It seems that there is no end to community fascination with the debate about the ethics and legality of representations of children in art. This has once more been ignited by two concurrent events. One is a move being mooted by the NSW Government to remove the ‘artistic defence’ from the NSW Crimes Act. The other is the current review by the Australia Council for the Arts of its one year old ‘Protocols for working with children in art’.

While on the face of it, the NSW Government appointed Child Pornography Working Party (CPWP)’s recommendation to remove the ‘artistic defence’ may look bad for artists, key arts organisations like the National Association for the Visual Arts (NAVA) and the Arts Law Centre of Australia are seeing it as a possible opportunity to improve the way artists are dealt with by the law. The proposed change would shift the onus to the starting point of the process where a child pornography charge against an artist was being considered by the police and the Director of Public Prosecutions.

NAVA and Arts Law have recommended that the decision should be informed by advice from a panel of art experts who would make an assessment of the ‘artistic merit’ of the work. This would not be a judgment of whether the art was of good or bad quality, but rather whether the person making it was a genuine artist and whether the work’s context, intention and meaning were clearly indicative of whether it was child pornography or not. It was also recommended that securing a rating from the Classification Board should be a complete defence. NAVA was encouraged by the fact that the CPWP acknowledged the need “to remove the defence without infringing on the rights of journalists and artists to depict valid situations involving children.” Productive discussions with the NSW Attorney General’s Department are in progress.

NAVA has consistently spoken in defence of artists. While it has made very clear that it does not in any regard condone the production or consumption of child pornography, it does not want to see artists become the scapegoats for community concern over the widespread availability of this material on the internet and the increasing sexualisation of children in advertising. NAVA is concerned that the current increase in community anxiety over protection of the rights of children against abuse is resulting in the unfair representation of artists as perpetrators. To put things in proportion, it seems that in NSW there has been only one case of the use of the ‘artistic defence’ in a court case, and it was clear that the perpetrator was not an artist. Because of the need for clarity about the broad area of art censorship, NAVA has produced a new publication, the ‘Art Censorship Guide’ available for purchase at www.visualarts.net.au/shop/publications.

While all this is going on, the Australia Council is busy reviewing its child protocols, with public consultation concluded on 5th February. The Council’s stated objective for this review is to understand the impact the Protocols have had on the creation, exhibition and performance of art work involving children and the distribution of images of children in art. The review will also consider the effectiveness of the Protocols in protecting the rights of children throughout the artistic process.

NAVA has recommended that the Australia Council discontinue the Protocols for three key reasons. NAVA knows of no Australian artist ever having been found guilty of the exploitation or harm of children within their art making practice. Existing laws are already wide ranging and artists are bound to abide by them. NAVA’s own experience and the feedback it’s getting from artists and organisations is that the Protocols add an unnecessary and administratively unjustified level of difficulty, cost and anxiety to the industry without any demonstrable benefit in the protection of children from harm. This is adversely impacting on child imagery being produced and made available to the public.

However, should the Protocols remain in force, NAVA has recommended a series of changes to make them clearer and more logical. Evidence suggests that the Protocols are not well understood by the arts community. Because the Australia Council’s stated aim is “to help artists and arts organisations understand their legal obligations”, a comprehensive education campaign has been recommended for artists, artworkers and funding bodies on the implications of both the Protocols and the laws in each state and territory.

According to its charter, the Australia Council has an obligation to work with the Commonwealth Government to foster a strong supporting climate for the arts in Australia. NAVA believes this should include countering any spurious public claims in relation to artists and art making. It has therefore been proposed that the Council work co-operatively with key arts organisations, the government and relevant authorities to find ways to strike a better balance between community concerns and protection of the working environment and incomes of artists.

- Tamara Winikoff is the Executive Director of the National Association for the Visual Arts’ (NAVA).