CHILDREN IN THE CREATIVE PROCESS: INFORMATION FOR ARTISTS AND ARTS ORGANIZATIONS - Australian Capital Territory
This information sheet must be read in conjunction with the general information sheet ‘Children in the Creative Process - Australia’ since that explains how the various federal laws operate. This information sheet explains how the ACT specific laws relate to you as an artist working with children. It includes information about the employment of children, background checks, pornography and obscenity offences and the application of classification legislation in the ACT.
Disclaimer
This fact sheet is provided solely to highlight possible legal issues arising in your work with children as an artist. You should not rely on them as legal advice. You can get legal advice from the Arts Law Centre of Australia (Arts Law) and are welcome to telephone for assistance on (02) 9356 2566 or 1800 221 457. This information sheet is current at the time of writing. Arts Law accepts no liability for losses caused by reliance on any of the materials it publishes.
1.Child employment
The laws relating to child employment vary between individual states and territories. Until 27 February 2009, the employment of children in the ACT will be regulated by the Children and Young People Act 1999 (ACT), referred to hereafter as ‘1999 Act’. On 27 February 2009 the child employment provisions in the Children and Young People Act 2008 (ACT), referred to hereafter as ‘2008 Act’, will commence. This information sheet will outline the current requirements under the 1999 Act and will then outline the requirements that will be introduced by the 2008 Act.
Before 27 February 2009
Are you employing a child?
The provisions of the act apply if you employ a child. Under the 1999 Act, you are the employer of a child if you engage them to take part or assist in a business, trade, calling or occupation carried on for private profit whether or not the child is paid. Note that the requirement that the business is for private profit is not included in the 2008 Act.
Generally children under 15 years old may only be employed to perform light work. Light work under the act includes performing arts such as singing, dancing, playing a musical instrument for a theatre, radio, television or film production and modeling or working as a photographic subject(1). There is also an exception if the child is employed in their family’s business(2).
Interference with health, well being or education
Under the 1999 Act it is an offence to employ a child under 15 years old when they are required to be at school or if it interferes with their health, safety or personal or social development or compromises the ability of the young child to benefit from his or her education. This may be the case, for example, where the hours of work make the child too tired to complete homework or concentrate at school(3).
If a child under 15 years old is going to work for more than 10 hours in a week you must write to the Chief Executive of the Department of Disability, Housing and Community Services at least 7 days before the employment commences stating the nature, hours and duration of the employment and the reasons for employing the child(4).Refer to the department’s web-site at http://dhcs.act.gov.au/contact_us for address and contact numbers.
After 27 February 2009
Are you employing a child?
Under the 2008 Act you are the employer of a child if you engage them under a written or unwritten contract for services whether or not the child is paid and whether or not your business is carried on for private profit(5).
Generally children under 15 years old may only be employed to perform light work(6). Light work will be defined by a regulation which was not yet available at the writing of this information sheet. It is likely that light work will be defined similarly to the 1999 Act and include performing arts such as singing, dancing, playing a musical instrument for a theatre, radio, television or film production and modeling or working as a photographic subject. There is also an exception if the child is employed in their family’s business(7).
Interference with health, well being or education
Under the 2008 Act, it is an offence to employ a child under 15 years old when they are required to be at school or if it interferes with their health, safety or personal or social development or compromises the ability of the young child to benefit from his or her education. This may be the case, for example, where the hours of work make the child too tired to complete homework or concentrate at school.
If a child under 15 years old is going to work for more than 10 hours in a week you must write to the Chief Executive of the Department of Disability, Housing and Community Services at least 7 days before the employment commences(8). Refer to the department’s web-site at http://www.dhcs.act.gov.au/contact_us for address and contact numbers.
Under the 2008 Act the Minister may make Child and Young People Employment Standards. None were made at the time of writing of this information sheet. Compliance with the standards will be mandatory when/if they are made(9).
For information on the current status of the 2008 legislation refer to the web-site for the Office for Children, Youth and Family Support at http://www.dhcs.act.gov.au/ocyfs/legislation.
Schooling issues
Under the Education Act 2004 (ACT) it is an offence for anyone, including a parent and the employer, to allow a child under 15 years old to be employed when they are supposed to be at school. A parent may apply to the Chief Executive of the Department of Education and Training for a certificate to exempt the child from school. However an exemption will only be issued if it is necessary or desirable having regard to the employment opportunity or it is in the best interests of the child(10). If you intend to employ a child during school hours it should be discussed with the parents and school principle.
For more information you can contact the department of Education and Training. Contact details can be found at http://www.det.act.gov.au/about_us/contact_us.
2.Screening for Child Related Employment
Currently there are no legal requirements for people working with children to undertake a police check in the ACT, however, organisations which require employees and/or volunteers to work with children may have their own policies in this regard.
You can apply to the Australian Federal police for National Police Check if you are an ACT resident or seeking employment with the Commonwealth Government. Application forms and information regarding applications are available at http://www.afp.gov.au.
3.Criminal Offences: Child Pornography
Under the Crimes Act 1900 (ACT) it is an offence to use or offer a child under 18 years old for the production of child pornography. Child pornography is defined as anything that is substantially for the sexual arousal or gratification of someone other than the child that represents:
•the sexual parts of a child;
•a child engaged in activity of a sexual nature; or
•someone else engaged in sexual activity in the presence of a child.
Examples of activity of a sexual nature includes real or simulated sexual activity or a striptease. “Represents” is defined to include depiction on film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else. It is also an offence to possess, publish or sell child pornography. Child pornography offences attract a fine or prison sentence (up to 15 years if the child is under 12 years old)(11).
4.Classification and Censorship
For more information about how the Classification Act interacts with your practice as an artist, see the Arts Law fact sheet, entitled ‘Classification and Censorship’ or read further below on ‘Classification’. The classification rules and guidelines are Commonwealth legislative instruments. If you want to find out how something will be classified please read the general fact sheet on ‘Children in the Creative Process - Australia’ for information about how the federal laws apply to classification and censorship.
The states and territories are responsible for enforcing the classification rules and how the rules are enforced in the Australian Capital Territory is covered here. Enforcement of classification rules is governed by the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT).
Exhibiting in a public place or selling a film which has not been classified or has been classified as RC (Refused Classification) is prohibited(12). Selling or delivering an unclassified publication which is required to be submitted for classification is an offence as is selling or delivering a publication that has been classified RC (Refused Classification)(13). If a film, publication or computer game involves children it will receive an RC classification if it
“describe[s] or depict[s] in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not)”(14).
The courts have held that deciding if something is “likely to cause offence to a reasonable adult” involves a “judgment about the reaction of a reasonable adult in a diverse Australian society.”(15)
For information on how to apply for classification see the Australian Government Classification website at http://www.classification.gov.au.
Exemptions for Events
The requirement to have films classified extends to any form of recording where a visual image can be produced, including slides. This would apply, for example, to a multi-media art work. An organisation running an event such as a film festival or exhibition can apply to have particular films exempted from classification. Conditions may be attached to the exemption.
An application should be made by the organisation to the Classification Board. The application must specify the event and include a synopsis of the film for which exemption is sought.
In deciding whether to approve the exemption the following are relevant:
(a)The purpose for which the organisation was formed.
(b)The extent to which the organisation carries on activities of a educational, cultural or artistic nature
(c)The reputation of the organisation in relation to screening films.
(d)The conditions for admission to the screening of films.(16)
Note that an organisation cannot apply for a blanket exemption as is possible in some states. The organisation must apply for an exemption for each individual film.
5.Privacy
Note that while there is no general right to privacy in Australia, there are laws which affect the recording or photography of children. In the Australian Capital Territory, these apply to the surveillance or stalking of another person. In addition, various bylaws made by councils may affect the photography or filming of people in parks or swimming in public, for example.
Surveillance Devices
The Listening Devices Act 1992 (ACT) prohibits the use of a listening device to listen to or record a private conversation where the person is not a party to the conversation. This could include the sound recording facility of a film or video camera. The Act also restricts the communication or publication of information obtained through the use of a listening device without the consent of all the parties.
There is not specific prohibition on the use of optical surveillance devices in the ACT Act. However if you entered a private house to use or install an optical surveillance device (such as a camera) you could be liable to be sued for trespass.
Stalking
While recording images of children in public may not be prohibited, the way in which the images are obtained may constitute an offence such as stalking.
For example, section 35 of the Crimes Act 1900 (ACT) makes it an offence to stalk someone with intent to harass or cause fear or apprehension. You are taken to intend to cause fear or apprehension if you are reckless about whether the conduct is likely to cause such fear or apprehension. "Stalking" includes following a person about, watching, keeping them under surveillance or loitering near a person’s place of residence, work or where they visit.
If you are taking images of children, you should be aware that they may easily become apprehensive or fearful. It is important to get permission from the child’s parent or guardian and the child if appropriate so that no misunderstandings occur.
Bylaws
Many local government authorities and other authorities have bylaws which require a permit to be purchased before engaging in activities such as filming or photography in public places or on their property. The costs of permits vary between the different authorities. Filming of infrastructure such as train stations may also be restricted.
For more information on restrictions on taking photographs in public see the Arts Law Centre’s information sheet “Street Photographers Rights” available at http://www.artslaw.com.au.
You should ensure that you have the necessary permits in place before taking photographs or filming. Be aware that the application process can take weeks in some cases. Contact the local government authority concerned, or other relevant authority, for information on whether a permit is required, how to apply and the costs involved.
Getting legal advice or further information
If you would like advice about whether the above information affects your practise as an artist, please contact the Arts Law Centre of Australia on (02) 9356 2566 or tollfree outside Sydney 1800 221 457. Arts Law’s publications are available at www.artslaw.com.au or by telephoning the number above.
Footnotes:
1.Children and Young People Act 1999 (ACT) s371.
2.Children and Young People Act 1999 (ACT) s372.
3.Children and Young People Act 1999 (ACT) s373.
4.Children and Young People Act 1999 (ACT) s371.
5.Children and Young People Act 2008 (ACT) s781.
6.Children and Young People Act 2008 (ACT) s796.
7.Children and Young People Act 2008 (ACT) s797.
8.Children and Young People Act 1999 (ACT) s371.
9.Children and Young People Act 2008 (ACT) s792.
10.Education Act2004 (ACT) s14.
11.Crimes Act 1900 (ACT) ss 64, 64A.
12.Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) ss7 and 16.
13.Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) s28.
14.Classification Code paragraph 2 item 1(b).
15.Adultshop.Com Ltd v Members of the Classification Review Board [2007] FCA 1871 at [170] upheld in Adultshop.Com Ltd v Members of the Classification Review Board [2008] FCAFC 79.
16.Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) s57.