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12 January 2010
ARTS LAW CENTRE OF AUSTRALIA
ACN 002 706 256 / ABN 002 706 256
Change of Approach to Artistic Merit in Child
Pornography Laws
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 Sunday
10 January, the NSW Attorney General released the report of the Child Pornography Working Party
(CPWP). Ayres said “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”.
“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. Robyn Ayres says “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”.
For further information please contact:
Robyn Ayres, Executive Director, Arts Law Centre of Australia 02 9356 2566; 0404 054 639
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