.4. Hazardous Work

Hazardous work is defined as “work which, by its nature or the

circumstances in which it is carried out, is likely to jeopardize or harm

the health, safety or morals of children.”

15

Article 3(1) of ILO Convention No. 138 prescribes a minimum age of

18 years for hazardous work. Article 3(2) of ILO Convention No. 138

requires that Member States must determine a list of the types of

employment or work which constitute hazardous work.

Article 3(d) of ILO Convention No. 182, which also deals with

hazardous work, shall be dealt with concurrently with Article 3(1) of

ILO Convention No. 138 in this Report. Hazardous work which is likely

to harm the health, safety or morals of children is prescribed as a worst

form of child labour in ILO Convention No. 182.

Recommendation No. 190

16

states that in determining hazardous work,

consideration should be given to: -

 work which exposes children to physical, psychological or sexual

abuse;

 work underground, under water, at dangerous heights or in

confined spaces;

 work with dangerous machinery, equipment and tools, or which

involves the manual handling or transport of heavy loads;

 work in an unhealthy environment which may, for example,

expose children to hazardous substances, agents or processes, or

14

Paragraph 7, Minimum Age Recommendation, 1973 (No.146)

15

Article 3(d), ILO Convention No. 182

16

Paragraph 3, Recommendation No. 190

20

to temperatures, noise levels, or vibrations damaging to their

health;

 work under particularly difficult conditions such as work for long

hours or during the night or work where the child is unreasonably

confined to the premises of the employer.

Article 3(3) of ILO Convention No. 138 and Recommendation No.

190 provide that the national authority may exceptionally authorize

some activities among the listed hazardous work for young people from

the age of 16 years, provided that the young person’s health, safety and

morals are fully protected and that the young person has received

adequate training.

This exception is not applicable to the worst forms of child labour

defined under Article 3(a) to (c) of Convention 182, which includes

slavery, prostitution, pornography and illicit activities.

3.3.5. Light Work

Article 7 of ILO Convention No. 138 provides that light work may be

permitted for persons 13 to 15 years of age where the work is:

(a) not likely to be harmful to their health or development;

(b) not such as to prejudice their attendance at school or in a

vocational, orientation or training programme.

The types of work which constitute “light work” should be determined

and the competent authority must prescribe the number of working

hours and conditions in which “light work” may be undertaken.

Recommendation No. 146 states that there should be measures in place

to safeguard and supervise the conditions of employment for children

and young people who have reached the minimum working age or who

undertake “light work” including: -

 the provision of fair remuneration;

 the strict limitation of the hours spent at work in a day and in a

week, and the prohibition of overtime;

 the granting of a minimum of 12 consecutive hours’ night rest;

 the granting of an annual holiday with pay of at least four weeks;

 coverage by social security schemes;

 the maintenance of satisfactory standards of health and safety.

17

Paragraph 13, Recommendation No. 146

21

3.3.6. Exclusions

There are several flexibility provisions in ILO Convention No. 138.

Article 4 of ILO Convention No. 138 states that limited categories of

work may be excluded, after consultation, where there are special or

substantial problems of application. In relation to the application of

this Article in Fiji, there have been comments by the ILO Committee of

Experts (“CEACR”) in 2009 that finally noted

18

with interest the ERP,

which “applies to all undertakings, in any branch of economic activity,

where workers are employed”. Therefore, the flexibility clause in

Article 4, which requires the specification in the first report from the

Government, is no longer applicable to Fiji.

19

Article 5 of ILO Convention No. 138 provides that a Member with an

insufficiently developed economy and administrative facilities may,

following consultation, limit the scope of application of the

Convention. Fiji did not use this optional limitation of the scope.

The following industries cannot be exempted from the scope of

application of ILO Convention No. 138: -

 Mining and quarrying;

 Manufacturing;

 Construction;

 Electricity, gas and water;

 Sanitary services;

 Transport, storage and communication;

 Plantations and other agricultural undertakings mainly producing

for commercial purposes, but excluding family and small-scale

holdings producing for local consumption and not regularly

employing hired workers.

Any Members who limit the scope of application of ILO Convention

No. 138 must file reports with ILO outlining the general position of the

exempted activities and progress which may have been made towards

wider application of the provisions of the Convention.

There are further exclusions for children and young people in

educational, vocational, technical and training institutions and to work

carried out by persons at least 14 years of age in undertakings which

are an integral part of an education or training programme.

20

18

CEACR Direct Request made in 2008 to Fiji on ILO Convention No. 138

19

The Review Team understands that Fiji did not claim an exclusion under Article 4 in its first report to ILO

20

Article 6, ILO Convention No. 138

22

3.3.7. Artistic Performances

Article 8 of ILO Convention No. 138 provides an exclusion from the

minimum working age of 15 in relation to artistic performances.

Following consultation, a permit may be granted by the competent

authority for participation in artistic performances by children and

young people. The permit must limit the number of working hours and

prescribe the conditions in which employment is allowed.

3.4. Overview of ILO Convention No. 182

ILO Convention No. 182: -

 requires Member States to put in place immediate and effective

measures for the prohibition and elimination of the worst forms

of child labour as a matter of urgency;

21

 applies to “children” under the age of 18;

22

 includes as the worst forms of child labour: -

o slavery ;

o forced labour;

o sale and trafficking of children;

o forced recruitment of children for use in armed conflict;

o use of children in prostitution, pornography and illicit

activities;

o hazardous work;

23

 requires monitoring mechanisms;

24

 requires the implementation of programmes to eliminate the

worst forms of child labour;

25

 requires effective implementation and enforcement including the

provision and application of penal or other sanctions;

 requires effective and time-bound measures to prevent, remove,

rehabilitate and social integrate children removed from the worst

forms of child labour and access to free basic education;

 requires that children at special risk and the special situation of

girls is taken into account;

26

 requires international co-operation with other Member States.

27

21

Article 1, ILO Convention 182

22

Article 2, ILO Convention 182

23

Article 3, ILO Convention 182

24

Article 5, ILO Convention 182

25

Article 6, ILO Convention 182

26

Article 7, ILO Convention 182

27

Article 8, ILO Convention 182

23

Recommendation No. 190 encourages Member States to: -

 design and implement programmes of action, in consultation with

relevant government institutions and employers’ and workers’

organizations, which: -

o identify and denounce the worst forms of child labour;

o prevent the engagement of children and provide for

rehabilitation and social integration;

o give special attention to younger children, girls, children in

hidden work situations and other children with special

vulnerabilities or needs;

o work with communities with children at special risk;

o raise awareness and mobilize society;

28

 compile detailed information and statistical data on child labour,

to serve as a basis for determining priorities for a national action

plan;

29

 establish appropriate mechanisms to monitor and implement the

programmes;

30

 ensure that the competent authorities who are implementing the

national policies and programmes co-operate with each other and

co-ordinate their activities;

31

 co-operate with international efforts to eliminate the worst forms

of child labour.

32

3.5. Implementation and Enforcement

Both ILO Conventions No. 138

33

and No. 182

34

provide that

implementation and enforcement of the provisions of the Conventions

are required not only in law but also in practice.

The Conventions require Member States to apply the provisions of the

Conventions in legislation and policy.

ILO Convention No. 182 explicitly requires active enforcement of the

provisions of the Convention. Member States are required to take

effective and time-bound measures to prevent the engagement of

children in the worst forms of child labour and provide assistance for

the removal of children from the worst forms of child labour.

28

Paragraph 2, Recommendation No. 190

29

Paragraph 5, Recommendation No. 190

30

Paragraph 8, Recommendation No. 190

31

Paragraph 9, Recommendation No. 190

32

Paragraph 11, Recommendation No. 190

33

Article 9(1), ILO Convention No. 138

34

Article 7(1), ILO Convention No. 182

24

4. REVIEW OF THE LEGISLATIVE AND POLICY FRAMEWORK

4.1. Policy

4.1.1. Overview

Fiji does not fully comply with Article 1 of ILO Convention No. 138 as

Fiji has no formal written policy framework relating to child labour.

Fiji has other policies which are consistent with the elimination of child

labour, including an education policy to ensure “that by 2015 all

children, particularly girls, children in difficult circumstances and

those belonging to ethnic minorities, have access to a complete free and

compulsory education of good quality.”

35

Cabinet has recently

“…approved continued government support for the achievements of

the Education for All Goals by 2015.”

36

The Ministry of Education’s policies listed at Annexure 3, Schedule B

were reviewed. Although the Ministry of Education has comprehensive

policies that may be compatible with a national child labour policy, the

Ministry of Education’s Director for Policy confirmed that the Ministry

of Education does not have a written policy on child labour as such.

37

It

is clear that Fiji does not have a national policy on child labour and it is

a key recommendation of this report that a national child labour policy

needs to be formulated.

It is important that the national policy framework on child labour is

compatible with and integrates the policies of individual Ministries and

Departments.

4.1.2. Approach to Policy Formulation

In terms of formulating and making recommendations on a national

policy on child labour, it is recommended that the Government:-

 takes a co-ordinated approach, ideally via a committee on child

labour which includes all key stakeholders, including social

partners;

 addresses related socio-economic factors in Fiji, including

unemployment, poverty, children’s access to education and social

welfare measures;

 formulates a deliberate and cohesive plan of action to guide

decisions and achieve rational outcomes;

35

“Education for All” Mid Decade Assessment Report 2008 from the Ministry of Education, page 40

36

Fiji Government Online Portal, 25 February 2009: http://www.fiji.gov.fj/publish/page_14304.shtml

37

Correspondence with Mr Benaiamino Salacakau of the Ministry of Education dated 10 September 2009

25

 makes a political decision to secure a commensurate level of

budgetary resources;

38

 assesses the existing systems of labour, health, school inspection

and law enforcement mechanisms at the outset;

39

 formulates clear, written policies relating to the elimination of

child labour in Fiji;

 trains government officials to increase awareness of child labour

issues in a Fiji context;

 gives clear indications of the responsibilities of Ministries and

Departments in implementing and enforcing the provisions of

relevant legislation and Conventions.

4.1.3. Committee for Formulating Policy

Consideration should be given to the composition of the committee to

make recommendations for a policy on child labour.

Fiji has existing committees on child labour including the PAC and a

child labour subcommittee of the NCCC.

The NCCC was endorsed by Cabinet and established following the

ratification of the UN Convention on the Rights of the Child 1989

(“CRC”) by Fiji in 1993. NCCC was mandated by Cabinet to oversee

the implementation of the CRC in Fiji.

In some countries, it is recommended that a committee on child labour

should be appointed or approved by Cabinet.

40

However, given the size

of Fiji, with a population of less than one million people, there is a

likelihood that the same people will be serving on several child

protection and child labour committees. It is therefore important that

the key stakeholders consider the most efficient and practical means to

co-ordinate the formulation and implementation of a national policy

on child labour.

Consideration should be given to: -

 whether a new committee on child labour policy should be

formulated;

 the current role of the NCCC and whether its mandate could be

widened to include the implementation of ILO Convention No.

138 and No. 182;

38

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 40

39

Ibid

40

Clive Pegas’ “Review of Child Labour Laws of Barbados”, June 2005 states: “It is therefore highly

recommended that all Committees on Child Labour should be appointed or approved by the Cabinet, in

recognition of the national significance of their remit and ensuring that all Ministries are seized of the

relevance and importance of the policy implications to their Ministries”, page 23

26

 the co-ordination of existing programmes to address child

protection issues, national child protection work plans and

frameworks;

 the co-ordination of future plans to address child protection and

child labour issues, including reviews and amendments of the

Penal Code and Juveniles Act.

There is some overlap in the provisions of the CRC and ILO Convention

No. 138 and 182. The CRC includes provisions which: -

 prohibit hazardous work for children under the age of 18;

 requires the law to criminalize the worst forms of child labour

including trafficking, forced or compulsory labour and forced

prostitution;

 requires that the minimum age for employment to be not less

than 15 and at least equal to the age of completion of compulsory

education.

There is overlap between the Conventions and the responsibilities of

government officials in implementing the provisions of the CRC and

ILO Conventions. The Police and Department of Social Welfare have

key roles in implementing the provisions of the CRC and attempting to

combat CSEC.

Consideration should be given to giving the child labour subcommittee

of the NCCC a mandate to make recommendations and formulate a

national policy on child labour. Wide consultation with other

stakeholders from relevant Ministries and Departments who are not

members of the child labour subcommittee is essential.

Consultation on Fiji’s national child labour policy is recommended

with the:-

 Ministry of Labour;

 Ministry of Education;

 Department of Social Welfare;

 Fiji Police Force;

 Ministry of Health;

 Attorney General’s Chambers;

 Director of Public Prosecutions;

 Department of Immigration;

 Customs Authority;

 Ministry of Foreign Affairs;

 Department of Tourism;

 Bureau of Statistics;

 Representatives of Employers’ and Workers’ organizations;

27

 Representatives of industries which engage child labourers

including mining, quarrying, marine, fishing, agriculture and

tourism;

 NGO’s and other social partners;

 Community based organizations;

 Faith based organizations.

4.1.4. Technical Assistance

Technical assistance from ILO is recommended to: -

 advise on the key elements that should be included in Fiji’s child

labour policy, with reference to ILO Convention No. 138 and No.

182 and the related Recommendations;

 provide recommendations on the steps that should be taken in

order to formulate a national policy;

 consult with relevant stakeholders and assist with policy

identification and formulation;

 assist with policy drafting, which is understandable and

applicable in a Fiji context;

 help improve the institutional capabilities of Ministries and

Departments;

 provide advice on the implementation of policies;

 promote and coordinate the use of technology (which could

include a centralized child labour database.)

4.2. Legislative Framework

4.2.1. Employment

The Employment Relations Promulgation 2007 came into full effect in

April 2008. The ERP brought Fiji’s labour laws more in line with ILO

Convention No. 138 and No. 182. Implementation and enforcement of

the ERP is required in order to fully comply with ILO Convention No.

138 and No. 182.

4.2.1.1. Minimum age for employment in ERP

ILO Convention No. 138 provides that each Member State must specify

a minimum age for admission to work, which should not be lower than

the age for the completion of compulsory education and in any case,

not less than 15 years. Recommendation No. 146 advocates the

progressive raising of the minimum age for admission to employment

to 16 years or at least fixing a minimum age for work in certain

industries including manufacturing, construction, electricity and gas.

41

Paragraph 7(1) and Paragraph 8, Minimum Age Recommendation, 1973 (No.146)

28

Fiji has complied with Article 2(1) of ILO Convention No. 138 by

setting a minimum working age of 15 years in the ERP.

42

4.2.1.2. Minimum Age Specified: 15 Years

Section 92 of the ERP sets the minimum age for admission to work at

15 years in Fiji.

The minimum age for completion of compulsory education in Fiji

varies from age 12 to 15 years. The Education Legislation needs to be

amended to set the minimum age for completion of compulsory

education at 15 years. The harmonization of the minimum age for

completion of compulsory education and the minimum working age of

15 years would be compliant with ILO Convention No. 138.

43

4.2.1.3. Minimum age for employment in industry specific

legislation

The minimum age for admission to work specified in some of Fiji’s

industry specific legislation is inconsistent with ILO Convention No.

138 and No. 182. For hazardous work, which includes mining and

quarrying, the minimum working age should be increased in industry

specific legislation to the age of 18.

The Mining Act (Cap 146)

Section 95(1): of the ERP provides that “A child must not be

employed underground in a mine.”

Section 97 of the Mining Act conflicts with the provisions of the ERP

and Article 3(1) of ILO Convention No. 138, as it states that the

minimum age for males working in or about a mine is 14 years and

working underground in a mine is 16 years. Work in mines by females

is prohibited.

44

The Quarries Regulations

Regulation 20(1) of the Quarries Regulations provides that the

minimum working age for males working in or about a quarry is 14

years and at the working face of a quarry is 16 years. Work in quarries

by females is prohibited.

45

42

Fiji did not elect, pursuant to Article 2(4) of Convention 138 to specify a minimum age of 14 years.

43

Article 2(3) of ILO Convention No. 138

44

Section 97(1) of Mining Act (Cap. 146)

45

Regulation 20(1) of the Quarries Regulations

29

Gap

The Mining Act is inconsistent with the ERP which states that a child

under the age of 18 should not be employed in a mine. Work in a

quarry is considered hazardous work and the minimum working age in

the Quarries Regulations should be 18 years.

Recommendation

Mining and quarrying is regarded as hazardous work and should be

considered in the tripartite consultation in relation to hazardous work.

The Mining Act and Quarries Regulations should be amended to

increase the minimum age for mining and quarrying to the age of 18.

The Marine Act 1986

The Marine Act states that the minimum working age on vessels is 16

years. A person between the age of 16 and 18 years may be employed on

a vessel if the requirements of the regulations are complied with.

46

The Marine Regulations

47

conflict with the Marine Act and state that

the minimum working age on a vessel is 10 years.

The tripartite consultation in relation to hazardous work should

consider whether work or particular activities on a vessel are hazardous

work.

Recommendation

If work on a vessel is considered hazardous work, the Marine Act and

regulations should be amended to increase the minimum age for work

on a vessel to the age of 18. In any event, Schedule 1, Part 2 to the

Marine (Masters and Seamen) Regulations, 1990

48

should be reviewed

and consideration given to references to the repealed Employment Act

and to the provision which prescribes a minimum age of 10 years for

working on a vessel.

4.2.1.4. Hazardous Work

ILO Convention No. 138

49

and ILO Convention No. 182

50

prohibit work

which is likely to jeopardize the health, safety or morals (“hazardous

46

Section 110(1) of the Marine Act

47

Schedule 1, Part 2 of the Marine (Masters and Seamen) Regulations, 1990 – Legal Notice 821

48

Legal Notice 821

49

Article 3(2) of ILO Convention No. 138

50

Articles 3(d) and Article 4 of ILO Convention No. 182

30

work”) of children under the age of 18. ILO Convention No. 182

provides that hazardous work is a worst form of child labour.

ILO Convention No. 138 and No. 182 have only been partly applied in

Fiji. The ERP and the Health and Safety at Work Act 1996 (“HSWA”)

contain provisions which prohibit hazardous work for children.

Determination of the types of work and occupations which constitute

hazardous work is required.

One of the objects of the ERP is to prohibit hazardous work.

51

Section 4 of the ERP defines a “child” as a person under the age of 18

years, which is consistent with Article 2 of ILO Convention No. 182.

Section 95(2) of the ERP provides that: -

“…the Minister may, after consulting the National Occupational Health

and Safety Advisory Board established under the Health and Safety at

Work Act 1996 and by order in the Gazette declare any employment of

workplace to be a prohibited or restricted employment or workplace for

the purposes of this Part on the ground that it is injurious to health or

is hazardous, dangerous or unsuitable, including attendance on

machinery, working with hazardous substances, driving motor

vehicles, heavy physical labour, the care of children or work within

security services.

Section 95(5) further provides: -

”An employer who: -

(a) employs a child underground in a mine or in an employment or

workplace declared under subsection (2); or

(b) contravenes subsection (3),

commits an offence.

Regulation 40(1) of the Employment Relations (Administration)

Regulations 2008

52

provides that: -

“A child must not be employed or permitted to be employed in any of

the following situations:

(a) in situations of direct hostilities;

(b) any work for which the child has little capacity;

51

Section 90 of the ERP

52

Legal Notice 52

31

(c) any work which is hazardous to the child’s health, mental,

spiritual or social development;

(d) in an environment which subjects the child to physical harm,

psychological torture, any form of neglect, torture, any form of

cruel, inhuman or degrading treatment, or which does not foster

the health, self-respect and dignity of the child.

(2) An employer who does not comply with sub regulation (1)

commits an offence.”

The HSWA has comprehensive provisions which govern hazardous

work and regulations which define types of hazardous work

53

and

hazardous substances. The penalties under the HSWA are significant.

A company can be fined up to F$100,000 and an individual can be

fined up to F$10,000.

54

The HSWA does not define a “child” but it is likely that the definition of

“worker” would include children.

55

Gap

A list of hazardous work has not been determined in Fiji. Section 95(2)

of the ERP does not compel the Minister to determine a list of

hazardous work and does not state that there must be tripartite

consultation with employers and workers’ organizations.

56

Given that the ERP has recently come into effect, rather than amend

the legislation to compel determination of a list of hazardous work via a

tri-partite process, it is recommended that the process of determining

the list is commenced immediately.

Recommendations

It is recommended that the Minister of Labour consult with the

National Occupational Health and Safety Advisory Board established

under the HSWA (“Health and Safety Board”) and employers and

workers’ representatives in order to determine a list of hazardous work.

Following tripartite consultation, a list of hazardous activities and

occupations should be determined and gazetted.

It is essential that there is wide tripartite consultation, with the

relevant Ministries and Departments (including the Ministry of Health)

53

Regulation 30 of the Health and Safety at Work (General Work Place Conditions) Regulations 2003

defines hazardous work.

54

Section 66 of the HSWA

55

Section 5 of the HSWA defines a “worker” as a person who is employed under a contract of service or who

works under a contract for service.

56

As required by Article 3(2) of ILO Convention No. 138

32

and the employers and workers organisations. Consultation with

children and young people may also be considered.

The tripartite consultation should consider whether Fiji should take

advantage of an exception

57

to authorize certain kinds of hazardous

work for 16 -17 year olds under strict conditions.

It is recommended that ILO provide advisory and technical support to

the Ministry of Labour and stakeholders in relation to the

determination of hazardous work. Advice on relevant international

standards

58

and indications of the types of work which constitute

hazardous work (for example, mining and quarrying) would be helpful.

The Review Team understands that “the process to determine the list

of hazardous work for children in Fiji will soon begin through the PAC

in consultation with stakeholders.”

59

It is recommended that: -

 “Rather than designating entire sectors or occupations as

hazardous, it is preferable to identify the specific tasks within each

sector that are likely to pose a risk to young people;

 It is very important to involve occupational health and safety

specialists or others with a relevant medical training.”

60

Recommended Amendments to the Labour Legislation

ILO’s “Time Bound Programme Manual for Action Planning, 2003

recommends that the Minister for Labour should be empowered to

make regulations or legislation which: -

 provide that the list of hazardous work should be periodically

examined and revised following consultation;

61

 establishes procedures for the verification of the age of the

persons under 18 prior to their being engaged in employment. Fiji

has a birth registration system with minimal charges. It should be

considered whether the Labour Legislation should be amended to

require employers to hold copies of birth certificates of children as

proof of the age of children employed;

 provides for the emergency removal of children from situations of

hazardous labour to a place of safety;

 provide guidelines on what should be included in the registers of

children who are employed;

57

Article 3(3) of ILO Convention 138

58

As required by Article 4 of ILO Convention 182

59

ILO Suva, TACKLE Update, Vol. 1, March 2009

60

ILO’s “Time Bound Programme Manual for Action Planning, 2003, page 33

61

As required by Article 4(3) of ILO Convention No. 182

33

 authorize labour inspectors and police officers to enter and search

any premises where there are reasonable grounds to believe that a

child is involved in prohibited hazardous labour.

62

ILO’s “Time Bound Programme Manual for Action Planning, 2003

also recommends that “the following measures should be considered to

strengthen enforcement of the regulation:

 institute and consolidate a coherent system of registration and

inspection of business establishments, self employment and

labour;

 provide for the designation of special child labour inspectors, or at

least the granting of a mandate of general labour inspectors to

intervene on hazardous work carried out by children;

 elaborate the powers and functions of child labour inspectors.”

63

It is suggested that these recommended amendments to the Labour

Legislation are considered, including an amendment to Section 99 of

the ERP to require that the register should include the name, address,

and date of birth of every person appearing to be under 18 employed,

the type of work performed and the hours of work performed.

Community Work

It is recommended that the tripartite consultation on hazardous work

consider whether court ordered community work

64

may constitute

work that is likely to harm the health, safety or morals of children.

The Community Work Act provides, inter alia, that: -

Section 3: Community work may be ordered by a court as an

alternative to imprisonment.

Section 4: The court must be satisfied that: -

 the person consents to community work;

 the person is a suitable person to perform community work;

 suitable work is available for that person to perform for the

purpose of the sentence; and

 there exist satisfactory arrangements for the supervision of that

person's performance of the work.

62

ILO’s “Time Bound Programme Manual for Action Planning, 2003, page 34

63

ILO’s “Time Bound Programme Manual for Action Planning, 2003, page 34

64

Pursuant to section 3 of the Community Work Act

34

Section 9: Following sentencing, the Supervising Officer shall arrange

for the offender to perform suitable authorized work for the number of

hours specified by the Court;

Section 15: outlines the types of work that an offender may be

required to perform which may include work in a hospital, for any

Provincial, Tikina or Village Council or on any State land.

Recommendation

If certain types of community work are considered hazardous work,

consideration may be given to: -

 including such types of community work in the list of hazardous

work which should not be carried out by children;

 amending the Community Work Act. Amendments might include:

-

o a prohibition of hazardous community work being ordered

for children;

o children being defined as persons under the age of 18.

65

The Community Work Act provides that community work may be

imposed by a court, as an alternative to imprisonment, and with the

consent of the person who has been convicted of an offence. It is

preferable that community work is not imposed by an administrative

authority, otherwise the work could fall within the scope of “forced

labour”, which is prohibited as a worst form of child labour.

Working Conditions and Night Work

Recommendation No. 190 provides guidelines on the types of work

that constitute hazardous work, including “…work for long hours or

during the night…”

66

The Labour Legislation has various provisions which protect children’s

working conditions and relate to night work including: -

Section 97(1): A child must not be employed or permitted to be

employed for more than 8 hours in a day and must be given at least 30

minutes paid rest for every continuous 4 hours worked;

Regulation 41: no child may work beyond 10pm at night and each

child employed at night must be given a 30 minute paid dinner break

within 2 hours of starting work;

67

65

A “child” is not defined in section 2 of the Community Work Act

66

Paragraph 3 of Recommendation No. 190

67

Regulation 41 of the Employment Relations (Administration) Regulations 2008, Legal Notice 52

35

Section 98: the Minister may, after consultation with the

Employment Relations Advisory Board (“ERAB”), by order in the

Gazette, prescribe conditions for the employment of children between

6pm of any day and 6am on the following day in a workplace;

Section 264(1): the Minister may, on the advice of the ERAB, make

regulations to give effect to the provisions of the ERP including

regulations which prescribe the hours of work for children, the records,

registers and documents kept by employers in respect of children,

prohibit, restrict, control and regulate the employment of children in

workplaces and specified occupations.

Recommendation

It is recommended that further regulations are passed relating to

children’s working conditions and hours of work, taking into account

Recommendation No. 146.

Paragraph 13 of Recommendation No. 146 states that special

attention should be given to: -

 the provision of fair remuneration for children bearing in mind

the principle of equal pay for equal work;

 the strict limitation of working hours in a week and a prohibition

of overtime;

 the granting of a minimum of 12 hours’ night rest;

 the granting of an annual holiday with at least four weeks paid

leave and, in any case, not shorter than that granted to adults;

 coverage by social security schemes. In a Fiji context, this would

include the Fiji National Provident Fund (“FNPF”);

 the maintenance of satisfactory standards of safety and health and

appropriate instruction and supervision.

The conditions outlined in Paragraph 13 of Recommendation No. 146

are most relevant to young people who have reached the minimum

working age of 15 and are working full time. Full details of the

recommended amendments to the Labour Legislation are outlined at

Annexure1, Schedule A.

It is also recommended that the Fiji National Provident Fund

Regulations are amended to lower the age of a person who is eligible to

make voluntary contributions to the fund from 16 to 15 years.

4.2.1.5. Light Work

Article 7 of ILO Convention No. 138, which provides that light work

may be permitted for 13-15 year olds, has only been partly applied in

36

Fiji. The types of work that constitute “light work” need to be

determined.

Section 93(2) of the ERP provides that: -

“Subsection (1) does not apply to a child of 13 to 15 years of age

engaged in employment or light work or in a workplace in which

members of the same family or of communal or religious group are

employed provided that –

(a) the employment is not likely to be harmful to the health or

development of the child; and

(b) the employment is not such as to prejudice the child’s attendance

in school, participation in vocational orientation or training

programmes approved by a competent authority or capacity of the

child to benefit from the instruction received.”

Gap

A list of the types of employment or work which constitute “light work”

for 13 to 15 year olds has not been determined in Fiji.

Recommendation

It is recommended that the Ministry of Labour consult with relevant

stakeholders and prepare a list of the types of work that constitute

“light work” for 13 to 15 year olds. The list of “light work” should be

incorporated in the Labour Legislation. Technical assistance from ILO

is recommended, to provide guidance on what is considered “light

work” in other developing countries and the process for determining a

list of “light work.”

ILO Convention No. 138 provides that the hours of work and working

conditions for children and young people who undertake “light work”

should be determined.

68

4.2.1.6. Exclusions

There are several flexibility provisions in ILO Convention No. 138,

which Fiji has not taken advantage of.

Fiji has not elected to drop the minimum age for entry into

employment from 15 to 14 years.

68

Article 7(3) of ILO Convention No. 138 and Paragraph 2 of Recommendation No. 146

37

In carrying out consultation and determining lists of “hazardous work”

and “light work”, it should be considered whether Fiji should take

advantage of exclusions relating to: -

 certain types of listed hazardous work that are acceptable for 16-

17 year olds under strict conditions.

69

Certain categories of work,

including manufacturing, construction and transport cannot be

exempted;

70

 children and young people in educational, vocational, technical

and training institutions and to work carried out by persons at

least 14 years of age in undertakings which are an integral part of

an education or training programme.

71

The Training and Productivity Authority of Fiji (“TPAF”) is the

competent authority for vocational training and apprenticeship. The

Training and Productivity Authority of Fiji Act, (Cap. 93) (“TPAF

Act”) is consistent with ILO Convention No. 138. The minimum age for

an apprentice is 15 years.

72

The Fiji National Training (1976) Order

(“TPAF Order”) provides that a condition shall be implied into every

agreement of apprenticeship in a designated trade or occupation that

an apprentice under the age of 18 shall not be permitted to work more

than 20 hours overtime in a month without prior Council approval.

73

Recommendation

Consultation with TPAF is recommended to ascertain whether

amendments or further legislative provisions are required in relation

to:-

 the system of vocational and technical education;

 the monitoring and minimum standards of such institutions;

 the conditions of work for children and young people as part of

their vocational and technical education;

 implementation of the TPAF Act and whether in practice there is

any monitoring of the age and employment of apprentices

including any monitoring of overtime by apprentices under the

age of 18;

 the types of employment and activities covered by the TPAF Act,

and whether this includes hazardous work.

69

Article 3(3) of ILO Convention 138

70

Article 5 of ILO Convention 138

71

Article 6, ILO Convention No. 138

72

Order 3(1)(a) of the TPAF Order

73

Order 4(1)(xi) of the TPAF Order

38

4.2.1.7. Artistic Performances

Article 8 of ILO Convention No. 138 provides an exclusion from the

minimum working age of 15 for artistic performances. Article 8 of ILO

Convention No. 138 has not been used in Fiji.

Gap

There are no legislative provisions in relation to artistic performances

in the Fiji’s Labour Legislation.

Recommendation

Article 8 of ILO Convention No. 138 requires a system of individual

permits (for each child who performs. This provision may be used for a

very young child or even a baby who appears on television or an

advertisement for instance.

It is recommended that a provision is included in the ERP relating to

cultural and artistic performances by children. Following investigation

and tripartite consultation, consideration should be given to adopting a

provision which: -

 allows an individual permit to be granted by the competent

authority for participation in artistic performances by children

and young people. The provision should state that the permit

must limit the number of hours that can be worked and prescribe

the conditions in which employment is allowed; or

 provides for an equivalent system.

Further tripartite consultation and assistance from ILO is

recommended, particularly on the practical implications of granting

individual permits, including cases in remote areas, where children are

part of groups who regularly perform cultural items at tourist resorts.

Article 8 of Convention 138 requires an individual permit for each child

who performs.

4.2.2. Education

Article 2(3) of ILO Convention No. 138 provides that the minimum

working age shall be not less than the age of completion of compulsory

schooling and, in any case, not less than 15 years.

ILO Convention No. 182 emphasizes the importance of education in

eliminating child labour and provides that Member States must put in

place time bound measures to ensure access to free basic education,

39

and wherever possible and appropriate, vocational training, for all

children removed from the worst forms of child labour.

74

Fiji’s Education Legislation is not consistent with Article 2(3) of ILO

Convention No. 138 and Article 7 of ILO Convention No. 182.

The Education and Labour Legislation need be harmonized by

increasing the age of completion of compulsory schooling to the

minimum working age of 15, throughout Fiji.

The ILO Committee of Experts, in its Direct Request (2006)

concerning Fiji under Convention 182, as noted among the Desk

Review Findings of the ILO TACKLE team in Geneva dated 23

September 2008 (“ILO Committee of Experts’ Direct Request

(2006) on C182”) noted: “The Committee expressed concern at the

large number of children who do not attend school and may be engaged

in the worst forms of child labour. The Committee also expressed its

view that education contributes to eliminating the worst forms of child

labour and it encouraged the Government to continue its efforts to

ensure access to free primary education to all children in Fiji.”

75

The Ministry for Education’s policies advocate “universal primary

education”

76

and “Education For All”

77

but important issues need to be

addressed, including how to fund, monitor and enforce compulsory

education.

4.2.2.1. Minimum Age for Compulsory Education

Fiji’s Education Legislation provides that: -

 the Minister for Education has the power to make orders to

specify any area in which all children of a certain age shall be

required to attend school;

78

 it is compulsory for children to commence school at Class 1 level

(when they turn 6);

79

 the minimum age for completion of education is Class 8 or Form 2

level throughout Fiji. Further orders and regulations have been

passed which vary the minimum age for completion of

compulsory education in different districts;

80

74

Article 7 of ILO Convention No. 182

75

ILO Committee of Experts’ Direct Request (2006) on C182, page 3

76

Sustainable Economic and Empowerment Development Strategy (SEEDS) Report 2008-2010, Ministry

of Education, page 24

77

Education for All” Mid Decade Assessment Report 2008 from the Ministry of Education, page 30

78

Section 28 of the Education Act (Cap. 262)

79

Regulation 3(1) of the Compulsory Education Regulations, 1997

80

Regulation 3(2) of the Compulsory Education Regulations, 1997

40

 initially, a Compulsory Education Order prescribed a minimum

compulsory school age of 15 for two districts (Rakiraki and

Cakaudrove);

81

 a further Compulsory Education Order prescribed a minimum

compulsory school age of 15 for two additional districts (Eastern

Division and Macuata/Bua Districts);

82

 In Rotuma

83

the age of compulsory education is 14.

84

Gap

The minimum age for completion of compulsory education varies

through out Fiji from 12 to 15 years and is not consistent with the

minimum working age prescribed in ILO Convention No. 138 or the

ERP.

Recommendation

It is recommended that the Education Legislation is reviewed and

amended in order to make 15 years the consistent age for completion of

compulsory education throughout Fiji, including Rotuma.

4.2.2.2. Barriers to Education

Barriers to free basic education in Fiji include: -

 the cost of education. School fees are generally payable in addition

to school related expenses.

85

The Education Act provides that

students may be refused admission or re-admission to school for

non payment of fees and proceedings may be instituted for the

recovery of school fees in Government schools;

86

 related family pressures;

 social and cultural factors including lack of parental commitment

to a child’s education;

 academic failure;

 lack of facilities/resources for children with special needs;

 school admission and readmission policies (currently, a child may

be struck off the role if s/he is absent for more than 4 weeks);

87

 peer pressure;

 violence in schools (including corporal punishment);

 access problems to schools in remote areas;

88

81

Order 4(2) Compulsory Education Order 1997

82

Order 1 Compulsory Education Order 1998

83

Rotuma, a Fijian Dependency, is an island outside the four divisions of Fijian.

84

Regulation 4(1) of the Rotuma (Primary School) Regulations

85

Save the Children’s Report: Keeping Children in School 1998 noted: “The Ministry provides teacher

salaries and a per capita grant for each student but many school management boards maintain their

schools cannot function without other student fees,” Page 8

86

Section 25 of the Education Act

87

Interview with Mrs Viniana Kunabuli, Ministry of Education on 11 March 2009

41

 language barriers;

89

 a lack of legislative provisions relating to parents’ roles in

enforcing compulsory education;

90

 risk factors such as HIV/AIDS, drugs and prostitution.

91

4.2.2.3. Overall Approach to Review of Education Legislative

and Policy

It is essential that any review and amendment of the Education

Legislation and policy takes an all-encompassing approach and

considers: -

 the underlying causes which prevent access to free basic education

and result in drop outs and absenteeism;

 a variety of options and addresses the obstacles to education,

including the possibility of a non formal approach to education;

92

 gaps in the current policies and programmes, including clear

written policies which address obstacles to education and possible

solutions;

 funding and resource issues;

 identification and prioritisation of programmes including a time

line for implementation, which is best determined by the Ministry

of Education.

4.2.2.4. Technical Assistance

The Ministry of Education would benefit from technical assistance to

assess and advise on: -

 strategic planning of the policy and legislative review for the

Ministry including a plan of action, steps that should be taken and

a time line for implementation;

 and assist with policy advice and policy formulation;

 the key elements that should be included in the Ministry of

Education’s policies, with reference to ILO Convention No. 138

and No. 182, the related Recommendations and the CRC;

 institutional capability and resource issues within the Ministry of

Education.

Particular sections in the Education Legislation which should be

reviewed are outlined at Annexure 1, Schedule B to this Report.

88

Save the Children’s Report , “Keeping Children in School” 1998, Pages 20-29

89

Education for All Mid Decade Assessment Report 2008 from the Ministry of Education noted at page 31:

“English is the official language taught in schools but is the second language to most students”;

90

Education for All Mid Decade Assessment Report 2008 from the Ministry of Education, page 30

91

Education for All Mid Decade Assessment Report 2008 from the Ministry of Education, page 32

92

For example, ILO’s Publication “Modern Policy and Legislative Responses to Child Labour” states “In

Bangladesh, the non-formal education programme (NFE) provides education in designated non-formal

education centres run by Government and NGO’s,” page 85.

42

The Annual Corporate Plan 2009 for the Ministry of Education states

that the Education Act is to be reviewed by December 2009. Recent

reports indicate that that the deadline for submissions is 31 October

2009. The Ministry of Education has invited stakeholders to provide

their views on issues including: -

 compulsory education;

 fees and levies;

 management of schools;

 absenteeism;

 rights of parents and students;

 rights of school management;

 disciplinary procedures;

 examinations and assessments;

 curriculum;

 religious education;

 communities and health and safety.

93

It is recommended that ILO make written submissions to the Ministry

of Education in relation to proposed amendments to the Education

Legislation. It is recommended that policy content and formulation are

considered before amendments to the Education Legislation are made.

Consultation with stakeholders on proposed legislative and policy

amendments is also recommended.

4.2.3. Harmonisation of definition of “child” in legislation

Article 2 of ILO Convention No. 182 and the CRC

94

define a child as a

person under the age of 18.

The ERP, Family Law Act and Immigration Act consistently define a

“child” as a person under the age of 18.

Some of Fiji’s legislation, including the HSWA, does not define a

“child” but would be applicable to children.

The following legislation is inconsistent with the definition of a child in

ILO Convention No. 182 and the CRC: -

Section 4 of the Factories Act: a “child” is a person under the age of 15

years and a “young person” is a person under the age of 18.

Section 2 of the Juveniles Act: a “child” means a person under the age

of 14. A “Juvenile” means a person who has not attained the age of 17

93

Fiji Government online: http://www.fiji.gov.fj/publish/page_15800.shtml

94

Article 1 of the CRC

43

years and includes a child and a young person. A young person is

defined as a child between the age of 14 and 17 years.

A “child” is not defined in the Penal Code but various provisions

95

have

age thresholds.

Section 3(2) of the Adoption of Infants Act defines an “infant” as a

person under the age of 21.

Section 12 of the Marriage Act provides that the age of consent to

marriage is 18 years in the case of a male and 16 years in the case of a

female.

Gap

The legislation relevant to child labour does not consistently define a

child as a person under the age of 18. The legislation should be

amended so there is a consistent definition of a child.

Recommendation

It is recommended that the definition of a “child” in Section 2 of the

Interpretation Act is amended to mean a person under the age of 18

years.

The effect of an amendment to Section 2 of the Interpretation Act is

that in every written law and public documents enacted, a child will be

universally defined as a person under the age of 18.

For uniformity, consideration may also be given to amending

legislation which does not define a child as a person under the age of

18.

The provisions of the Factories Act have been superseded by the

HSWA. Regulations should be passed under the HSWA in order to

repeal the Factories Act.

The definitions of “young person” and “juvenile” under the Juveniles

Act were amended from 17 to 18 years by the Prisons and Corrections

Act No. 2 of 2006. The Prisons and Corrections Act No. 2 of 2006 is yet

to come into force and a commencement date should be gazetted.

It is recommended that in line with the Fiji Law Reform Commission’s

Report on Sexual Offences Against Children, May 2000 (“FLRC’s

Report on Sexual Offences Against Children”) certain sections

of the Penal Code with age thresholds below 18 are repealed. The

95

Including sections 155, 156, 157, 158, 159, 160 and 171 of the Penal Code

44

provisions should be replaced by new offences of indecent dealings and

other sexual offences against children under the age of 18 years. Some

sections

96

in the Penal Code should be amended to reduce the age

threshold from 21 to 18 years.

A full list of recommended amendments to the Penal Code is annexed

to this Report at Annexure 1, Schedule C.

Consideration should be given to whether the definition of an “infant”

(or “child” if amended) in the Adoption of Infants Act should be

amended from the age of 21 to 18 years.

Section 12 of the Marriage Act should be amended to bring the age of

consent for a female from 16 to 18 years.

4.2.4. Worst Forms of Child Labour

4.2.4.1. Slavery

There are legislative provisions in Fiji’s Constitution, ERP, Penal Code

and Juveniles Act which relate to slavery or pursuant to which slavery

offences may be prosecuted.

Section 24(1) of the Constitution: “A person must not be held in

slavery or servitude.”

Section 91(a) of the ERP follows the wording of Article 3(a) of ILO

Convention No. 182 and prohibits “all forms of labour, slavery or

practices similar to slavery…”

Section 249 of the Penal Code: “Any person who kidnaps any person

is guilty of a felony;”

Section 251 of the Penal Code: “Any person who kidnaps or abducts

any person with intent to cause that person to be secretly and

wrongfully confined, is guilty of a felony;”

Section 252 of the Penal Code: any person who kidnaps or abducts a

person in order that such person may subjected or in danger of being

subjected to grievous harm or slavery or to the unnatural lust of any

person or knowing it is likely that such person will be so subjected or

disposed of is guilty of a felony.

Section 256 of the Penal Code: a person who wrongfully confines a

person is guilty of a misdemeanor.

Section 57 of the Juveniles Act: a person who has custody, charge or

96

For example, section 157 relating to procuration

45

care of a juvenile and willfully assaults, ill-treats, neglects, abandons or

exposes such juvenile… or causes the juvenile to become in need of

care, protection or control is guilty of an offence.

4.2.4.2. Sale and Trafficking of Children

The legislation relevant to the sale and trafficking of children in Fiji

includes the Penal Code, Family Law Act, Immigration Act, Adoption of

Infants Act and the Marriage Act. Fiji has also ratified the Convention

for the Suppression of Trafficking in Women & Children 1921.

Penal Code

Section 153: any person who takes or causes an unmarried girl under

the age of eighteen, out of the possession and against the will of her

father or mother or other person having the lawful care or charge of

her, with the intent that the girl shall be unlawfully and carnally known

by any man is guilty of a misdemeanor. It shall be a sufficient defence

that the person charged had reasonable cause to believe and did in fact

believe that the girl was of or above the age of eighteen years;

Section 157(1): any person who procures or attempts to procure any

woman or girl to leave Fiji, with the intent that she may become an

inmate of or frequent a brothel elsewhere

97

or procures or attempts to

procure any woman or girl to leave her usual place of abode in Fiji

(such place not being a brothel) with the intent that she may become a

prostitute either in Fiji or elsewhere is guilty of a misdemeanor;

98

Section 162: any parent or person who has custody, charge or care of

a minor under the age of sixteen, who sells, hires or disposes of such

minor with intent (or knowing it is likely) that the minor shall be

employed or used for prostitution or illicit sexual intercourse or any

immoral purpose is guilty of a misdemeanor;

Section 163(1): any person who buys hires or obtains possession of a

minor under the age of sixteen with intent (or knowing it is likely) that

such minor will be employed or used for prostitution or illicit sexual

intercourse or for any immoral purpose is guilty of a misdemeanor;

Section 163(2): Any common prostitute or other person of known

immoral character who buys hires or otherwise obtains possession of a

minor under the age of sixteen years shall, until the contrary is proved,

be deemed to have obtained possession of such minor with the intent

mentioned in this section;

97

Section 157(1)(c) of the Penal Code

98

Section 157(1)(d) of the Penal Code

46

Section 252: Any person who kidnaps or abducts a person in order

that s/he may be subjected to grievous harm, or slavery or to the

unnatural lust of any person…is guilty of a felony;

Section 253: any person who, knowing a person has kidnapped or

abducted, wrongfully conceals or confines such person is guilty of a

felony;

Section 254: any person who by force or fraud takes, decoys or

entices away or detains a child under the age of fourteen years with

intent to deprive the parent, guardian or caregiver of such child and

any person who receives or harbours any such child is guilty of a

felony;

Section 255: any person who unlawfully takes or causes an unmarried

girl under the age of sixteen years out of the possession and against the

will of her father or mother or person in lawful care or charge of her is

guilty of a misdemeanor.

99

Gaps in the Penal Code

The age thresholds in the provisions relating to the sale and trafficking

of children in the Penal Code vary.

Recommendation

 The age thresholds in the Penal Code should consistently be set at

18 years which would be consistent with the definition of a child

in ILO Convention No. 182 and the CRC;

 It is recommended that the Penal Code is amended in line with

the FLRC’s Report on Sexual Offences Against Children. A

summary of the recommended amendments to the Penal Code are

outlined at Annexure 1, Schedule C.

Adoption of Infants Act

Section 3(2): an “infant” is defined as a person under the age of

twenty-one;

Section 6(2): an adoption order shall not be made in any case where

the sole applicant is a male and the infant is a female unless there are

special circumstances which justify the making of an adoption order as

an exceptional measure;

99

s.255 Penal Code: Any person who unlawfully takes or causes to be taken any unmarried girl, being under

the age of sixteen years, out of the possession and against the will of her father or mother, or of any

other person having the lawful care or charge of her, is guilty of a misdemeanour.

47

Section 6(4): an adoption order shall not be made in favour of any

applicant who is not resident in Fiji or in respect of any infant who is

not so resident;

Section 8: It is the duty of the Department of Social Welfare to act as

the guardian ad litem and to investigate as fully as possible all the

circumstances of the infant and the applicant, and all other matters

relevant to the proposed adoption, with a view to safeguarding the

interests of the infant before the court.

Gaps in Adoption of Infants Act

 Despite a legislative provision which prohibits adoptions by non

residents, the cases indicate that inter country adoptions have

been common place in Fiji;

100

 A “resident” is not defined in the Adoption of Infants Act. The

Department of Social Welfare’s draft Standard Operating

Procedures (“Procedures”) indicate that applications for

adoptions will not be received from non residents, including Fiji

citizens who reside overseas;

101

 The Adoption of Infants Act needs to be updated, taking into

account the provisions of the Conventions, CRC, current practices

and Procedures.

102

Recommendations in relation to the Adoption of Infants Act

It is recommended that the Adoption of Infants Act is reviewed and it is

considered whether: -

 the term “infant” should be replaced with the term “child”;

 the term “and the infant is female” should be deleted from section

6(2);

 whether gender neutral language should be used in section 6(2);

 the age of an infant in section 3(2) should be amended from 21 to

18 years;

 “Resident” should be defined;

 Section 6(4) should be amended to allow inter-country adoption if

the child cannot be placed in an adoptive or foster family or

cannot be cared for in a suitable manner in Fiji. Section 6(4)

should also provide that proper safeguards must be put in place to

100

In re S (an Infant) [1997] FJHC 182, Hbk0059j.1997s (24 November 1997)

Lakhan v Lata [1994] FJHC 26; HBC0585j.93s (22 March 1994)

Social Welfare Officer v Marshall [2008] FJHC 283, HBA11.2006 (7 March 2008)

101

Department of Social Welfare’s Procedures state “Applications will not be received from persons who

are not resident in Fiji. [This is applied also to persons who may still have Fijian citizenship, but actually

reside in any overseas country.]

102

The Department of Social Welfare’s Procedures provide that “Inter country adoption may be considered

as an alternative means of a child’s adoption, only after all efforts have been exhausted to find an

appropriate adoptive family in Fiji.”

48

protect the child in cases of inter-country adoptions.

103

The

amended legislative provision could require the Department of

Social Welfare to liaise with the country that the child will be

resident in and make it a requirement for there to be post

adoption monitoring;

104

 Section 6 should prohibit any financial gain for any adoptions

with penalties;

105

 Informal adoptions are or should be considered or monitored by

the Department of Social Welfare. Consideration should be given

to whether the concept of “kinship care” by family should be

defined and provisions relating to “kinship care” included in the

Adoption of Infants Act or the Juveniles Act.

106

Marriage Act

Section 12: the age of consent to marriage by a female is sixteen years

and a male is eighteen years.

107

Recommendation

It is recommended that the age of consent to marriage by a female is

increased to 18 years.

Immigration Act 2003

The Immigration Act has comprehensive provisions relating to the

trafficking of children, which include: -

Section 17: the definition of a child as “a person under the age of 18

years” which is consistent with ILO Convention No. 182;

Section 18: Part 5 relating to trafficking covers offences that took

place in Fiji or outside Fiji if the trafficking originates in Fiji or if the

trafficker is a Fiji citizen;

Section 20: “A person who engages in trafficking a child regardless of

whether the child’s entry into the Fiji Islands or any other state was

arranged by unlawful means commits an offence”;

103

In line with Article 21(c) of the CRC: “Ensure that the child concerned by inter-country adoption enjoys

safeguards and standards equivalent to those existing in the case of national adoption.”

104

The Review Team understands that this is the general practice of the Department of Social Welfare but

recommends the practice is formalized. Interview with Ms Ilisapeci Rokotunidau, Mrs Ana Delana and

Ms Arieta Tagivetaua at the Department of Social Welfare on 13 March 2009

105

In line with Article 21(d) of the CRC: “Take all appropriate measures to ensure that, in inter-country

adoption, the placement does not result in improper financial gain for those involved in it.”

106

Interview with Ms Ilisapeci Rokotunidau, Mrs Ana Delana and Ms Arieta Tagivetaua at the Department

of Social Welfare on 13 March 2009. Mrs Rokotunidau noted that “kinship care” should be defined and

legalized because it is common place in Fiji and another form of adoption.

107

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, recommends that “Consideration

should be given to raising the minimum age at which a person can contract a marriage to 18 years.”

49

Section 21: an employer commits an offence if he/she prevents an

employee from leaving Fiji, ascertaining or seeking his/her entitlement

under Fiji law or disclosing the circumstances of his/her employment.

Such action by the employer may include withholding the employee’s

passport, preventing the use of a phone and preventing a labour officer

from entering the premises.

Section 27, 28, 29 and 30: relate to offences to aid, abet, incite,

conspire or attempt to commit an offence under Part 5;

Section 31 which states that “a trafficked person is immune from

prosecution;”

Schedule 2 (Section 65): the penalty for trafficking children is a fine

of F$750,000 or 20 years in prison.

Recommendations in relation to the Immigration

Department

It is recommended that: -

 the officers in the Department of Immigration receive training on

child labour and in particular, child trafficking, which should

include reference to: -

o Part 5 of the Immigration Act relating to trafficking;

o ILO Convention No. 182;

o CRC;

o Convention on the Civil Aspects of International Child

Abduction 1980 ;

o International Convention for the Suppression of Trafficking

in Women and Children 1921;

o Practical ways of identifying and handling suspected

trafficking cases.

 the Department of Immigration consider the recommendation in

ILO’s “Time Bound Programme Manual for Action Planning,

2003” which states “It is imperative for States to create a

conceptual framework setting out the key elements of trafficking,

namely, recruitment, transportation, transfer, harbouring or

receiving a child for the purposes of exploitation;”

108

 there is increased co-operation and co-ordination of information

with other Ministries and Departments including the Customs

Authority, Police and the Department of Tourism. It is critical that

new systems are put in place to disseminate alerts, particularly

from police and offshore agencies including INTERPOL;

108

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 18

50

 consideration is given to a new provision in the Immigration Act

which gives special powers for assets to be traced overseas.

109

4.2.4.3. Forced/Compulsory Labour

Section 91(a) of the ERP prohibits “any form of forced and

compulsory labour.”

Section 24(1) of the Constitution provides that “A person must not be

held in slavery or servitude and must not be required to perform forced

labour;”

Section 257 of the Penal Code states it is an offence for a person to

compel another to labour.

4.2.4.4. Forced Recruitment

Section 7 of the Republic of the Fiji Military Forces Act (Cap. 81)

(“RFMF Act”) provides that the minimum age for recruitment for

enlistment into the army is 18 years, but the Commander has a

discretion to recruit a person under the age of 18 who has applied for

recruitment.

Recruitment is by application and is not forced or compulsory.

Section 18 of the RFMF Act states that the Minister may establish

cadet units (which shall not form part of the Forces) composed of

students between the age of 12 and 18 years. Further review and

consultation is recommended to determine the types of activities the

cadets carry out and whether any of the activities might be considered

harmful to the children’s health, safety or morals.

Regulation 40(1) of the Employment Relations (Administration)

Regulations 2008 also provides that a child must not be employed or

permitted to be employed in situations of direct hostilities.

Section 7 of the RFMF Act should be reviewed and it should be

considered whether the Commander’s discretion to recruit young

people under the age of 18 should be repealed.

109

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 19

51

4.2.4.5. Prostitution

Employment Relations Promulgation

Section 91(c) of the ERP follows the wording of Article 3(b) of ILO

Convention No. 182 and states that “the use, procuring or offering of a

child for prostitution …” as a form of child labour is prohibited.

Penal Code

Section 155: any person who unlawfully and carnally knows any girl

under the age of thirteen years is guilty of a felony;

Section 156(1)(a): any person who unlawfully and carnally knows or

attempts to have unlawful carnal knowledge of a girl between the age of

13 and 16 is guilty of a misdemeanour, provided that it is a sufficient

defence if the person charged had reasonable cause to believe and did

in fact believe that the girl was above the age of 16;

Section 157(1)(a) and 157(1)(b)

:

any person who procures or

attempts to procure any girl or woman under the age of 21 years (not

being a common prostitute or of known immoral character) to have an

“unlawful connection” with any other person or to become a prostitute

is guilty of a misdemeanour;

Section 158: any person who procures a woman or girl (not being a

common prostitute or a woman or girl of known immoral character) to

have unlawful carnal knowledge by threats, intimidation or false

pretences or false representations, or by giving a drug or substance in

order to stupefy or overpower the woman or girl is liable for a

misdemeanour;

Section 159: any person who owns, occupies, acts or assists in

managing or controlling premises and induces or knowingly suffers any

girl under the age of thirteen to be on the premises for the purpose of

being unlawfully and carnally known by any man is guilty of a felony. It

is a defence that the person being charged had reasonable cause to

believe and in fact did believe that the girl was over the age of sixteen;

Section 160: any person, who owns, occupies, acts or assists in

managing or controlling premises and induces or knowingly suffers any

girl between the age of thirteen and sixteen to be on the premises for

the purpose of being unlawfully and carnally known by any man is

guilty of a misdemeanour. It is a defence that the person being charged

had reasonable cause to believe and in fact did believe that the girl was

over the age of sixteen;

52

Section 161

:

any person who detains any woman or girl against her

will in premises with intent that she may be unlawfully and carnally

known by any man or a brothel is guilty of a misdemeanour;

Section 164: gives Magistrates the power, on an application from any

parent, relative guardian or any person acting bona fide in the interests

of any woman or girl, where there is reasonable cause to suspect that

such woman or girl is unlawfully detained for immoral purposes, to

issue a warrant to enter premises and remove such woman or girl;

Section 165

:

if in a trial of an offence under sections 149 to 164, the

court finds that the seduction, prostitution or unlawful detention of any

female under 21 years of age has been caused, encouraged or favoured

by a parent or guardian, the magistrate may the court may divest such

parent, guardian, master or mistress of all authority over her and

appoint a guardian until she has attained the age of 21 years;

Section 166: every male person who lives off the earnings of

prostitution or persistently solicits in any public place for immoral

purposes is guilty of a misdemeanour;

Section 167: every woman who lives off the earnings of prostitution or

exercises control, direction or influence over the movements of a

prostitute as to show that she is aiding, abetting or compelling her

prostitution is guilty of a misdemeanour;

Section 168: any common prostitute who loiters or solicits for

immoral purposes in any public place shall be guilty of an offence;

Section 169: if there is reason to suspect that any house or any part of

a house is used by a woman or girl for purposes of prostitution or that

any person residing in or frequenting the house is living on the

earnings of prostitution, or is controlling or influencing a prostitute, a

magistrate may issue a warrant authorizing the police to enter and

search the house and arrest such person;

Section 170: any person who keeps, manages, acts or assists in the

management of a brothel or a tenant, lessee or occupier of premises,

lessor, landlord or his/her agent who knowingly permits such premises

to be used as a brothel is guilty of an offence. The penalty is significant,

a fine not exceeding $100,000 and/or five years imprisonment;

Section 171: any person who conspires to induce a woman or girl by

false pretences or fraudulent means to permit a man to have unlawful

carnal knowledge of her is guilty of a felony.

53

Gaps in the Penal Code

The ILO Committee of Experts’ Direct Request (2006) on C182 stated

“in its previous comments, the Committee noted that, while the Penal

Code has extensive provisions prohibiting the procurement and use of

young girls and women for prostitution, the Convention prohibits the

use, procuring, or offering of both boys and girls under 18 years of age

for prostitution.”

110

The Review Team reiterates the ILO Committee of Experts’ comments

that the Penal Code does not adequately protect young males who are

procured or used in prostitution. The draft Crimes Bill should

incorporate gender neutral language.

Recommendations in Relation to the Penal Code

The Review Team recommends that the Penal Code is amended in line

with the FLRC’s Report on Sexual Offences Against Children. Details of

sections which should be considered in the review are attached at

Annexure 1, Schedule C.

It is also suggested that the recommendations contained in ILO’s “Time

Bound Programme Manual for Action Planning, 2003” are taken into

account including: -

 “States should create a set of specific offences to comprehensively

cover sexual exploitation of children and not leave them to be

dealt with by existing general offences;

111

 It should be an offence to: -

o buy the sexual services of a child under 18;

o recruit, induce or compel a child under 18 into commercial

sexual exploitation;

o participate, facilitate, advertise or allow the commercial

sexual exploitation of a child under 18; and

o receive money or other reward, favour or compensation for

the sexual exploitation of a child;”

112

 It should be an offence for an adult to have sexual intercourse

with a child below a certain age (at least the age of puberty or

possibly 16.)”

113

Further consultation should be carried out to

determine whether provisions with age thresholds should be

retained or whether a new provision should be introduced making

it an offence for an adult to have sexual intercourse with a child

below a certain age. The consultation should determine the

appropriate age threshold to be designated in the provision.

110

ILO Committee of Experts’ Direct Request (2006) on ILO Convention No. 182, page 1

111

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 20

112

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 21

113

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 22

54

Criminal Compensation

 ILO’s “Time Bound Programme Manual for Action Planning,

2003” recommends that Member States: -

o Empower criminal courts, following conviction, to order an

offender to pay the child full compensation for any personal

injury, damage or loss resulting from the offence;

o Empower both civil and criminal courts to direct welfare or

other appropriate agencies to make arrangements for the

protection, rehabilitation and welfare of the victims of worst

forms of child labour…;

o Consider establishing a government-funded compensation

scheme for victims in addition to any rehabilitation

programmes they are offered;

o Limitation periods should not begin to run against victims

until they have attained their majority or until they have fully

recovered from post-traumatic stress whichever happens

last.”

114

Consideration should be given to incorporating these

recommendations in the Crimes Bill.

Recommended amendments to the Penal Code, which relate to sexual

offences against children should include: -

 the use of gender neutral language to protect boys;

 the definition of “rape” should be widened;

 a “child” should be defined as a person under 18 years;

 a revision of the sections with varying age thresholds;

 consideration of whether certain sections, including sections 157

and 158 should be repealed;

 the introduction of a new provision of “indecent dealings against

children under the age of 18 years”;

 the introduction of new offences relating to offenders who: -

o buy the sexual services of a child under 18;

o recruit, induce or compel a child under 18 into commercial

sexual exploitation;

o participate, facilitate, advertise or allow the commercial

sexual exploitation of a child under 18; and

o receive money or other reward, favour or compensation for

the sexual exploitation of a child;

 an examination of the provisions requiring corroboration of

victim’s testimony in sexual offences;

115

114

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 26

115

State v A.V. (HAC192 of 2008) held that corroboration of unsworn evidence of children is

unconstitutional and is no longer required.

55

 a review of the Penal Code to frame offences “…in a way that does

not rely on the willingness of the victim to testify.”

116

 a revision and updating of terminology. The term “carnal

knowledge” should be replaced by the term “sexual intercourse”

117

and the term “defilement” should be replaced by “indecent

dealings”;

118

 references to corporal punishment should be removed;

 a new provision which targets the “user” or customer not the

exploited child should be considered;

 penalties should be reviewed, particularly where perpetrators are

in a position of trust over a child or buy or sell children for the

purposes of illegal sexual acts;

119

 consideration of whether sections 175(a) and 175(c) relating to

“carnal knowledge of a male person against the order of nature”

should be repealed;

120

 the defence that a person “had reasonable cause to believe and did

in fact believe that the girl was above the age of 16” in sections

156, 159 and 160 is removed;

 a new offence “…for any person in a position of authority or trust

in relation to a child (such as relatives, guardians, custodians,

teachers, doctors) who knows or suspects that any offence has

been, is being, or is about to be committed to fail to report it to an

officer of a law enforcement authority;”

121

 consideration of whether a new provision allowing criminal

compensation to a victim should be included.

Sex Tourism

Stakeholders, including the Department of Tourism, acknowledge the

existence of sex tourism in Fiji

122

but admit that the scale is

unconfirmed and there are currently no policies or programmes to

address the issue.

Recommendations

In order to combat child sex tourism in Fiji, it is recommended that: -

 Assistance should be given to draft a training manual on child

labour. The manual should be integrated with the Tourism Policy

116

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 16

117

FLRC’s Report on Sexual Offences Against Children, page 10

118

FLRC’s Report on Sexual Offences Against Children, page 11

119

FLRC’s Report on Sexual Offences Against Children, page 26

120

In the case of McCoskar v The State [2005] FJHC 500 the High Court held that “section 175(a) and (c) is

inconsistent with the Constitution and invalid to the extent that it criminalizes acts constituting private

consensual sexual conduct against the course of nature between adults.” If section 175 is repealed, male

child victims would be protected by the new provision of indecent dealings.

121

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 16

122

Interview with Acting Director in the Department of Tourism, Mr Manoa Malani on 17 March 2009

56

Training Course, which is currently provided by the Department

of Tourism. The manual should make reference to the applicable

legislative provisions, the CRC, ILO Conventions and child-

sensitive approaches for dealing with children who are involved in

sex tourism. The manual may be used for training inspectors and

officers in the Ministry of Labour in relation to their powers under

the ERP to combat the worst forms of child labour.

 there is further consultation with and co-operation between

border control authorities, including the Ministry of Defence,

Immigration Department, Fiji Police Force, Customs Authority

and Quarantine Department. The border control authorities have

a significant role to play in combating the worst forms of child

labour and should be involved in consultations relating to a

national child labour policy and the possible formation of a child

labour unit and a centralized child labour database;

 Assistance is provided, if requested and in consultation with

stakeholders, to review and utilise the hotel licensing process to

penalise hotel owners or managers who allow the commercial

sexual exploitation of children to take place on their premises.

 The Hotel and Guests Act (Cap. 195) provides that: -

o a hotel licence is required for a premises to be used as a

hotel;

123

o the Hotel Licensing Board has an absolute discretion to grant

a hotel licence

124

and such licence may be subject to

conditions which are imposed by the Board;

125

o “No licence shall be granted or renewed unless the Board is

satisfied that the hotel will not be used for illegal or immoral

purposes;

126

o If a hotel is being used for illegal or immoral purposes, the

hotel licence may be cancelled;

127



Under the provisions of the Hotel and Guests Act, the Hotel

Licensing Board could either cancel or refuse a renewal

application for a hotel licence where sex tourism offences against

children are being perpetrated in a hotel. Co-operation would be

required, between the tourism police, the Department of Tourism

and the Solicitor-General’s Office which currently oversees the

issue of hotel licences;



It is recommended that the Hotel Licensing Board’s criteria is

updated with the police checklist to include child labour content.

123

Section 4(1) of the Hotel and Guests Houses Act

124

Section 4(3) Hotels and Guests Houses Act

125

Section 4(4) of the Hotel and Guests Houses Act

126

Section 5 of the Hotel and Guests Houses Act

127

Section 6(1) of the Hotel and Guests Houses Act

57

4.2.4.6. Pornography

Section 91(c) of the ERP states that the use, procuring or offering of a

child for prostitution, for the production of pornography or for

pornographic performances is a prohibited form of child labour.

Section 62A of the Juveniles Act:

“(1) any person whether in public or in private, who:

a) records from, reproduces, places onto, views or accesses on or

from, media or records of pornographic activity directly or

indirectly involving juveniles, or person who look like juvenile

whether they are or not;

b) makes, participates in, observes, publishes, solicits, advertises,

distributes, traffics in, lets on hire, buys, sells, offers to sell, media

or records of pornographic activity directly or indirectly involving

juveniles, or persons who look like juvenile whether they are or

not commits a felony and is liable on conviction.”

Section 62A has significant penalties of a fine of up to F$25,000

and/or a term of imprisonment not exceeding 14 years for a first

offence and a fine of up to F$50,000 and/or life imprisonment for a

second or subsequent offence.

In the leading case of State v Mutch [1999] FJHC 149, the accused was

convicted on two counts of rape and on four counts of indecent assault

against children between the ages of nine and thirteen. The accused

escaped conviction on pornography charges because there was no

legislative provision relating to pornography offences.

The FLRC’s Annual Report for the Years 1997, 1998, 1999, 2000 and

2001 noted that: -

“In 1997, the ensuing discussions in the local media and in Parliament

following the Mutch (Paedophile) case highlighted two concerns:

(i) the fact that there was no law in existence in Fiji that provided

an offence for the taking and electronic distribution of

pornographic photographs or films of young persons; and

(ii) that there was a need for a complete overhaul of the existing

laws relating to the protection of children and to offences

against children.

58

To address point (i) as mentioned earlier, a remedial measure was put

in place resulting in the Juveniles (Amendment) Act No. 29 of 1997.

This amendment makes it an offence to take out and or distribute child

pornographic materials through any mediums such as the internet and

email.”

128

Section 62A of the Juveniles Act was inserted by the Juveniles

(Amendment) Act No. 29 of 1997.

The FLRC Report for Children: A Review of Laws Affecting Children,

(Report on the Review of the Juveniles Act and the Juvenile Justice

System), May 2000 (“FLRC’s Juvenile Report”) stated that: “It has

been recommended in the report on Sexual Offences Against Children

that s.62A of the Juveniles Act be repealed and included in the new

provision of Indecent Dealings in the Penal Code. The Commission

endorses this recommendation.”

129

Recommendation

In line with the FLRC’s Juvenile Report, the Review Team recommends

that section 62A of the Juveniles Act is repealed and a pornography

provision is included in the Penal Code (or Crimes Bill.) It is

recommended that section 62A is widened to include accessing and

viewing of pornography websites and “…the use of the Internet or other

media in all its forms and to cover advertisers and possessors.”

130

Consideration may also be given to new legislative provisions which

control viewing of child pornography on websites in internet cafes.

Consideration should be given to the Optional Protocol to the CRC on

the Sale of Children, Child Prostitution and Child Pornography, which

has been signed but not ratified by Fiji. Article 2 defines “child

pornography” as “any representation, by whatever means, of a child

engaged in real or simulated explicit sexual activities or any

representation of the sexual parts of a child for primarily sexual

purposes.”

4.2.4.7. Illicit and Drug-related Offences

Section 58 of the Juveniles Act: any person having the custody or care

of a child who causes, procures or allows him to beg is liable to

conviction.

128

FLRC’s Annual Report for the Years 1997, 1998, 1999, 2000 and 2001, pages 11 and 12

129

FLRC’s Juvenile Report, page 34

130

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 21

59

Section 91(b) of the ERP prohibits the “use, procuring or offering of a

child for illicit activities in particular for the production and trafficking

of drugs as defined in relevant international treaties.”

Section 8 of the Dangerous Drugs Act:

“Every person:

(a) growing opium poppy, Indian hemp or coca leaf, whether for

private use or otherwise; or

(b) found in possession of or sells or otherwise traffics or engages in the

trafficking of any substance to which this part applies

shall be guilty of an offence and upon conviction shall be sentenced to

imprisonment in accordance with this Act.

Provided that a sentence imposed under this section shall be

custodial.”

The majority of cases, for possession and selling marijuana are

prosecuted under section 8 of the Dangerous Drugs Act.

A “person” or a “child” is not defined in the Dangerous Drugs Act and

there is no minimum age for criminal responsibility in that Act. It is

likely that section 29 of the Juveniles Act would protect a child under

the age of twelve from prosecution for drug-related offences.

131

However, there is exposure for children above the age of 12 who are

procured or used by parents or caregivers to sell and traffick drugs.

Section 5 of the Illicit Drugs Control Act also provides that it is an

offence for a person to supply, possess and produce illicit drugs. The

penalties are severe, a fine of up to F$1,000,000 and/or life

imprisonment. A “person” is not defined in the Illicit Drugs Control Act

and it is likely that a child would be included within the definition of

“person.”

The Ministry of Education’s Draft Task Force Proposed Project

Submissions to ILO (“Submissions”) noted:

“The concern of the Ministry of Education in regards to children at risk

is becoming more imminent in the area of drug use and abuse at

schools.”

132

131

Section 29 of the Juveniles Act

132

The Ministry of Education’s Draft Task Force Proposed Project Submission to ILO, page 8

60

The statistics contained in the Submissions noted that from 1998-2003

a total of 118 marijuana offences were reported in primary schools in

Fiji. The Submissions noted that the highest number of cases (34 cases)

were from the Nadroga/Navosa Education District: -

“The above figures show that the Nadroga/Navosa Education District is

the most affected area in terms of drug use in primary schools…. Due to

the high cultivation of marijuana in this area, students in the above

schools are at high risk of coming in to contact and using the drug.”

133

Gaps in Drug Related Legislation

 The provisions and penalties contained in the Dangerous Drugs

Act and the Illicit Drugs Control Act, including mandatory

custodial sentences, would apply to children;

 There are no legislative provisions relating to the procuration or

use of children in drug related offences.

Recommendations in relation to Drug-Related Legislation

The Review Team endorses the recommendations of the FLRC’s

Juvenile Report which state that:

 “The Commission strongly supports the view that the sale and

supply of drugs to children under 18 years of age and using

children to traffic in drugs should be included in the section on

offences against children in the Juveniles Act. The penalty for

persons found guilty of this offence are those prescribed in the

Third Schedule of the Dangerous Drugs (Amendment) Decree

1990”

134

;

 The Commission recommends the incorporation of a new offence

which prohibits the selling and dealing in drugs with persons

under the age of 18 years in the Juveniles Act.

135

The Review Team recommends it is considered whether: -

 the Dangerous Drugs Act and the Illicit Drugs Control Act should

be amended to state that the provisions of both Acts do not apply

to children under the age of 18;

 in line with the FLRC’s Juvenile Report, new offences prohibiting

the selling and dealing in drugs with persons under the age of 18

and using or procuring children to manufacture, produce, sell,

deal in and traffick drugs and harmful or prohibited substances

should be incorporated in the Juveniles Act.

133

Ibid

134

FLRC’s Juvenile Report, page 33

135

FLRC’s Juvenile Report, page 34

61

4.2.5. Practical Difficulties

From the interviews carried out with officials from Ministries and

Departments, there was a common consensus that the following issues

need to be addressed in order to effectively tackle child labour in Fiji: -

 a lack of financial and human resources;

 further co-ordination and co-operation between Ministries and

Departments;

 collaboration with social partners, including NGO’s;

 Legislation needs to be updated;

 Community programmes are required to increase awareness of

child labour issues which includes the responsibilities of parents

and the value of education;

 training in a Fiji context, on child labour and CSEC issues is

required. Such training should include: -

o reference to the ILO Convention framework;

o the relevant legislative provisions;

o an indication of which Ministry, Department or Unit is

responsible for implementing such provisions;

o reference to other relevant Conventions and Protocols

including the CRC and Optional Protocol to the CRC on the

Sale of Children, Child Prostitution and Child Pornography

2000.

4.2.5.1. Ministry of Labour

The Review Team was advised that the Ministry of Labour: -

 is still in the process of implementing the ERP;

 had intended to establish a child labour unit by March 2009,

which would be responsible for monitoring, carrying out

inspections and prosecuting for breaches of Part 10 of the ERP.

Due to financial and human resource shortages, the child unit

labour had not been established as at the date of this report.

136

4.2.5.2. Ministry of Education

The Ministry of Education has policies in place which are consistent

with the promotion of free education for all by 2015, as a key measure

to combat child labour. These policies include: -

 Enterprise Education;

 Technical Vocational Education and Training;

 Drug and Substance Abuse in Schools.

136

Interview with Director Labour Compliance, Mr. S. Ramagimagi, Ministry of Labour on 18 March 2009

62

In implementing its policies and programmes, there are pressing issues

which must be addressed including: -

 the funding of free basic education;

 the allocation of resources to monitor and enforce compulsory

education;

 gaps in written policies on important issues including: -

o the adoption of a child protection policy by the Ministry of

Education. The policy should include guidelines for training

teachers on child protection issues so they are able to

identify child protection and child labour cases;

o a review of the Ministry of Education’s Behavioural

Management Policy to be consistent with the Ministry of

Education’s prohibition of corporal punishment in schools

and to promote positive discipline of children;

o enforcement of compulsory education;

o school fees.

4.2.5.3. Department of Social Welfare

The Department of Social Welfare’s role includes: -

 facilitating the payment of family and care and protection

allowances;

 making recommendations in the best interests of children in

adoption and family court proceedings;

 the care and protection of children and juveniles;

 providing counseling services to children and young people as

part of family court and care and protection proceedings.

ILO Committee of Experts’ Direct Request (2006) on C182 noted:

“In its previous comments, the Committee noted that the use of

children in prostitution, mainly in sex tourism, appears to be a serious

problem in the country. The Committee also noted that the Committee

on the Rights of the Child, in its Concluding Observations

(CRC/C/15/Add.89, 24 June 1998, paragraphs 17 and 25), expressed

concern at the insufficient awareness of and lack of information on

child abuse, including sexual abuse, and the insufficient legal

protection measures and appropriate resources. It also expressed

concern at the insufficient rehabilitation measures for ill-treated,

sexually abused and economically exploited children as well as their

limited access to the justice system. The Committee notes that the

report of the National Workshop on the Implementation of Concluding

Observations of the Committee on the Rights of the Child recommends

that the Government ensure the provision of counselling to all child

victims of abuse for their recovery and rehabilitation, including the

availability of immediate counselling for victims by employing child

63

psychologists to work with the police and the Department of Public

Prosecution. The Committee requests the Government to provide

information on the time-bound measures taken to assist in the removal

of children from the worst forms of child labour such as homeless

children working in the area of sex tourism, and what initiatives are

taken to ensure their rehabilitation and integration in response to the

recommendation made at the national workshop.”

137

Indications from the Department of Social Welfare (“Department”)

regarding the practical difficulties they face include: -

 Concerns relating to the minimum qualifications, training and

monitoring of social workers. Currently, the minimum

qualification for social workers is Form 7 level. It is recommended

that a tertiary qualification is required as the minimum

qualification for social workers;

 A lack of ongoing training for social workers, including training

on child protection and child labour issues and on the applicable

legislative provisions which govern the Department;

 The Department’s ability to provide unbiased counseling services

by qualified professionals. The Department indicated that at times

there are conflicts of interest in counseling families and protecting

children’s interests and that it is working towards outsourcing

counseling services. If counseling services are outsourced, there

need to be minimum standards and qualifications for professional

counselors and monitoring of the standards of counseling;

 A lack of direction and national base line for the Department.

138

Recommendations in relation to the Department of Social

Welfare

The Department of Social Welfare would benefit from technical

assistance: -

 to develop and draft further policies, if necessary;

 to carry out projects to review the Juveniles Act, Adoption of

Infants Act and the Crimes Bill. This may include assistance to: -

o draft submissions to Cabinet in relation to recommended

amendments to legislation;

o co-ordinate consultation with stakeholders and public

submissions in relation to the Crimes Bill and Juveniles Act

if necessary. The Review Team notes that consultation was

carried out over ten years ago when the Fiji Law Reform

Commission reviewed the laws relating to sexual offences

137

ILO Committee of Experts’ Direct Request (2006) on C182, page 4

138

Interview with Ms. Ilisapeci Rokotunidau, Mrs. Ana Delana and Ms. Arieta Tagivetaua at the

Department of Social Welfare on 13 March 2009

64

against children. Fresh consultation on draft legislation is

recommended;

o fund a legislative drafter to draft new provisions or amend

the Juveniles Act, Adoption of Infants Act and Crimes Bill;.

 to make recommendations on the structure and resources of the

Department, the services provided by the Department, and a

national baseline for the Department;

 and advice on the resources required to implement policies and

programmes to proactively remove children from the streets,

place them in safe homes and rehabilitate children;

 to review the adequacy of the family assistance and care and

protection allowances provided for in the Social Justice Act 2001.

It is recommended that “…statutory child welfare schemes

provide physical, psychological and social recovery for victims of

the worst forms of child labour.”

139

The family allowance ranges

from F$60-$100 per month and the common consensus is that it

is not enough to cover school-related fees and expenses in

addition to living expenses. The object of the allowance is to

supplement rather than being the sole means of survival;

140

 on a review of counseling services in consultation with

stakeholders, to consider whether it is appropriate to outsource

counseling services, recommended minimum qualifications for

social workers and monitoring of standards of social workers.

It is also recommended that pursuant to Section 77 of the Juveniles

Act, the Minister for Women, Social Welfare and Poverty appoints an

Advisory Council. The Advisory Council could advise and make

representations to the Minister on matters relating to the exercise of

the Minister’s powers and duties, including the care and protection of

children and young people.

4.2.5.4. Police

The Juvenile Bureau and Child Abuse and Sexual Offences Unit of the

Fiji Police indicated that the practical difficulties they face include: -

 a severe shortage of resources, including a lack of transport,

operating costs and information technology equipment. The Child

Abuse and Sexual Offences Unit in the Fiji Police Force advised

that they were unable to access alerts which are sent by the

Australian police detailing movements of convicted sex offenders

who are traveling to Fiji because they have no internet or email

access;

141

139

ILO’s “Time Bound Programme Manual for Action Planning, 2003,” page 30

140

Interview with Ms. Ilisapeci Rokotunidau, Mrs. Ana Delana and Ms. Arieta Tagivetaua at the

Department of Social Welfare on 13 March 2009

141

Interview with Sergeant Moi Moi and Inspector Linieta in the Child Abuse and Sexual Offences Unit of

the Fiji Police Force on 8 April 2009

65

 Insufficient powers under the police’s current policies to

investigate and prosecute unless a complaint is made;

 A lack of implementation of child-friendly court procedures. The

Child Abuse and Sexual Offences Unit indicated that their biggest

challenge is failing to obtain convictions because support services

for child victims, including effective counseling and court-friendly

procedures are not consistently available.

142

Recommendations in relation to the Police

The Review Team recommends: -

 Further consultation to address resource issues. The Juvenile

Bureau indicated with further resources, it could play a greater

role in the monitoring of truants, enforcement of compulsory

education and the rehabilitation of homeless children;

 Assistance is provided to review the Force Standing Orders No.

311 (“Police Standing Orders”), which govern police practice

and procedures and the Juveniles Act. The FLRC’s Juvenile

Report recommended that the Police Standing Orders, which are

an internal document, are incorporated into the Juveniles Act;

143

 A review of the policies and practices within the Police Force in

relation to sexual offences against children;

 assistance to include content on child labour and ILO Convention

No. 138 and 182 in the police training manual and training

materials at the Policy Academy;

 Consideration of whether reactivating the following protocols (or

drafting new protocols) between the relevant Ministries and

Departments would help increase co-operation: -

o Protocol between the Fiji Police and the Department of

Social Welfare, dated November 2002;

o Protocol between the Police and the Ministry of Education

(lapsed in May 2000);

o Protocol between the Police and Ministry of Health dated 3

May 1998.

 Any inter-agency guidelines should specifically refer to child

protection issues and outline how child protection and child

labour cases should be handled.

 amendments to the Juveniles Act as outlined at Annexure 1,

Schedule D are considered;

 The Fiji Government needs to urgently address the provision of

resources for counseling services and rehabilitation for children

and young people. The FLRC’s Report on Sexual Offences Against

Children recommended that resources be made available for

142

Ibid

143

FLRC’s Juvenile Report, page 14

66

counseling of both victims and accused persons and that

treatment centres with trained counselors be established.

144

4.2.6. Specific Issues

4.2.6.1. Amendments to the Juveniles Act

The Review Team recommends that the Juveniles Act is amended in

line with the recommendations made in the FLRC’s Juvenile Report

and the Beattie Report, to: -

 incorporate child-friendly practices and procedure in the

Juveniles court, including the use of screens for child

complainants giving evidence;

 provide support for children and young people in hearings;

 amend the definition of a juvenile “in need of care, protection or

control” in section 40 to include situations where a juvenile is ill-

treated, abused or seriously deprived or where a juvenile has

committed offences so as to give serious concern for the well-

being of the juvenile;

145

 include family group conferences and a counseling provision in

section 41(4);

146

 include drug related offences in relation to children and young

people;

147

 amend section 19 to include reference to the principle of the best

interests of the child.

148

It is recommended that a review of the Juveniles Act

149

considers

recommendations contained in ILO’s “Time Bound Programme

Manual for Action Planning, 2003. In particular, provisions relating to

“rapid response” interventions should be included as follows:-

 orders for emergency protection;

 orders for maintenance, support and education; and

 orders that determine who is to have care and parental

responsibility, or guardianship for a child;

 Courts should be conferred with jurisdiction to make a wide range

of orders to remove, protect and make provision for children at

risk or in need;

 “The inherent jurisdiction of a court to protect children from

harm should be given statutory confirmation and made available

144

FLRC’s Report on Sexual Offences Against Children, page 5

145

FLRC’s Juvenile Report, page 23

146

FLRC’s Juvenile Report, page 30

147

FLRC’s Juvenile Report, page 33

148

FLRC’s Juvenile Report, page 49

149

In particular, Parts IX- Juveniles in need of care, protection or control and Part X- Care Orders

67

to any concerned person or organization in emergency

situations.”

150

It is recommended that the Director of Social Welfare is the first line of

response in relation to emergency protection.

Emergency procedures are recommended in cases where children are

removed from the worst forms of child labour such as prostitution.

It is also recommended that Section 57(7) of the Juveniles Act is

repealed. Section 57(7) states that a parent, teacher or other person

having lawful control or charge of a juvenile may administer

reasonable punishment to him.

4.2.6.2. Child Sensitive Court Procedures

The members of the Fiji Police Force that were interviewed indicated

there are inadequate legal provisions and procedures to protect

children in court.

Recommendation

It is recommended that the Juveniles Act are reviewed and amended

and that the Crimes Bill incorporates child sensitive court procedures.

ILO’s “Time Bound Programme Manual for Action Planning, 2003”,

recommends the following procedures are incorporated into

legislation:-

 Member States should “ensure that the statutory and

administrative measures exist for the provision of assistance and

information about court proceedings to victims of the worst forms

of child labour and their families…;”

151

 “Child-sensitive procedures for investigating and hearing evidence

should therefore be introduced and provision made for

maintaining privacy and confidentiality during court

proceedings;”

152

 “…measures and procedures should be adopted to protect…”

children and other witnesses;

153

 “Unless there is clear evidence to the contrary, the burden of

proving that a victim had attained the age of 18 at the date of the

commission of the offence could be placed on the accused;”

154

150

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 28

151

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 25

152

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 26

153

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 26

154

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 27

68

 “Special measures should be introduced to assist the child in

giving evidence in any of the following ways: -

o their examination through an intermediary;

o giving of evidence in private;

o giving evidence in a setting that is appropriate to their age or

maturity;

o use of video recorded evidence-in-chief or cross-

examination; and

o giving of evidence behind screens or by video link.”

155

 Public exclusion procedures should be introduced for court

proceedings…;

 Cases should be heard without delay and court-listing procedures

should provide for them to be heard as a matter of urgency and

priority.”

156

It is also essential that rapid response interventions are accompanied

by adequate support services for children removed from the worst

forms of child labour. It is recommended that court and police

procedures and the Juveniles Act are reviewed to allow a support

person to attend hearings with children and that effective counseling is

provided to children.

4.2.6.3. Child Labour Unit

One of the most significant gaps in the application of ILO Convention

No. 138 and No. 182 in Fiji is the lack of enforcement of the provisions

of the Conventions. There was no evidence of measures or programmes

to eliminate or remove children from the worst forms of child labour

157

or to provide access to free basic education.

ILO Recommendation No. 190 encourages Member States to ensure

the authorities who implement national policies and programmes co-

operate with each other and co-ordinate their activities.

A recurring comment from the parties interviewed is that there is a lack

of co-ordination and co-operation between stakeholders. The

Department of Social Welfare advised that referrals are rarely received

from schools or the Ministry of Education in relation to abused

children.

158

There were no indications of any monitoring or

enforcement of compulsory education by the Ministry of Education.

155

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 27

156

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 27

157

As required by Article 7 of ILO Convention No. 182

158

Interview with Ms Ilisapeci Rokotunidau, Mrs Ana Delana and Ms Arieta Tagivetaua at the Department

of Social Welfare on 13 March 2009

69

Recommendation

ILO’s “Time Bound Programme Manual for Action Planning, 2003”

suggests: -

 a “dedicated child protection unit with expertise in child labour

abuse could be established”;

159

 “…ongoing training programmes on eliminating the worst forms

of child labour for all professional groups working for and with

children, including judges, lawyers, law enforcement officials, civil

servants, local government officials, teachers, doctors and other

health personnel”;

 the possibility of specialist judges and magistrates, prosecutors

and police who are trained in child labour and child protection

issues;

160

 consideration of education inspectors to follow up on

absenteeism;

 in terms of international cooperation and assistance, “flexible

arrangements should be made for exchanging information,

detecting offences, extraditing and prosecuting offenders,

registering and seizing the property of perpetrators and

recognizing and enforcing foreign judgments”;

161

 “…there may be room to consider a central coordinating and

monitoring agency or body with adequate powers and backed with

resources to oversee the government’s entire policy and

programmes for eliminating the worst forms of child labour.”

162

 “If the proposed child labour authority is to be endowed also with

the power to investigate and make determinations on individual

complaints, it becomes even more important that it is given a

sufficiently independent status.”

163

Although the Ministry of Labour is considering establishing a child

labour unit, the unit should be the co-ordinating agency for all types of

child labour including “common crimes.” The unit should be able to

deal with a range of cases including hazardous work, labour in the

informal sector and CSEC cases.

Careful consideration should be given to whether the child labour unit

should be formed as part of an existing Ministry or whether it should

be a stand alone unit with expertise from relevant fields. It is essential

159

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 41

160

Ibid

161

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 43, which goes on to say

“Indeed, it is difficult to envisage effective implementation of such wide ranging and multi-agency remit

in the absence of a central coordinating body or system.”

162

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 44

163

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 45

70

that the child labour unit is staffed with qualified and experienced

personnel and that adequate resources are committed.

4.2.6.4. Centralised Child Labour Database

Recommendation

It is recommended that a centralized child labour database is

established, in order to increase access to information. Fiji’s legislation,

including the ERP, does not contain provisions which would prevent

the sharing of such information.

Alerts, including details of convicted sex offenders traveling to Fiji

from the Australian Federal police, could be instantly accessed by the

relevant Ministries, Departments and Units via a centralized database.

This would include the Customs Authority, Immigration Department,

the Fiji Police Force (including the Tourism Police and the Child Abuse

and Sexual Offences Unit) and the Department of Tourism.

Information technology assistance would be required to establish a

centralized child labour database.

4.2.6.5. Role of Workers’ and Employer’s Organisations

ILO’s “Time Bound Programme Manual for Action Planning, 2003”

noted that: -

”One of the most effective ways of preventing the abuse of children at

work has been through collective bargain agreements between

employers and unions. The strengthening of workers and trade union

rights is an important step in the elimination of the worst forms of

child labour.”

164

Unions can help protect working children by: -

 encouraging children and young people to join unions and enjoy

the protection of collective bargaining rights. Section 94 of the

ERP provides that a child over the age of 15 has the right to join a

trade union and to vote in trade union elections;

 ensuring that children receive entitlements including minimum

wages, social security payments and paid holidays;

 ensuring that registers of children are properly maintained and

checked;

 developing action plans to combat child labour as part of

corporate social responsibility.

164

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 23

71

Consideration should be given by employers’ organizations on ways

to:-

 monitor members’ compliance with child labour laws;

 adopt policies and guidelines for members on child labour

infringements;

 deal with breaches of child labour laws by members.

Workers and employer’s organizations have important roles in

consulting with government to: -

 determine the list of hazardous work;

 determine the list of light work;

 report to ILO on the status of the application of ILO Convention

No. 138 and No. 182;

 carry out training and awareness campaigns.

Recommendation

Consideration should be given to an amendment to the ERP to provide

that “…enforceable collective bargaining agreements contain clauses

prohibiting the employment of children below the applicable minimum

age for employment and protecting workers under 18 from hazardous

work.”

165

4.2.7. Enforcement

ILO Convention No. 138

166

and No. 182

167

provide that necessary

measures must be taken to ensure the effective enforcement of the

provisions of both Conventions. Legislative provisions to enforce ILO

Convention No. 138 and No. 182 include the provision and application

of appropriate penalties and sanctions.

Article 7 of ILO Convention No. 182 which requires the effective

implementation and enforcement of penal sanctions and time bound

measures to remove and rehabilitate children from the worst forms of

child labour has not been applied in Fiji.

4.2.7.1. Enforcement of Labour Laws

Sanctions

The ERP provides sanctions for the employment of children.

165

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 24

166

Article 9(1) of ILO Convention No. 138

167

Article 7(1) of ILO Convention No. 182

72

Section 91: it is an offence for a person to engage in a prohibited form

of child labour;

Section 93: it is an offence for a person to employ a child under the

age of 15 years in any capacity other than in accordance with

subsection (2);

Section 95(2): it is an offence to employ a child in a mine or in a

workplace or employment which has been declared hazardous by the

Minister for Labour.

Penalties

The penalty for a breach of the provisions of Part 10 of the ERP relating

to children

168

is a fine not exceeding F$10,000 and/or imprisonment

not exceeding 2 years for an individual and a fine not exceeding

F$50,000 for a company.

169

The penalty for a breach of any regulations

made under the ERP is a fine of up to F$20,000 and/or a term of

imprisonment.

170

The penalties for a breach of the Health and Safety at Work Act are also

significant. The penalty for a breach of section 9 of the HSWA

171

is a

fine of up to $100,000 for a company and a fine of up to $10,000 for

an individual.

Although the ERP and HSWA do have significant penalties, proactive

investigation and ongoing prosecution of employers is required.

Inspectors’ Powers

Section 19 of the ERP provides that labour inspection have powers

to:-

 enter, inspect and examine workplaces;

 require employers to produce any worker or any documents or

records (including registers of children);

 interview employers and workers;

168

Section 256of ERP lays down penalty for offences where no particular penalty is provided. The

penalties in section 256 would be the penalties for breaches of: -

s.91 ERP: prohibition of worst forms of child labour

s.93 ERP: employment of children under 15 years

s.95 ERP: restrictions on employment of children

s.96 ERP: children employed against the wishes of parents/guardians

s.97 ERP: hours of work for children

s.99 ERP: employers of children to keep a register.

169

Section256 ERP

170

Section 264(3) of the ERP

171

Section 9 of the HSWA provides that every employer must ensure the health and safety at work of all

his or her workers. Section 9 lists particular duties of the employer, for example to provide and

maintain safe plant and systems of work.

73

 issue a demand notice or fixed penalty notice requiring

compliance with a provision.

4.2.7.2. Enforcement of Compulsory Education

The Rotuma (Primary School) Regulations provide that it is the duty of

the parent or guardian to ensure that his/her child attends school

regularly subject to certain exceptions. The Regulations provide that a

parent or guardian may be convicted if he/she does not ensure that

his/her child attends school regularly.

172

The Education Legislation provides that primarily, it is the duty of a

parent or guardian to ensure his/her child regularly attends school and

receives a suitable and relevant education unless a child has “special

circumstances.”

173

District Education Officers, acting as School Attendance Officers are

required to check that compulsory education is being enforced and are

expected to encourage and counsel parents and absent students.

174

District Education Officers have powers to enter any house, village or

place to make enquiries as to children who are residing or working.

175

The Review Team was advised that in practice, and given resource

shortages, District Education Officers do not perform this role. The

responsibility for enforcing compulsory schooling lies with individual

teachers and schools.

176

The Secretary of the Fiji Teacher’s Union, Mr Agni Deo Singh, noted

that it is unlikely the District Education Officers have the capacity to

check and follow up on children who are absent from school.

177

The

difficulty of monitoring of children who have dropped out or are absent

from school is exacerbated by remoteness and transport issues, a

shortage of operating costs and lack of capacity in schools to monitor.

The CRC also recognizes the right of the child to education, which

includes making primary education compulsory and available free to

all and taking measures to encourage regular attendance at schools and

to reduce the drop-out rates.

178

172

Regulation 4(2) of the Rotuma (Primary School) Regulations

173

Regulation 4 of the Compulsory Education Regulations, 1997 L.N 23. “Special circumstances” include:

(a) there is no school within walking distance;

(b) other arrangements are made which are deemed by the Minister to be suitable and efficient;

(c) the child has completed the required levels of primary education;

(d) the child is preventing from attending school by sickness or any other unavoidable cause

174

Regulation 2 and Regulation 7, Compulsory Education Regulations, 1997

175

Regulation 7, Compulsory Education Regulations, 1997

176

Interview with Mrs. Viniana Kunabuli, Ministry of Education on 11 March 2009

177

Interview with Mr. Agni Deo Singh, Secretary for Fiji Teachers Union on 17 March 2009

178

Article 28 of the Convention on the Rights of the Child

74

Practical Difficulties with Enforcement of Compulsory

Education

Issues that need to be addressed in order to enable the enforcement of

compulsory education include: -

 the inability of families to afford school fees and school-related

expenses;

 schools’ policies of charging fees and refusing admission or

penalizing children for non payment of fees.

179

“Most schools are

owned by the communities and other organizations such as

religious organizations

180

and the general consensus is that even

in non-Government schools, fees are usually charged. “The

Ministry seems unable to prevent schools, which are private

bodies from charging whatever fees they want.”

181

 Legislative provisions, including Section 25 of the Education Act

which provide that the Minister can prescribe school fees which

are payable in Government schools.

182

The Secretary of the Fiji Teacher’s Union’s view is that compulsory

schooling cannot be enforced unless schooling is free.

183

A co-ordinated approach is required to enforce the completion of

compulsory education up to a consistent age through out Fiji.

Currently, the responsibility for enforcement of compulsory education

lies with the schools and individual teachers. Increased assistance and

co-operation between the police, the Ministry of Labour, the Ministry

of Education, the Department of Social Welfare (where applicable) and

social partners (including NGO’s) is required.

Gaps in the Ministry of Education’s policies need to be identified,

including a clear policy on child protection.

Recommended Amendments to Education Legislation

It is recommended that a review of the Education Legislation

considers:-

179

Save the Children’s Report: Keeping Children in School, 1998: “The Ministry provides teach salaries and

a per capita grant for each student but many school management boards maintain their schools cannot

function without other student fees,” Page 8.

180

“Education for All” Mid Decade Assessment Report 2008 from the Ministry of Education, page 30

181

Save the Children’s Report: Keeping Children in School, 1998, page 8.

182

Section 25 of the Education Act provides, inter alia, that: -

 prescribed fees, including fees for books, board or medical attention shall be payable in

Government schools;

 any pupil with fee arrears may be refused admission or re-admission;

 proceedings may be instituted against payments for non payment of school fees

183

Interview with Mr. Agni Deo Singh, Secretary for Fiji Teachers Union on 17 March 2009

75

 Section 25 of the Education Act and the First Schedule of the

Education Act which allows a parent to be prosecuted for non

payment of fees;

 the repeal of all provisions which relate to school fees;

 Regulation 4(1)(a) of the Compulsory Education Regulations

184

which states that a parent’s duty to enforce compulsory schooling

of his/her child may be discharged if certain conditions apply;

 whether legislative provisions should be enacted to hold parents

responsible for enforcing compulsory schooling and liable for

prosecution for not making an effort to ensure their child attends

school.

The review of the Education Legislation should take into account the

recommendations in ILO’s “Time Bound Programme Manual for

Action Planning, 2003”, as follows: -

“National laws should target the following key aims: -

 the right to free primary education should be embodied in the

statutory law…;

 there should exist a corresponding duty on the central or district

authority to provide sufficient schools in number, character and

equipment for that purpose;

 financial assistance should be provided to poor families with

children of school going age;

 the duty to provide education should be made enforceable by the

courts;

 parents’ responsibility to send their children to school should be

clearly declared, and penalties for not discharging this

responsibility could be considered under certain circumstances;

 a system of monitoring children’s entry, attendance, and

completion of school must be designed and effected, with a

mechanism for following up cases of children having dropped out

prematurely as many of these may be entering or returning to

work;

 consideration could be given to a prohibition of employing

children or letting them work in such a way that hinders their

compulsory education.”

185

4.2.7.3. Unconditional Worst Forms of Child Labour

Enforcement of the Penal Code and Juveniles Act

ILO Committee of Experts’ Direct Request (2006) on C182 noted big

gaps in the enforcement of criminal laws relating to the worst forms of

184

Regulation 4(1)(a)(b) Compulsory Education Regulations, 1997 L.N 23

185

ILO’s “Time Bound Programme Manual for Action Planning, 2003,” Page 29

76

child labour, insufficient legal protection measures and a lack of

appropriate resources.

186

There is a lack of enforcement of the provisions of Fiji’s Penal Code and

Juveniles Act which is required by ILO Convention No. 182.

The Juveniles Act provides that it is an offence: -

Section 57: for a person who has custody, charge or care of a juvenile

to assault, ill-treat, neglect, abandon or expose such juvenile to

unnecessary suffering or injury to health;

Section 58: for a parent or caregiver to cause or procure a child to

beg;

Section 59: to give intoxicating or spirituous liquor to a child;

Section 60: to sell intoxicating liquor to persons under the age of 18;

Section 10 of the Tobacco Control Act 1998 provides that it is an

offence to sell or supply tobacco to a person under the age of 18;

Section 61 of the Liquor Act 2006 provided that it was an offence to

sell or supply liquor to any person under the age of 21 years. The

Liquor Act was recently amended to decrease the minimum drinking

age at 18 years.

187

Section 12 of the Tobacco Control Act 1998 prohibits smoking in

certain public places. Consideration may be given to a new or amended

provision under the Tobacco Control Act or the Juveniles Act which

creates an offence for persons under the age of 18 to smoke in public

places.

The Fiji Police Force is responsible for enforcing the provisions of the

Penal Code and Juveniles Act. The practical difficulties they face,

including a shortage of resources and operating costs need to be

addressed before ILO Convention No. 182 can be fully enforced.

There are few reported cases relating to the prosecution of a worst form

of child labour. The Fiji Police Force has advised that there is ongoing

186

ILO Committee of Experts’ Direct Request (2006) on C182: “The Committee also noted that the

Committee on the Rights of the Child, in its Concluding Observations (CRC/C/15/Add.89, 24 June

1998, paragraphs 17 and 25), expressed concern at the insufficient awareness of and lack of information

on child abuse, including sexual abuse, and the insufficient legal protection measures and appropriate

resources,” page 4.

187

Decree No. 13/2009 decreased the minimum drinking age from 21 to 18 years

77

prosecution of CSEC cases,

188

but there are no programmes or co-

ordinated measures in place to tackle child labour or remove children

from the worst forms of child labour. Active investigation and ongoing

prosecution by the police is required, particularly in cases of CSEC and

sex tourism.

Penalties

The Penal Code and Juveniles Act have penalties of varying severity.

For example, the penalties for: -

 Unlawfully and carnally knowing a girl under the age of 13 is life

imprisonment, with or without corporal punishment;

189

 Keeping and managing a brothel is a fine not exceeding

F$100,000 and/or 5 years imprisonment;

190

 Pornography is a fine of up to F$25,000 and/or a term of

imprisonment not exceeding 14 years for a first offence and a fine

of up to F$50,000 and/or life imprisonment for a second or

subsequent offence.

191

ILO’s “Time Bound Programme Manual for Action Planning, 2003”

noted that:

 “The penalties for offending should be severe enough to have a

deterrent affect and minimum mandatory sentences should be

considered;

• The younger age of a child victim should be regarded as an

aggravating feature and attract stiffer penalties.

• Courts should be empowered to confiscate and forfeit the

proceeds of offences.

• There should be established a Register containing the names and

details of convicted offenders, which may be consulted by

appropriate government agencies.”

192

Recommendation

It is recommended that the penalties contained in the Crimes Bill and

Juveniles Act are reviewed in consultation with key stakeholders and

amended where necessary.

188

Interview with Sergeant Moi Moi and Inspector Linieta in the Child Abuse and Sexual Offences Unit of

the Fiji Police Force on 8 April 2009. The Review Team was not provided with confidential case details,

in the interests of protecting the exploited children.

189

Section 155 of the Penal Code

190

Section 170 of the Penal Code

191

Section 62A of the Juveniles Act

192

ILO’s “Time Bound Programme Manual for Action Planning, 2003,” Page 17

78

5. SUMMARY OF RECOMMENDATIONS

5.1. Policy

In order to comply with ILO Convention No. 138, Fiji must formulate a

national policy on child labour.

There is currently a child labour subcommittee (“Subcommittee”) of

the NCCC.

Consideration should be given to: -

 whether a new committee on child labour policy should be

formulated;

 whether the Subcommittee should be primarily responsible for

formulating a national policy on child labour;

 the current role of the NCCC and whether its mandate should be

widened to include the implementation of ILO Convention No.

138 and No. 182; and

 the co-ordination of existing programmes to address child

protection issues, national child protection work plans and

frameworks.

Wide consultation with stakeholders from relevant Ministries and

Departments who are not members of the child labour subcommittee is

essential. Stakeholders who should be involved include: -

 Ministry of Labour;

 Ministry of Education;

 Department of Social Welfare;

 Fiji Police Force;

 Ministry of Health;

 Attorney General’s Chambers;

 Director of Public Prosecutions;

 Department of Immigration;

 Customs Authority;

 Department of Tourism;

 Bureau of Statistics;

 Representatives of Employers’ and Workers’ organizations;

 NGO’s and other social partners;

 Ministry of Foreign Affairs.

5.2. Hazardous Work

The ERP provides the legislative framework for determining hazardous

work for children under the age of 18. A list of hazardous work needs to

79

be determined, in consultation with the Health and Safety Board,

employers and workers’ representatives and other key stakeholders.

5.3. Light Work

The ERP provides that light work is acceptable for 13 to 15 year

children in certain circumstances, provided it is not harmful to their

health or development and does not prejudice their attendance in

schools or vocational or training programmes. A list of the types of

work that constitute “light work” for 13 to 15 year olds needs to be

determined, in consultation with key stakeholders.

5.4. Artistic Performances

Fiji’s legislation is silent on artistic performances by children. The

general consensus is that artistic or cultural performances by children

are not on a large commercial scale and do not affect children’s

education. However, further research and tripartite consultation is

recommended to determine the scale of children under the age of 18

who are involved in cultural performances, particularly in the tourism

industry and the need for regulation of such activities.

It is recommended that a provision is included in the ERP relating to

artistic performances. The provision could either allow an individual

permit to be granted for children to participate in artistic or cultural

performances, or establish an equivalent system.

5.5. Education

Fiji’s Education Legislation is inconsistent with the ERP which sets the

minimum working age at 15 years. The minimum age for completing

compulsory education in the Education Legislation varies from 12-15

years, depending on different districts through out Fiji. The Education

Legislation should be amended to increase the age for completion of

compulsory education consistently to the age of 15 through out Fiji.

A review of the Education Legislation should consider: -

 the repeal of provisions which state that school fees can be

prescribed and proceedings instituted against parents for non

payment;

 a consideration of the regulations which state a parent’s duty to

enforce compulsory schooling may be discharged if certain

conditions apply;

 the introduction of a provision to hold parents liable for

prosecution for not ensuring their child attends school.

80

A full list of recommended amendments to the Education Legislation is

outlined at Annexure 1, Schedule B.

A review of the Ministry of Education’s policies, programmes and

practices is required. There are complex and serious issues that need to

be addressed before compulsory education can be enforced. These

include the funding of education and resource issues.

5.6. Minimum Age for Employment in Industry Specific

Legislation

It is recommended that the Mining Act and Quarries Regulations are

amended to increase the minimum age for such work to 18 years, as it

constitutes hazardous work.

The tripartite consultation to determine the types of hazardous work

should consider whether work on a vessel is hazardous work for

children. If it is, the Marine Act should be amended to increase the

minimum working age to 18 years.

5.7. Harmonisation of definition of “child” in legislation

Various pieces of legislation define the age of a “child” differently. It is

recommended that the definition of a “child” in the Interpretation Act

is amended to mean a person under the age of 18 years. The effect of an

amendment to Section 2 of the Interpretation Act is that in every

written law and in public documents enacted, a child will be universally

defined as a person under the age of 18.

For uniformity, consideration may be given to amending legislation to

define a child consistently as a person under the age of 18 years. Such

legislation would include: -

 The Factories Act which defines a “child as a person under the age

of 15 years and a “young person” under the age of 18. It is

recommended that regulations are passed under the HSWA in

order to repeal the Factories Act;

 The Juveniles Act. A commencement date for the Prisons and

Corrections Act No. 2 of 2006 should be gazetted to increase the

definition of a ”juvenile” in the Juveniles Act from 17 to 18 years;

 Section 12 of the Marriage Act which should be amended to

increase the age of consent for a female from 16 to 18 years;

 The Penal Code. The age thresholds in the Penal Code should be

amended so that age thresholds below 18 are repealed and are

replaced with new offences against children under the age of 18

81

years. Some sections

193

in the Penal Code should reduce the age

threshold from 21 to 18 years.

5.8. Worst Forms of Child Labour

Recommended amendments to the Penal Code (to be known as the

Crimes Bill) and Juveniles Act are outlined at Annexure 1, Schedules C

and D.

Consideration should be given to whether amended or new provisions

should be included in either the Crimes Bill or the Juveniles Act.

For example, it is recommended that the pornography provisions are

moved from the Juveniles Act to the Crimes Bill.

It is also recommended that provisions relating to child-friendly court

procedures are incorporated in both the Crimes Bill and the Juveniles

Act.

5.8.1. Amendments to the Penal Code

A review and amendment of the Penal Code is urgently required. The

Review Team understands that a draft Crimes Bill has been drafted.

It is recommended that a review of the draft Crimes Bill should

consider: -

 a review of the age thresholds to be consistently set at 18 years;

 the use of gender neutral language to protect boys;

 the definition of “rape” should be widened;

 the introduction of a new provision of “indecent dealings against

children under the age of 18 years”;

 the introduction of new provisions relating to the CSEC of

children under the age of 18;

 a revision and updating of terminology. Archaic terms such as

“carnal knowledge” and “defilement” should be updated;

 references to corporal punishment should be removed;

 a new pornography provision should be included;

 criminal compensation for victims should be considered;

 a revision of the offences in a way that does not rely on the

willingness of the victim to testify;

 a new provision which targets the user or customer not the

exploited child;

 penalties should be revised.

193

For example, section 157 relating to procuration

82

5.8.2. Amendment to Juveniles Act

Amendments to the Juveniles Act are recommended, in line with the

FLRC’s Juvenile Report. The recommended amendments should

include: -

 the repeal of Section 62A (relating to pornography), which should

be revised and incorporated in the Crimes Bill;

 new provisions prohibiting the sale and supply of drugs and

dangerous or prohibited substances to children under the age of

18 and using or procuring children to manufacture, sell and

traffick in drugs and prohibited substances;

 child-friendly procedures for giving evidence in court, including

the use of screens;

 the definition of a juvenile “in need of care, protection or control”

should be amended;

 the repeal of section 10 of the Juveniles Act, which required

corroboration of unsworn evidence of children;

 reference to family group conferences;

 a counseling provision;

 specific rules to regulate practice and procedure in the Juveniles

Court;

 Penalties should be reviewed.

5.8.3. Hotel Licensing Process

The Solicitor-General’s Office currently oversees the issue of hotel

licences.

It is recommended that consideration is given to the Department of

Tourism taking over responsibility for the issue of hotel licences. The

Department of Tourism is in a better position to liaise with key

stakeholders in the tourism industry, including the Tourism Police, and

put in place measures to combat sex tourism. Under the provisions of

the Hotel and Guests Act, the Hotel Licensing Board could either

cancel or refuse a renewal application for a hotel licence where it is

established that sex tourism offences against children have been

perpetrated in a hotel.

5.8.4. Amendments to the Adoption of Infants Act

It is recommended that the Adoption of Infants Act is reviewed and it is

considered whether: -

 the term “infant” should be replaced with the term “child”;

 the age threshold for an “infant” should be decreased from 21 to

18 years;

83

 gender neutral language should be used in relation to adoptions

by sole applicants;

 “Resident” should be defined;

 the Act should make reference to inter-country adoption (and

additional safeguards) as a last resort;

 the Act should prohibit any financial gain for any adoptions with

penalties;

 Informal adoptions should come within the scope of the Act.

5.8.5. Amendment to the Marriage Act

It is recommended that the age of consent to marriage by a female is

increased from 16 to 18 years.

5.8.6. Forced Recruitment

Recruitment into the army in Fiji is by application and is not forced or

compulsory. The Commander has a discretion to recruit a person

under the age of 18 who has applied for recruitment.

It should be considered whether the RFMF Act should be amended to

repeal the Command’s discretion to recruit young people under the age

of 18. This would be consistent with the Employment Relations

(Administration) Regulations 2008 which provides that a child must

not be employed in situations of direct hostilities.

5.9. Increased Co-operation

In order to effectively enforce ILO Convention No. 138 and No. 182,

increased co-operation and co-ordination is required between

interested stakeholders. In order to effectively enforce compulsory

education, there needs to be collaboration between schools, the

Ministry of Education, Ministry of Labour, the Fiji Police Force, the

Department of Social Welfare and social partners.

ILO’s “Time Bound Programme Manual for Action Planning, 2003”

states that a central co-ordinating body is critical in implementing a

comprehensive programme of action.

194

Training on child labour and child protection issues in a Fiji context is

also recommended.

Consideration should be given to the best vehicle for co-ordinating and

implementing policies and programmes relating to the elimination of

194

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, stated “The absence of a central

mechanism to co-ordinate the implementation of the Convention would make it difficult to achieve a

comprehensive and coherent programme of action,” page 44

84

child labour. The child labour unit will need to deal with a range of

cases which will encompass children working in a range of industries

and occupations and CSEC cases. The powers and role of the child

labour unit should also be considered and whether it is preferable for

the unit to be part of an existing Ministry or a stand alone unit. The

unit may have powers to investigate and make determinations on

individual complaints and would require comprehensive legal powers

for its tasks and it would be important for it to be given a sufficiently

independent status.

195

5.10. Centralised Child Labour Database

It is recommended that a centralized child labour database is

established, in order to increase access to information. Currently, the

dissemination of information is not co-ordinated. There are gaps in

reporting and referrals and important alerts from police in other

jurisdictions are not shared between Ministries and Departments.

Information technology assistance would be required to establish a

centralized child labour database.

195

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 45

85

ANNEXURE 1: LIST OF RECOMMENDED AMENDMENTS TO

LEGISLATION

Schedule A: Recommended Amendments to the Labour Legislation

A review of the ERP and related subsidiary legislation should consider: -

 the determination and gazetting of a list of hazardous work;

 the determination of a list of light work and the incorporation of a list

of light work in the Labour Legislation;

 a new provision which provides that the list of hazardous work should

be periodically examined and revised following consultation;

 the establishment of procedures for the verification of the age of the

persons under 18 prior to their being engaged in employment;

 a new provision for the emergency removal of children from situations

of hazardous labour to a place of safety;

 Section 99 of the ERP which should be widened to require the name,

address, and date of birth of every person appearing to be under 18

employed, the type of work performed and the hours of work

performed;

 the possible inclusion of powers for labour inspectors and police

officers to enter and search any premises where there are reasonable

grounds to believe that a child is involved in prohibited hazardous

behaviour;

196

 whether further regulations relating to children’s working conditions,

hours of work and a prohibition of overtime should be included (where

they have reached the minimum working age, or permitted to carry out

light work);

 whether regulations should be passed to ensure that such children: -

o receive fair remuneration;

o have limited working hours in a week and that overtime is

prohibited;

o are granted a minimum of 12 hours’ night rest;

o are granted an annual holiday with at least four weeks paid leave

and, in any case, not shorter than that granted to adults;

o are covered by social security schemes.

 an amendment to the Fiji National Provident Fund Regulations to

lower the age of a person who is eligible to make voluntary

contributions to the fund from 16 to 15 years.

196

ILO’s “Time Bound Programme Manual for Action Planning, 2003, page 34

86

Schedule B: Recommended Amendments to the Education Legislation

It is recommended that a review of the Education Legislation consider:-

 Regulation 3(2) of the Education Regulations (which sets the

compulsory school age at Class 8 or Form 2 level) which should be

amended to increase the minimum age for completing compulsory

education to 15 years;

 Compulsory Education Orders for all districts in Fiji, to raise the

compulsory school age for all children in Fiji to 15 years;

 Regulation 4(1) of the Rotuma (Primary School) Regulations, to

increase the age of compulsory education to 15 years and Regulation 6

of the Rotuma (Primary School) Regulations relating to school fees;

 Section 25 of the Education Act and the First Schedule of the Education

Act which states that the Minister can prescribe fees and that

proceedings may be instituted against a parent who does not pay fees;

 the repeal of all provisions which relate to school fees;

 Regulation 4(1)(a) of the Compulsory Education Regulations which

states that a parent’s duty to enforce compulsory schooling of his/her

child may be discharged if certain conditions apply;

 Whether legislative provisions should be enacted to hold parents

responsible for enforcing compulsory schooling and liable for

prosecution for not making an effort to ensure their child attends

school;

 whether provisions should be included: -

o which provide a right to free primary education;

o impose a duty on the central or district authority to provide

sufficient schools in number, character and equipment for that

purpose;

o states financial assistance should be provided to poor families

with children of school going age;

o which makes the duty to provide education enforceable by the

courts;

o that establishes a system of monitoring children’s entry,

attendance, and completion of school, with a mechanism for

following up on cases of children who have dropped out or are

absent.

87

Schedule C: Recommended Amendments to the Penal Code

It is recommended that the amendments contained in the FLRC’s Report on

Sexual Offences Against Children are adopted in the new Crimes Bill.

Such recommendations include: -

 the definition of “rape” should be widened to include rape by other

body parts and by objects or instruments and that the rape of other

body orifices be included;

 “Sexual intercourse” should be defined in the Penal Code and the

definition should consider all forms of penetration, including

penetration by body parts, objects and instruments;

 Terminology should be updated. The term “carnal knowledge” should

be replaced by the term “sexual intercourse”;

197

and the term

“defilement” should be replaced by “indecent dealings.”

198

 Consideration should be given to the repeal of Sections 155, 156,

199

157,

158, 159, 160 and 171, which could be replaced by a new provision of

“indecent dealings with children under the age of 18”;

200

 Sections 159 and 160 should be redrafted into one offence. The age

threshold in section 159 should be repealed and the age threshold in

section 160 amended to 18 years;

 References to corporal punishment should be removed;

201

 Sections 162 and 163 should be retained but redrafted and linked to

other sexual offences in the Penal Code;

202

 A new provision of “indecent dealings with children under 18 years”

should be introduced. The FLRC’s Report on Sexual Offences Against

Children recommended wording of the provision which is a modified

version of section 210 of the Queensland Criminal Code. It is also

recommended that the new provision of indecent dealings incorporate

and widen the pornography provision currently contained in Section

62A of the Juveniles Act;

 a new offence of “Sexual Interference” should be introduced into the

Penal Code;

203

 consideration of whether section 168 which targets the prostitute, not

the customer, should be retained. The Fiji Law Reform Commissions’

Discussion Paper in relation to Sexual Offences against Children

(1999) recommended consideration of whether the definition of

prostitution should be amended and consideration of children’s issues.

The Crimes Bill could consider a provision which targets the customer,

not the exploited child;

197

FLRC’s Report on Sexual Offences Against Children, page 10

198

FLRC’s Report on Sexual Offences Against Children, page 11

199

FLRC’s Report on Sexual Offences Against Children, page 16

200

FLRC’s Report on Sexual Offences Against Children, page 25

201

FLRC’s Report on Sexual Offences Against Children, page 25

202

FLRC’s Report on Sexual Offences Against Children, page 26

203

FLRC’s Report on Sexual Offences Against Children, page 18

88

 A revision of penalties and age thresholds. The Fiji Law Reform

Commission recommended “the penalties should be increased for

offences involving rape and indecent dealings, particularly where the

child is under the age of 12 years. Penalties should be higher where

persons who are in positions of trust over a child (parents and

guardians) buy or sell children for the purposes of illegal sexual

acts.”

204

The Review Team recommends further consultation and consideration of: -

 Gender neutral language to protect boys;

 Whether a “child” should be defined as a person under 18 years;

 Provisions requiring corroboration of victim’s testimony in sexual

offences being repealed;

 Whether it should be an offence for an adult to have sexual intercourse

with a child below a certain age (for example, the age of puberty.)

Consultation should determine whether provisions with age thresholds

should be retained or whether a new provision should be introduced

making it an offence for an adult to have sexual intercourse with a child

below a certain age. The consultation should consider the appropriate

age to be designated in the provision;

 Section 157 (Procuration) should be amended as follows: -

o the words “not being a common prostitute or of known immoral

character” should be deleted;

o the age threshold should be reduced from 21 years to 18 years;

205

o the following proviso should be repealed: “Provided that no

person shall be convicted of any offence under this section upon

the evidence of one witness only, unless such witness be

corroborated in some material particular by evidence implicating

the accused.”

 Section 158 (Procuring defilement of a woman by threats of fraud or

administering drugs) should be amended to:-

o use gender neutral language to protect boys;

o remove the words “not being a common prostitute or of known

immoral character” from section 158(1)(b);

o remove the words “unlawful carnal connection” and replace with

“sexual intercourse”;

o repeal the following proviso: “Provided that no person shall be

convicted of any offence under this section upon the evidence of

one witness only, unless such witness be corroborated in some

material particular by evidence implicating the accused.”

 Section 161 (Detention with intent or in a brothel) should be amended

to: -

o use gender neutral language to protect boys;

204

FLRC’s Report on Sexual Offences Against Children, page 26

205

FLRC’s Report on Sexual Offences Against Children, page 25

89

o remove the words “be unlawfully and carnally known by any man”

and replace with the words “have sexual intercourse with any

man;”

o remove the reference to corporal punishment;

 the age of minors in sections 162 and 163 (selling and buying minors

under the age of sixteen for immoral purposes) should be increased

from 16 to 18;

 the words “with intent” should be removed from sections 162 and 163;

 section 163(2)

206

should be repealed;

 Section 171 (Conspiracy to defile) should be amended to remove

references to “unlawful carnal knowledge” and corporal punishment;

 Section 175(a) and (c) (Unnatural offences by a male person) should be

repealed;

 Section 254 (child stealing) should be amended to increase the age of a

child from 14 to 18 years;

 Section 255 (abduction of girls under the age of sixteen) should be

amended to increase the age of a child from 16 to 18 years and the

reference to the word “unmarried”

207

should be deleted;

 the defence that a person “had reasonable cause to believe and did in

fact believe that the girl was above the age of 16” in sections 156, 159

and 160 is removed;

 a new offence should be created “…for any person in a position of

authority or trust in relation to a child (such as relatives, guardians,

custodians, teachers, doctors) who knows or suspects that any offence

has been, is being, or is about to be committed to fail to report it to an

officer of a law enforcement authority;”

 offences in the Crimes Bill should be framed “…in a way that does not

rely on the willingness of the victim to testify;”

 new offences should be introduced relating to people who: -

o buy the sexual services of a child under 18;

o recruit, induce or compel a child under 18 into commercial sexual

exploitation;

o participate, facilitate, advertise or allow the commercial sexual

exploitation of a child under 18; and

o receive money or other reward, favour or compensation for the

sexual exploitation of a child.

 a new provision allowing criminal compensation for victims should be

introduced;

 the provisions of the Crimes Bill should be drafted in a way that does

not rely on the willingness of the victim to testify;

206

Section 163(2) of the Penal Code: Any common prostitute or other person of known immoral character

who buys, hires or otherwise obtains possession of a minor under the age of sixteen years shall, until the

contrary is proved, be deemed to have obtained possession of such minor with the intent mentioned in

this section.”

207

Section 255 of the Penal Code: “Any person who unlawfully takes or causes to be taken any unmarried

girl, being under the age of sixteen years, out of the possession and against the will of her father or

mother, or of any other person having the lawful care or charge of her, is guilty of a misdemeanor.”

90

 a new provision which targets the “user” or “customer” should be

considered;

 penalties should be reviewed, particularly where perpetrators are in a

position of trust over a child or buy or sell children for the purposes of

illegal sexual acts;

208

 a new offence should be introduced “…for any person in a position of

authority or trust in relation to a child (such as relatives, guardians,

custodians, teachers, doctors) who knows or suspects that any offence

has been, is being, or is about to be committed to fail to report it to an

officer of a law enforcement authority.”

209

208

FLRC’s Report on Sexual Offences Against Children, page 26

209

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, page 16

91

Schedule D: Recommended Amendments to the Juveniles Act

A review of the Juveniles Act should take into account the following

considerations: -

 An amendment of Section 7 of the Juveniles Act to allow either a

parent, guardian or support person to be present in court;

 Section 10 of the Juveniles Act, which required corroboration of

unsworn evidence of children, should be repealed;

210

 Section 13 should be amended to provide that screening should be

introduced for children and young people complainants while giving

evidence;

211

 There should be reference in the Juveniles Act to the principle of the

“best interests of the child;”

 Section 40 relating to the definition of a “juvenile in need of care,

protection or control” should be amended to include situations where a

juvenile is ill-treated, abused or seriously deprived or where a juvenile

has committed offences so as to give serious concern for the well-being

of the juvenile;

 Section 41(4) should be amended to include family group

conferences

212

and a counseling provision;

213

 Specific rules should be considered for the regulation of practice and

procedure in the Juveniles Court;

214

and

 New offences relating to the manufacture, sale and supply of drugs and

prohibited substances to children and using children to traffick in

drugs and prohibited substances should be included in the section on

offences against children;

215

 Section 62A of the Juveniles Act should be repealed and included in the

new provision of Indecent Dealings in the Penal Code. It is

recommended that the pornography provision is widened to cover

access to and the viewing of pornography websites and the use of the

Internet or other media in all its forms;

216

 Penalties should be reviewed. For example, the penalty for procuring a

child to beg (section 58) is a F$50 fine and/or three months

imprisonment.

 Offences should be reframed “…in a way that does not rely on the

willingness of the victim to testify;”

 Part IX

217

and Part X

218

should be reviewed and consideration given to

the inclusion of rapid response interventions including: -

210

In any event, State v A.V., HAC192 of 2008 held that section 10 of the Juveniles Act is unconstitutional

and discriminatory on the basis of age and that “section 10 of the Juveniles Act must be considered

stricken from the said Act.”

211

FLRC’s Report on Sexual Offences Against Children, page 52

212

FLRC’s Report on Sexual Offences Against Children, page 30

213

FLRC’s Report on Sexual Offences Against Children, page 31

214

FLRC’s Report on Sexual Offences Against Children, page 50

215

FLRC’s Report on Sexual Offences Against Children, page 33

216

FLRC’s Report on Sexual Offences Against Children, page 34

217

Part IX relates to Juveniles in need of care, protection or control

92

o orders for emergency protection, with the Director of Social

Welfare being the first line of response;

o orders for maintenance, support and education; and

o orders that determine who is to have care and parental

responsibility, or guardianship for/of a child;

o Courts should be conferred with jurisdiction to make a wide range

of orders to remove, protect and make provision for children at

risk or in need;

o The inherent jurisdiction of a court to protect children from harm

should be given statutory confirmation and made available to any

concerned person or organization in emergency situations;”

219

 A repeal of Section 57(7) of the Juveniles Act which states that a

parent, teacher or other person having lawful control or charge of a

juvenile may administer reasonable punishment to him;

 New provisions relating to: -

o the provision of assistance and information about court

proceedings to victims and their families;

o child-sensitive procedures for investigating and hearing evidence

and provision for maintaining victim’s privacy and confidentiality

during court proceedings;

o the protection of children and witnesses;

o the burden of proof that a victim had attained the age of 18 at the

date of the commission of the offence could be placed on the

accused;

o Child-sensitive means of giving evidence via an intermediary, in

private, via video or video link;

o The hearing of cases without delay and court-listing procedures

for cases to be heard as a matter or urgency and priority.

218

Part X relates to Care Orders

219

ILO’s “Time Bound Programme Manual for Action Planning, 2003”, Page 28

93

ANNEXURE 2: ORIGINAL TERMS OF REFERENCE

Overall Programme Title: Tackling Child Labour Through Education (TACKLE)

Project: Review of Legislative and Policy Framework with Regard to Child Labour

and Education in Fiji

1 Introduction

The ILO’s International Programme on the Elimination of Child Labour (IPEC) was

created in 1992 with the overall goal of the progressive elimination of child labour, which

was to be achieved through strengthening the capacity of countries to deal with the

problem and promoting a worldwide movement to combat child labour. IPEC currently

has operations in 88 countries, with an annual expenditure on technical cooperation

projects that reached over US$74 million in 2006. It is the largest programme of its kind

globally and the biggest single operational programme of the ILO.

The number and range of IPEC’s partners have expanded over the years and now include

employers’ and workers’ organizations, other international and government agencies,

private businesses, community-based organizations, NGOs, the media, parliamentarians,

the judiciary, universities, religious groups and, of course, children and their families.

IPEC's work to eliminate child labour is an important facet of the ILO's Decent Work

Agenda. Child labour not only prevents children from acquiring the skills and education

they need for a better future, it also perpetuates poverty and affects national economies

through losses in competitiveness, productivity and potential income. Withdrawing

children from child labour, providing them with education and assisting their families

with training and employment opportunities contribute directly to creating decent work

for adults.

ILO-IPEC, in agreement with the Committee of Ambassadors of the ACP Group of

States and with financial support from the European Union (EU) has launched a major

new project aimed at tackling child labour through education (TACKLE) in 11 countries

across Africa, the Caribbean and the Pacific.

The project has been developed in the context of a strategic partnership signed in 2004

between the ILO and the European Commission (EC) aimed at implementing their

common mission to reduce poverty and improve labour conditions in developing

countries. The overarching purpose is to accelerate efforts against increasing poverty

towards the achievement of the Millennium Development Goals

2 Background

The overall objective of TACKLE is to contribute towards poverty reduction by

providing equitable access to basic education and skills development to children involved

in child labour or at risk of being involved in child labour.

94

The project purpose is to strengthen the capacity of the national and local authorities in

the formulation, implementation and enforcement of policies to fight child labour in

coordination with social partners and civil society.

One of the first steps that countries must take to effectively implement ILO Child Labour

Convention 138 (1973), establishing the minimum age for entry into work, and

Convention 182 (1999), on the Worst Forms of Child Labour, is to bring national laws

into harmony with the Conventions. The purpose of the work described in these Terms

of Reference is to assess the Fijian legal framework with a view to identifying any gaps

or inconsistencies with regard to ILO Conventions 138 and 182. In particular, the review

may point to the need to strengthen the coherence between education and labour

legislation, and to improved harmonization of all areas of legislation that refer to

children’s rights, particularly the right to education.

Establishing a coherent legal framework with regard to child labour will do little to end

the problem in and of itself. Laws must be accompanied by policies and programmes to

ensure their effective implementation; enforcement is key to achieving a real impact.

Therefore, an analysis of implementing policies and programs is important as well. Fiji

currently does not have a National Action Plan against child labour though the

elimination of child labour was identified as a priority in the National Plan of Action on

Decent Work. The country’s enforcement of its child labour laws, in addition to other

relevant legislation such as laws against trafficking, has been deemed lacking by outside

parties including the U.S. Department of State. The review should highlight existing

weakness and indicate areas in which TACKLE could assist in terms of both legislation

and implementation.

Fiji has a minimum age of employment of 15 years but currently the legislation includes

provisions for children under 15 to work that may be not in accordance with Convention

138. Education is compulsory through grade 8, normally 13 years of age, or until the

child is 15. The country has not elaborated a list of hazardous child labour as required by

Convention 182.

There are also other international agreements which are important in fighting child labour

such as the UN Convention on the Rights of the Child (CRC). Fiji has ratified the CRC

but not the Optional Protocol on the involvement of children in armed conflicts, the

Optional Protocol on the sale of children, child prostitution and child pornography, or the

UN Trafficking in Persons Protocol. Further details regarding the legislative framework,

which will serve as an input into the work contemplated in this Terms of Reference, can

be found in Annex 1.

3 Scope of work

The project is seeking to commission a legal or public policy expert(s) to conduct the

following review:

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Overall Objectives

1.1. Review the existing legal/regulatory framework in view of facilitating the

legislative process that can lead to an elaboration and expansion of a legal

framework that is in accordance with ILO’s Child Labour Conventions 138 and

182. Particular focus should be placed on the harmonization of education and

labour legislation.

1.2. Assess existing policies and programmes intended to implement the relevant

legal/regulatory framework

1.3. Make recommendations regarding areas where ILO can assist Fiji in

strengthening the legislative and policy framework on child labour and education.

Specific duties to include:

o Examine existing legislation, legal frameworks, policies and strategies impacting

on child labour, including the Constitution, Penal Laws, National policies on

Children, Labour and Employment Laws (including laws on occupational health

and safety and labour inspection), Family and Child Care Laws (including laws

on marriage and adoption), Child Rights and Welfare Laws, Trafficking and

Commercial Sexual Exploitation of Children laws, Customary Laws, Laws of

Compensation, Evidence and Procedure Laws, Education Laws, administrative

laws, laws governing international movement, cooperation and assistance, and

other laws deemed relevant.

o Review existing programmes and strategies of key government ministries in

relation to the welfare of children.

o Recommend strategies for legislative harmonization to promote a more co-

operative approach and co-ordinated strategy to tackling child labour.

o Formulate a consolidated reference list with hyperlinks to the documents and data

collected during this Review.

o Develop a report on the legislative and policy review and findings and include

recommendations to strengthen legislation to protect children from child labour,

the worst forms of child labour and hazardous work.

o Work in consultation with designated project committee represented by the

Labour and Education Ministry, workers and employers organizations, and other

project stakeholders, and present initial findings and final report to committee.

o Identify planned changes of or scheduled reviews of relevant legislation with a

view to identifying opportunities for TACKLE to provide advisory services or

technical assistance.

96

o Identify ministries, government departments and programmes that have a role

fighting child labour in the country and/or have potential but are being

underutilized.

o Identify all international agreements relevant to child labour that have been

ratified or otherwise adopted.

o Ensure that the findings of the desk review are incorporated into the final report.

4 Structure of Report

The consultant will produce a report in the following format:

1. Title Page, Table of Contents, Acronyms

2. Preface

• Project title

• Dates

• Purpose of the review

• Authors, stating specific roles

3. Executive Summary

• Brief project description

• Overview of the review proceedings

• Principle findings, relating to project goals/targets

• Key recommendations; specific lessons learned

4. Main Report

• Project description

• Goals and targets

• Project stakeholders and beneficiaries

• Overview of review

• Brief description of methodologies used

• Review findings: legislation and policy

• Constraints and problems encountered; capacity building requirements

• Recommendations

5. Annexes

• Original TOR

• Timetable

• List of legislations and policies reviewed

• List of people interviewed

• Review guidelines developed

• Other relevant documents

5 Confidentiality

All information and reports associated with the contracted services are strictly

confidential and the property of ILO. They are to be returned at the conclusion of the

assignment.

97

6 Consultancy

The commissioned legal consultant/s shall ensure that the Review is carried out with due

diligence, efficiency and economy in accordance with the terms of this Commission. The

Review must include where necessary the use of consultative, participatory methods with

sound management and technical practices that comply with professional consulting

standards and best practices recognized by relevant professional bodies.

7 Stakeholders

It is important that all relevant stakeholders are consulted. The extent and form this takes

will depend on the arrangements by the Consultant/s with support from the contracting

agency during the course of the assignment.

Annex 1: Fiji – Desk Review Findings- 23 September 08

CHILD LABOUR SITUATION

Background

Children work in agriculture in Fiji, including in the tobacco sector. Children also

work in the informal sector, in family businesses, and on the streets. Children shine

shoes, repair cars, and work as domestics in homes. Children are sexually exploited

through prostitution, pornography, and child sex tourism.

Education

In Fiji, education is compulsory until age 15 and there is free public education

though students must pay for school supplies and related items which prohibit some

children from attending school. The net primary enrolment rate in 2004 was 96%. As of

2003, 99% of primary school entrants were likely to reach grade 5. Primary education is

accessible to almost all children in Fiji, but secondary education is less accessible due to

the higher costs involved and the geographical distribution of schools.

LEGAL FRAMEWORK

The Constitution prohibits forced labour. The Employment Relations Bill outlines

the provisions of the Convention, and explicitly prohibits any form of child labour. The

country is currently in the process of elaborating a new Employment Relations Bill that

would replace existing labour laws and would make relevant changes so as to harmonize

the legislation with the Convention.

The effective enforcement of the Convention through inspections is primarily

ensured by labour officers and labour inspectors authorized by the Permanent Secretary,

which, pursuant to section 8 of the Employment Ordinance, may institute proceedings in

respect of any offence committed by any person against any of the provisions of this Act.

Section 5 of the Employment Ordinance provides for the appointment of a Permanent

Secretary of Labour for the purposes of the administration of this Act. Section 99 of the

Employment Ordinance provides for penalties of a fine and imprisonment for an offence

committed against this Act. The Government's has stated that there are no court or

tribunal rulings to date, because of the compliance by employers and the strict

enforcement by labour inspectors. However, the U.S. Department of State has reported

that the country’s child labour laws and enforcement mechanisms are insufficient because

98

of the lack of a comprehensive child labour policy and of resources to investigate reports

of child labour.

Definition of Child Labour

Under the new Employment Relations Bill, a child will now be defined as a

person under the age of 18 years. The current law states that no child under 12 years shall

be employed in any capacity whatsoever and sets guidelines for the employment of

“children”, defined previously as 12 to15, and “young persons” as 15 to 18. Children may

not work more than 6 hours a day, and young persons more than 8 hours a day. Children

may not work in any industrial undertaking, and neither children nor young persons may

be employed in dangerous working conditions or during the night.

Minimum Age

Section 92 of the draft Employment Relations Bill sets the minimum age for

admission to employment or work at 15 years. Persons between the ages of 15 and 17

may be employed in certain occupations not involving heavy machinery; however, they

must be given specified hours and rest breaks. Currently, there is no law on the minimum

age of conscription into the military. The minimum age for voluntary military service is

18 years.

According to section 59 of the Employment Ordinance, no child under the age of

12 years shall be employed in “any capacity whatsoever”, however it stipulates that this

provision shall not apply to any child employed in light work suitable to his capacity in

an agricultural undertaking which is owned and operated by the family of which he is a

member. Therefore, the Employment Ordinance permits light work by children below the

age of 12 years. Children between ages 12 and 15 may be employed on a daily wage

basis in non-industrial work not involving machinery, provided they return to parents or

guardian every night. According to section 93(2) of the draft Employment Relations Bill,

only children between 13 and 15 years may be employed in light work in compliance

with the Convention.

Ratification of Relevant Conventions

Fiji ratified Convention 138 in 2003 and 182 in 2002. The Convention on the

Rights of the Child was ratified in 1993.

Education

Tuition-free education is provided in primary schools for all children aged 6-13.

Education is compulsory for children through Grade 8 (usually age 13) or at the end of

the year when the child turns 15 per the Compulsory Education Order. While primary

school children do not pay tuition fees as such, schools levy fees which prevent some

children from going to school. Fiji relied in large part on community involvement in

schools allowing schools to take in local needs and challenges.

WFCL

There is no existing programme of action as such to eliminate the WFCL,

“although the Government and social partners and non-governmental organizations and

civil societies do oversee their own actions on the elimination of the WFCL”.

99

Section 91(a) of the Employment Relations Bill prohibits all forms of slavery or

practices similar to slavery, such as the sale and trafficking of children, debt bondage and

any form of forced or compulsory labour, including forced or compulsory recruitment of

children in armed conflict. Section 256 of the Employment Relations Bill outlines a

general penalty for these offences, including fines and imprisonment. Section 91(b) of the

Employment Relations Bill prohibits the use, procuring or trafficking of a child for illicit

activities, in particular for the production and trafficking of drugs, as defined in relevant

international treaties. However, there appear to be no provisions in the Penal Code

prohibiting the involvement of children in drug production and trafficking. Section 58 of

the Juveniles Act punishes anyone who causes or procures any child (defined as under the

age of 14) or, having the custody or care of such a child, allows him to be in any street,

premises or place for the purpose of begging.

Hazardous Work

Under the terms of section 61 of the Employment Ordinance, no child (defined as

a person under the age of 15) or young person (defined as a person over the age of 15 but

under the age of 18) shall be employed in any work which, in the opinion of the proper

authority, is injurious to health, dangerous or otherwise unsuitable. However, the national

legislation does not determine the types of hazardous work pursuant to section 61 of the

Employment Ordinance. Legislation does specify some work which children are

prohibited from participating in. Section 95(2) of the Employment Relations Bill provides

that the Minister of Labour may declare any employment or workplace to be a prohibited

or restricted employment or workplace on the ground that it is injurious to health or is

hazardous, dangerous, or unsuitable. Section 95(1) of the Employment Relations Bill

prohibits the employment of children underground in mines. Section 63 of the

Employment Ordinance restricts the employment of children in industrial undertakings

and in any undertaking in attendance on machinery for health and safety reasons.

However, under this Ordinance, the term “child” means a person who has not attained the

age of 15 years.

Commercial Sexual Exploitation of Children

Fiji boys and girls are victims of CSEC by Fiji citizens, foreign tourists, and

sailors on foreign fishing vessels. Local hotels procure underage girls for commercial

sexual exploitation by foreign guests.

The law prohibits the forcible procurement of women and girls into prostitution

within and outside the borders of Fiji, as well as the sale, purchase, or hiring of minors

less than 16 years for prostitution, illicit sexual intercourse or any unlawful immoral

purpose. It also prohibits the production and possession of obscene materials depicting

both adults and children. The Penal Code has extensive provisions prohibiting the

procurement and use of girls under 18 for prostitution but does not include the same

protection for boys under 18. Section 91(c) of the Employment Relations Bill explicitly

prohibits the use, procuring or offering of a child under the age of 18 for prostitution, for

the production of pornography or for pornographic performances. The Act to amend the

Juveniles Act of 1997 imposes specific penalties if a person is convicted for recording

pornographic material involving juveniles but the Act applies only to juveniles under the

age of 17.

100

Penalties for those violating these statutes range from 2 to 5 years of

imprisonment, with the possibility of corporal punishment.

Trafficking

Fiji is a source country for children trafficked for the purpose of CSEC. Some Fiji

children are informally adopted or given to other families to raise—a tradition of child

placement that can facilitate trafficking in persons.

The law criminalizes trafficking in persons. Fiji prohibits sex and labour

trafficking through its Immigration Act of 2003, which prescribes punishments that are

sufficiently stringent. Fiji laws, including those pertaining to trafficking in persons and

sexual assault, apply to Fiji citizens deployed abroad as part of peacekeeping missions.

The Penal Code prohibits parents or custodians of children under 16 from selling or

leasing for unlawful or immoral purposes, including prostitution. It also prohibits anyone

from buying or leasing children for these purposes. The Penal Code prohibits the

kidnapping, purchase or trafficking of children under the age of 16 for the purposes of

slavery, grievous harm or sexual exploitation. However, the Convention requires all

forms of sale and trafficking in children to be prohibited irrespective of the purpose.

Although there are prohibitions in place in Fiji with respect to children under 16, the

Convention applies to all children under the age of 18.

Violators of trafficking legislation can be punished with a maximum sentence of

20 years in prison, as well as fines. However, the government has demonstrated no action

to investigate or prosecute traffickers, assist victims, or participate in public awareness

campaigns to prevent trafficking. The government has not developed or implemented a

process to refer identified victims to institutions that could provide care. The Republic of

Fiji Military Forces provided anti-trafficking training for soldiers in advance of their

being deployed abroad on international peacekeeping missions.

Fiji has not ratified the 2000 UN Trafficking in Persons Protocol.

According to the US Department of State report, Trafficking in Persons Report

2008, “The Government of Fiji does not fully comply with the minimum standards for

the elimination of trafficking and it is not making significant efforts to do so.” The

country was ranked in Tier 3 in the 2008 U.S. Trafficking in Persons Report.

Sources:

CEACR: Individual Direct Request concerning Minimum Age Convention, 1973 (No.

138) Fiji (ratification: 2003) Submitted: 2007

CEACR: Individual Direct Request concerning Minimum Age Convention, 1973 (No.

138) Fiji (ratification: 2003) Submitted: 2006

CEACR: Individual Direct Request concerning Worst Forms of Child Labour

Convention, 1999 (No. 182) Fiji (ratification: 2002) Submitted: 2007

CEACR: Individual Direct Request concerning Worst Forms of Child Labour

Convention, 1999 (No. 182) Fiji (ratification: 2002) Submitted: 2006

Fiji: Country Reports on Human Rights Practices - 2007. Released by the Bureau of

Democracy, Human Rights, and Labor, March 11, 2008

The EFA 2000 Assessment: Country Reports: Fiji. UNESCO. World Education Forum.

http://www.unesco.org/education/wef/countryreports/fiji/rapport_2_1.html

Trafficking in Persons Report 2008. U.S. Department of State.

www.state.gov/g/tip/rls/tiprpt/2008/

101

ANNEXURE 3: LIST OF LEGISLATION AND POLICIES REVIEWED

Schedule A: Legislation Reviewed

1. Adoption of Infants Act, Cap. 58

2. Cinematographic Films Act, Cap. 271

3. Civil Evidence Act 2002

4. Community Work Act 1994

5. The Constitution of the Republic of Fiji 1997

6. Cooperatives Act 1996

7. Dangerous Drugs Act, Cap. 114

8. Education Act, Cap. 262

o Compulsory Education Regulations 1997 (Legal Notice 23)

o Compulsory Education Order 1997 (Legal Notice 22)

o Compulsory Education Order 1998 (Legal Notice 28)

o Education (Establishment and Registration of Schools) Regulations

1966

o Rotuma (Primary School) Regulations

9. Employment Relations Promulgation 2007

o Employment Relations (Administration) Regulations 2008 (Legal

Notice 52)

o Employment Relations (Labour-Management Consultation and

Cooperation Committees) Regulations 2008 (Legal Notice 53)

o Employment Relations (Employment Agencies) Regulations 2008

(Legal Notice 58)

o Code of Good Faith for Collective Bargaining 2008 (Legal Notice 54)

10. Examinations Act, Cap. 262A

11. Extradition Act 2003

12. Factories Act, Cap. 99

13. Family Law Act 2003

o Family Law Regulations 2005 (LN. 49)

14. Health & Safety at Work Act 1996

o Health and Safety at Work (Administration) Regulations 1997 (Legal

Notice 170)

o Health and Safety at Work (General Workplace Conditions)

Regulations 2003 (Legal Notice 25)

o Health and Safety at Work (Control of Hazardous Substances)

Regulations 2006 (Legal Notice 130)

15. Hotel and Guests Act (Cap. 195)

16. Illicit Drugs Control Act 2004

17. Immigration Act 2003

o Immigration Regulations 2007

18. Interpretation Act, Cap. 7

19. Juveniles Act, Cap. 56

o Boarding Out of Juveniles Regulations

20. Juveniles (Amendment) Act No. 29 of 1997

21. Marine Act 1986

102

o Marine (Masters and Seamen) Regulations 1990 (Legal Notice 821)

22. Marriage Act, Cap. 50

23. Mining Act, Cap. 146

24. Mutual Assistance in Criminal Matters Act of 1997

25. Penal Code, Cap. 17

o Criminal Procedure Code, Cap 21

26. Police Act, Cap. 85

27. Prisons & Correction Act 2006 (not effective as a commencement date has

not been gazetted)

28. Public Service Act, 1999

29. Quarries Regulations

30. Republic of Fiji Military Forces Act , Cap. 81

o Cadet Units Regulations (Legal Notice 159 of 1977)

31. Social Justice Act 2001

32. Shop (Regulations of Hours and Employment) Act, Cap.100

33. Training and Productivity Authority of Fiji Act, Cap. 93

34. Workmen’s Compensation Act, Cap. 94

103

Schedule B: Policies Reviewed

1. Sustainable Economic and Empowerment Development Strategy (SEEDS)

2008 – 2010;

2. National Policy on Sexual Harassment in the Workplace 2008 (LN. 56);

3. Ministry of Education’s policies, codes and guidelines on: -

o “Education For All”, Mid-Decade Assessment Report 2008, from the

Ministry of Education;

o Occupational Health and Safety in Schools;

o Selection and Purchasing of Library Resources;

o Standards Monitoring in Schools;

o Information – Privacy and Security;

o Fiji Junior Certificate Assessment;

o Behavioural Management;

o Excursions (Off-School Site Activities);

o Enterprise Education;

o Technical Vocational Education & Training;

o Schools Information Management System;

o Skills Training for Employment Policy;

o Codes of Ethics of the Teaching Profession;

o Early Childhood Education;

o Drugs and Substance Abuse in Schools;

o Curriculum Assessment and Reporting.

104

ANNEXURE 4: LIST OF PEOPLE INTERVIEWED

 Mr S. Ramagimagi- Director of Labour Compliances, Ministry of

Labour

 Vani Verea, Acting Principal Technical Officer, Occupational Health

and Safety Unit, Ministry of Labour;

 Ms. Ilisapeci Rokotunidau- Director of Social Welfare

 Mrs. Viniana Kunabuli- Director Curriculum Advisory Services,

Ministry of Education;

 Mrs Naiyaga- Deputy Secretary for the Ministry of Education;

 Mr Beniamino Salacakau, Director of Policy, Ministry of Education;

 Mr. Agni Deo Singh- General Secretary, Fiji Teachers Union

 Ms. Jyotika Sharma- Education & Training Officer/ Centre Manager-

Fiji Trades Union Congress

 Ms. Mere Ratunabuabua- Director Culture & Heritage, Ministry of

Education, National Heritage, Culture and Arts

 Navnita Chand- FEF representative- Senior Human Resources Officer,

FTIB

 Mr. Jonetani Tonawai- FEF representative- Fiji Industries Ltd

 Mr. Manoa Malani, Department of Tourism, Acting Director of

Tourism

 Iris Low-McKenzie, Save the Children Fiji

 Edwina Kotoisuva, Fiji Women’s Crisis Centre

 Ms. Vani Verea, Acting Principal Technical Officer, Occupational

Health and Safety Unit, Ministry of Labour

 Sergeant Mereani Moi Moi and Inspector Linieta Navonu in the Child

Abuse and Sexual Offences Unit of the Fiji Police Force

 Inspector Bhag Wati Goundar and Romeo Nasila, in the Juvenile Unit

of the Fiji Police Force

 M. Ravula, Department of Immigration, Ministry of Defence, National

Security & Immigration

Note:

1. 55 stakeholders representing various government departments, workers,

employers and civil society including NGOs, academia and media

personnel, participated in the one- day National Stakeholder Dialogue

held on June 10

th

in Suva to examine and endorse the Final Draft

Legislative Review Report

2. In addition, feedback into the various drafts of the report was received by

various stakeholders via email over a period of 6-8 weeks.

105

ANNEXURE 5: REFERENCE LIST

 The Desk Review Findings of the ILO TACKLE team in Geneva dated

23 September 2008 in relation to Fiji’s compliance with Conventions

138 and 182, in particular the ILO Committee of Experts’ Direct

Request (2006) to Fiji on the application of C138 and C182;

 the informal Comparative Analysis of law and practice in Fiji in light of

Convention 138 made by IPEC Geneva, dated 27 July 2005;

 the informal Comparative Analysis of law and practice in Fiji in light of

Convention C182 made by IPEC Geneva, dated 5 February 2005 in Fiji

 ILO publication: “Modern Policy and Legislative Responses to Child

Labour,” 2007;

 ILO publication: “Time Bound Programme Manual for Action

Planning,” 2003;

 ILO’s Publication on “Child Labour, A Textbook for University

Students,” 2004

 “Review of Child Labour Laws of Barbados”, Report, Clive Pegas, June

2005

 UNHCR 2007 Findings on the Worst Forms of Child Labour for Fiji

(Publisher- United States Department of Labour): Publication Date: 27

August 2008

 US Department of State Country Report on Human Rights Practices in

Fiji- 11 March 2008

 US Department of State, “Trafficking in Persons Report– June 2008,

Fiji”

 Save the Children Fiji Report, “The Commercial Sexual Exploitation

and Sexual Abuse of Children in Fiji: A Situational Analysis,” 2006

 Report on the mission of the Special Rapporteur to the Republic of Fiji

on the issue of commercial sexual exploitation of children (11-16

October 1991)

 UNICEF “Report on Violence Against the Girl Child in the Pacific

Islands Region;”

 Report on Pacific Regional Workshop on Combating Poverty & CSEC

(2003)

 Fiji Law Reform Commission- Discussion paper on Sexual Offences

against Children in Fiji (1999)

 Fiji Law Reform Commission’s Report on Sexual Offences Against

Children, (May 2000)

 “Education For All”, Mid-Decade Assessment Report 2008, from the

Ministry of Education, National Heritage, Culture and Arts;

 Ministry of Education’s Taskforce Proposed Project Submission for

ILO Child Labour (TACKLE) Project, December 2008;

 Save the Children’s Report: Keeping Children in School

 Sustainable Economic and Empowerment Development Strategy

(SEEDS) 2008 – 2010

 Fiji Islands Bureau of Statistics- 2007 Census of Population and

Housing

106

 The People’s Charter for Change, Peace and Progress;

 The Department of Social Welfare’s Standard Operating Procedures

 Memorandum of Understanding between the Fiji Police and the

Ministry of Education and Technology, May 1998;

 Protocol between the Fiji Police and the Ministry of Health regarding

the Provision of Medical Services, May 1998;

 Protocol between the Fiji Police and the Department of Social Welfare

regarding protective services for children and young people in Fiji, May

1998.

Cases

 State v Mutch [1999] FJHC 149

 McCoskar v The State [2005] FJHC 500

 In re S (an Infant) [1997] FJHC 182; Hbk0059j.1997s (24 November

1997)

 Social Welfare Officer v Marshall [2008] FJHC 283; HBA11.2006 (7

March 2008)

 Lakhan v Lata [1994] FJHC 26; Hbc0585j.93s (22 March 1994)

 State v A.V. [2008] HAC 19 of 2008

Treaties, Optional Protocols and Recommendations

 ILO Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8)

 ILO Rights of Association (Agriculture) Convention, 1921 (No. 11)

 ILO Workmen’s Compensation (Agriculture) Convention, 1921 (No. 12)

 ILO Underground Work (Women) Convention, 1935 (No. 45)

 ILO Labour Inspection Convention, 1947 (No. 81)

 ILO Freedom of Association and Protection of the Right to Organize

Convention, 1949 (No. 87)

 ILO Seafarers’ Identity Documents Convention, 1957 (No. 108)

 ILO Minimum Age Convention, 1973 (No.138)

 ILO Minimum Age Recommendation, 1973 (No. 146)

 ILO Occupational Safety and Health Convention, 1981 (No. 155)

 ILO Worst Forms of Child Labour Convention, 1999 (No. 182)

 ILO Worst Forms of Child Labour Recommendation 1999 (No. 190)

 ILO Safety and Health in Agriculture Convention, 2001 (No.184)

 United Nations Convention on the Rights of the Child 1989;

 Convention on the Civil Aspects of International Child Abduction 1980;

 International Convention for the Suppression of Trafficking in Women

& Children 1921;

 Optional Protocol to the Convention on the Rights of the Child on the

Sale of Children, Child Prostitution and Child Pornography 2000;

 Optional Protocol to the Convention on the Rights of the Child on the

Involvement of Children in Armed Conflicts 2000.