Another country that has signed but not ratified the OPCROC is Australia. This means that the primary articles under international law that protect children against child prostitution is not binding under Australian law. As a result, the sanctions under the protocol such as are not enforceable which is a problem because the large bulk of human rights laws are internationally based and legally recognised through UN treaties, protocols, and conventions. Which, if signed Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law.
However, despite this, Australia has various legal measures that efficiently prevent child prostitution occurring on a domestic level.
The first measure that has been put in place in order to prevent child prostitution is the legislation of The Crimes (Child Sex Tourism) Amendment Act 1994. The “CST” Act was enacted to implement CROC Article 34 into Australian law. Although the sexual exploitation of children was already an offence under State criminal law, the CST Act was the first Australian statute to specifically address child sex tourism and prostitution.
The incidence of child prostitution in Australia is relatively limited, according to the “Maxim Institute, In Australia an estimated 3700 children under 18 are selling their bodies for sex.
” 3Therefore, sexual offences under the CST Act include engaging in sexual intercourse with a child while outside Australia, and allows enabling Australian citizens, residents and corporations to be charged for their behaviour abroad. While Australia can be commended for enacting legislation such as the CST Act, doubt arises as to whether this law is significant only as a means of principle, or whether it represents genuine progress.
On the whole, the CST Act appears to have been reasonably effective in addressing child sex tourism, “since 1994, Australia has prosecuted ten people for offences relating to child sex tourism in countries such as Cambodia and the Philippines.
Eight of these prosecutions have resulted in successful convictions, with sentences ranging from six months to twelve years. “4 The repercussions and sanctions under this Act ultimately dispel the belief that child sex tourists will not be held accountable for their actions, thus the sanctions create a reasonably effective legal measure.
Conversely, The Crimes (Child Sex Tourism) Amendment Act 1994 entails a number of flaws such as difficulty and high costs of locating child victims, problems with overseas investigation, and the recurring breaches overseas committed by Australian citizens. Despite the fact that the CST Act had been amended “in order to make proceedings more child-friendly” the child witnesses are often traumatised, which increases the difficulty of find child victims. As many of the prosecutions of these cases rely on witnesses, many of the offenders walk away without a charge, due to the lack of evidence given by a child.
For example, in the case R v John Scott Holloway 1996, Holloway was charged with engaging in sexual intercourse with two 14-year-old boys in Phnom Pen. The prosecution case heavily relied on the evidence of the two boys. Due to difficulties in obtaining evidence such as videos and photos in Cambodia, the boys were brought to Australia, and gave evidence in court. However, the magistrate found that although there was prima facie evidence of a crime being committed, the boys’ testimonies were unreliable, and so the charges were dismissed.
Nevertheless, this is extremely unjust and ineffective due to the fact the Magistrate’s decision did not adequately consider the cultural and language factors influencing the content and manner of the boys’ evidence. Firstly, the court system failed to recognise the Australian court was a foreign environment, and the adversarial court system confused the child witnesses, therefore they appeared unreliable. In particular, they assumed that once interpreters were supplied, no further cultural acknowledgment was required.
This case demonstrates that the committal hearings are poorly carried out and special requirements of evidence victims ignored. Consequently, the prosecution cases carried out to punish perpetrators are inadequate and unreliable; as a result the Act as legal measure is ineffective in the area of court procedures. In addition, the CST Act incurs a great predicament in the area of overseas investigation. Thorough overseas investigation is only possible if a ‘Mutual Assistance treaty’ exists between Australia and the country concerned.
If there is no such legislation, like in Africa and India, then the investigation and surveillance powers will need to rely upon the assistance of foreign law enforcement agencies, which limits their ability to obtain evidence. Thus, limited resources make it impossible to prioritise such investigation, which makes the legislation ineffective in achieving justice. Furthermore, Australia has no coercive powers to ensure that witnesses from other nation states attend court to give evidence, and so prosecutions can only proceed with the willingness of the witness.
Lastly, the frequent, recent breach of child prostitution overseas by Australian citizens in itself displays the ineffectiveness of the legislation. Media reports such as “Australian held in Bali on child sex charges” published 8th April 2004, in which “an Australian man working as a teacher in Bali has been arrested and accused of illegally having sex with two teenage boys under a bridge,”5 exemplifies this. Another relevant media report is “Teacher arrested in Indonesia over child sex,” Sydney Morning Herald, August 28th 2006.
An Australian had been arrested in Indonesia for allegedly abusing at least seven children and is suspected of being part of a wider pedophile ring. Such reports evidence that the legal measures put in place to end child prostitution are ineffective, as even though it may have condensed the issue it hasn’t entirely ceased. In conclusion, the human rights issue of child prostitution is poorly addressed on an international level. This is due to the non-binding nature of international law.
Furthermore the legal measures are optionally ratified, thus various countries in the international community have no protection of human rights in regards to the issue of child prostitution. However, in Australia, on a domestic level, the violation of child prostitution in covered by legislation. This legislation is to an extent effective. While breaches still exist, they are limited compared to the worldwide community. Also, the domestic legal measures enforce sanctions, which ultimately make the remedy effective, as there are repercussions that follow the offence.
Bibliography http://www.smh.com.au/articles/2004/01/07/1073437350316.html
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