The Arts Law Centre of Australia’s Executive Director, Robyn Ayres says “the likely impact of the proposed changes to the NSW child pornography laws on artists is unclear at this stage”.
“On the one hand the CPWP recommends that the defence of artistic merit be removed from the NSW Crimes Act. However when a court is considering the questions of whether material is child pornography and if it is offensive the court must consider the literary, artistic or educational merit (if any) of the material,” she said.
“The court must also consider standards of decency and morality as well as the general character of the material including if it is of a medical, legal or scientific character. If the court still concludes that the material is child pornography after taking these matters into consideration and hearing expert evidence about such matters, then there is no artistic merit defence”.
Whilst the changes would harmonise NSW with the way the Commonwealth and territories approach child pornography cases, it will mean NSW is out of sync with Victoria, Tasmania, WA and Queensland where the criminal laws provide an artistic merit defence.
Ayres says “A potential positive impact is that the prosecuting authorities will need to turn their mind immediately to the question of whether the work was for a genuine artistic purpose before charging anyone with a child pornography offence. With proper training, hopefully this will overcome heavy handed behaviour by the police in seizing artworks which end up being given a G or PG rating, as happened with Bill Henson’s work.”
Robyn Ayres also said “Subsequent to the Bill Henson debate, the Australia Council developed protocols aimed at helping artists and arts organisations understand the law when working with children. These protocols have effectively added a layer of complexity which is unnecessary and reach beyond the requirements of the law.”
“The protocols appear to have had the greatest impact on arts organisations and have caused unfortunate results. For example, an arts organisation was not able to publish a very innocent photo of a small child with a portion of her chest showing without having the image classified. Classification is a costly and time consuming process which is prohibitive and many artists or arts organisations will simply decide to withdraw the work rather than classify it because of this. These requirements are adding both administrative and financial burdens to arts organisations and galleries as well as causing delays to the publication or exhibition of works and are in addition to the normal legal requirements”.
The CPWP Report also recommends the implementation of uniform scale of seriousness in categorising various types of child pornography.
“Not only will this provide guidance to the courts but also to the police as to what sort of material falls within the definition of child pornography and what doesn’t. Hopefully this will reduce the likelihood of situations arising where innocent material is treated as child pornography”.
Source: Arts Law Centre of Australia