The plan this year to remove the artistic defence from the New South Wales proposed legislation on child abuse, which includes child pornography and exploitation, is not particularly about censoring artists. In fact, the Australia Council for the Arts believes that the proposal, which will harmonise NSW laws with the Commonwealth laws on the definitions of child pornography, has the potential to be advantageous to genuine artistic expression.
Mention art and pornography together, and people immediately position themselves at opposite ends of the room.
These polarising positions are not helpful. The Australia Council defends the freedom of artistic expression; this is a very important part of our society. We celebrate that artists have a social impact and, often, their art and comment express both majority and, importantly, minority community views. In other words, artists are a critical part of our societal dialogue - most especially in times when community concerns are being clarified. And artists, as part of our community, are also concerned about community issues, such as child abuse.
This proposal from a working party set up by the NSW Attorney-General actually has the potential to fortify this right of artistic expression by taking it away from the would-be child abusers and pornographers. The Australia Council, with Arts Law and National Association of Visual Artists, met in January with representatives from the A-G’s office and the working group to discuss a number of concerns. It was clear from our discussion that the target of the legislation is the producers of child pornography and its users, rather than artists - including those artists producing challenging or controversial work.
Our challenge is to use this opportunity to better define the law so that the rights of artistic expression are better protected. The NSW Cabinet is considering the proposal in February.
A clear definition of artistic merit/intent is critically important given that it is proposed that this definition distinguish a pornographer from an artist. Both merit and intention must be considered. Merit should not be just about good or bad art. Intention should be about genuine artistic motives. Both should provide a clear delineation between the artist and the child pornographer.
Also, it is important that police and public prosecutors have guidelines and training to make these same distinctions in their day-to-day work. The artistic community has a role to play in helping police and prosecutors develop clear guidelines concerning artistic intent to allow law enforcers to better target the real child abusers. The Australia Council would also like clarification of the role of the Classifications Board in evaluating and rating material for use in prosecution or as a defence.
And, even with the proposed changes, we still need a far better alignment of federal and state definitions of child abuse and pornography, and more consistency in ages of consent. These differences complicate the issue and make it difficult for artists to understand their rights and obligations. Artists working across Australia will welcome the NSW proposal to move to some uniformity of definition and, indeed, any action which better targets child abuse, especially across the frontiers of cyberspace.
While the freedom of artistic expression is important to preserve, it comes with responsibilities. In this time of heightened concern for our children, artists will inevitably face more scrutiny when they deal with such sensitive issues. This will come as no surprise to them, since they are members of the same community.
A year ago, at the request of the Australian Government, the Australia Council developed protocols to define the process which Council-funded artists should follow when working with children. The protocols were not intended to stop controversial work but rather provide guidelines for artists, much as those existing now for other professions working with children.
The two basic principles are that artists should know and follow existing laws, and obtain appropriate consents when working with children, or exhibiting or distributing images of them.
While Arts Law has declared these requirements burdensome, I hardly think that understanding and following the law and getting permissions is too onerous a task. Based on the Australia Council’s experience over the first year of these protocols, it appears that artists have had little difficulty in conforming to them. Indeed, the performing arts community have long lived with such practices.
As promised, the Council has just begun an external review of these protocols, consulting with arts organisations across Australia about the impact of the protocols on the creation, exhibition/performance and distribution of art. We’re naturally interested if there is any real evidence that artists are self censoring or not applying for grants as a result of these protocol requirements. Additionally, we are concerned about the impact of consents and classifications on the costs and delivery of exhibitions.
State arts agencies have shown much interest in our protocols and they too will have informed feedback. The protocols were a key reference in the working party report, so it is reassuring that the voice of arts agencies is being heard.
The Australia Council on so many other fronts is committed to building arts opportunities and creativity for young people. Like artists themselves, we have the same commitment to ensure children are protected from abuse and exploitation.