CHILDREN IN THE CREATIVE PROCESS: INFORMATION FOR ARTISTS AND ARTS ORGANISATIONS: New South Wales
This information sheet must be read in conjunction with ‘Children in the Creative Process in Australia’ since that fact sheet explains how the various federal laws operate. This information sheet explains how the NSW 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 applications of classification legislation in NSW.
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 law relating to child employment varies between states and territories. In New South Wales, the Children and Young Persons (Care and Protection) Act 1998 (the CYP Act) governs the employment of children under 15 years of age. The CYP Act requires you to apply to the Office for Children – Children’s Guardian (OCCG) for an ‘employer’s authority’ in order to employ a child under the age of 15 years to participate in still photographic sessions, to take part in an entertainment or exhibition or to take part in a performance which is filmed or recorded for use in a subsequent entertainment or exhibition(1). The CYP Act does not define what ‘entertainment’ or ‘exhibition’ mean.
Am I ‘employing’ a child?
You will be regarded as ‘employing’ a child if you provide any material benefit (including but not limited to money) to the child or another person for example, their parent, in respect of services rendered by the child. This could be a one off monetary payment, or a non-monetary benefit such as copies of photographs of the child or tickets to performances.
How much does employment authority cost?
The current fee for an authority is $1100 in respect of employment in an entertainment, exhibition or performance and $484 in respect of still photographic sessions. The fees may be reduced where the employer is working with less than 5 children over a period of less than one month(2). The fee may also be reduced if ‘the applicant displays a proven commitment to the principles of the Code of Practice’ (see the discussion of the Code below).
An authority will only be granted where the applicant can establish that the proposed employment will not put the child at risk of physical or emotional harm, or sexual abuse. A condition of the grant of the authority is that the employer must comply with Code of Practice contained in the Children and Young Persons (Care and Protection – Child Employment) Regulations 2005 (the Code), a copy of which must be given to the child’s parents. The Code imposes obligations including record keeping, insurance, notification requirements, hours of work and supervision. The Code states that children employed to take part in photographic sessions, entertainments, exhibitions or recorded performances must not be cast in inappropriate roles or situations given the child’s age, maturity, emotional or psychological development and sensitivity. Children should not be intentionally distressed. Employment of children when they are naked or when any other person is naked is specifically prohibited. There are special rules concerning babies less than 12 weeks old and children under 3. The Code and a Guide to Child Employment Requirements in NSW are available on the OCCG website at http://www.kidsguardian.nsw.gov.au/children-s-employment. The authority remains in force for 12 months unless revoked for non-compliance or breach.
Exemptions
There are some circumstances where an employer is exempt from the requirement to obtain an authority. If the child is more than 10 years old, no authority is required if the employment is outside school hours and no more than 10 hours a week. There are also limited exemptions relating to fundraising appeals and occasional entertainments or exhibitions where the net proceeds go to charity. A written exemption can also be obtained from the OCCG(3), however it is rare that such an application or exemption is made this way.
Offences
The CYP Act makes it an offence to:
1.employ, or allow a child to be employed, without an appropriate authority or in breach of the conditions of an authority; or to
2.cause or allow a child under the age of 15 to take part in any employment which puts the child's ‘physical or emotional well being’ at risk(4).
The term ‘physical and emotional wellbeing’ is not defined nor is there any guidance as to when a child will be considered at risk. Artists should consider risk on a case by case basis, and if there is any doubt about whether activities may constitute an offence, should seek legal advice. It is the employer’s responsibility to ensure these assessments to ensure that they are compliant with the Code. Technically, having an employer’s authority does not protect you from prosecution although if you have obtained an authority, it is less likely that your project would be considered to place the child at risk.
2.Working with Children Checks
If you are employing someone for ‘child-related employment’ you are required to apply for a ‘Working With Children Check’ (WWC). The WWC Check comprises firstly, the background check and secondly, the exclusion of prohibited persons. The WWC Check will be conducted by NSW Commission for Children and Young People and by other ‘approved screening agencies’. The Check only relates to people whose work is included is ‘child-related employment’(5). To find out more about applying for a WWC Check, go to www.kids.nsw.gov.au.
What is ‘child related employment’?
Child-related employment means any employment means:
(a) any employment listed in section 33 of the Commission for Children and Young People Act 1998 (NSW) (this is a broad and varied list including employment in schools, for private tuition etc)
(b) that primarily involves direct contact with children
(c) where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment”
You should contact the Commission for Children and Young People to enquire about whether it is likely that your employment falls within the ambit of these regulations, since it may be the case that your practice falls outside the scope of this legislation and that you are not required to obtain a WWC Check.
Who can get a WWC Check?
The WWC Check is only available to employers who are required by the Commission for Children and Act to undertake background checks. Artists seeking employment or doing voluntary work in businesses involving children, self employed artists who work with children and others who wish to demonstrate their suitability and absence of a criminal record can have difficulty obtaining such evidence.
Background checking:
This is a check of the relevant records of a potential employee and includes:
(a) a check of the criminal record of the person, and any relevant apprehended violence or child protection orders made against the person,
(b) a probity check relating to the previous employment or other activities of the person,
(c) an assessment of the risk to children arising from anything disclosed by such a check,
(d) the disclosure of the results of such checks and assessments to the person responsible for making the employment decision.(6)
Prohibited Employment
The Commission for Children and Young People Act 1998 (NSW) prohibits people who have been convicted of certain sex offences or child related personal violence offences engaging in child related employment (including self-employment). It is an offence both to seek such employment and to employ such persons. If you operate a business that falls within the definition of ‘child related employment’ such as an art school, or children’s dance troupe or choir, it is vital that you establish procedures to background check all employees to ensure that they are not prohibited employees under the Act.
Self employed artists and volunteers
If you are a self employed artist or volunteer working with children and wish to obtain some kind of document which states that you have not been found guilty of an offence relating to children, it is possible to get a police check. NSW residents aged 16 and above can apply to the NSW Police Department for a National Criminal History Record Check (NCHRC) for visa, adoption, specified licensing purposes and paid employment where a community benefit is achieved. Further information on NCHRC is available at www.police.nsw.gov.au.
The Guidelines and the WWC procedure can be found at the Commission’s website http://www.kids.nsw.gov.au/kids/check.cfm.
3.Criminal offences: Physical, emotional or developmental harm; Child pornography and obscenity
There are a number of New South Wales laws which make it an offence to use or deal with children in a way which is sexually exploitative or physically or emotionally damaging. The difficulties of identifying the limits of what is and isn’t pornographic material and what is and isn’t a genuine artistic purpose are highlighted in recent public debate in Australia.
Physical, emotional or developmental harm
The Children and Young Persons (Care and Protection) Act 1998 makes it an offence to intentionally take action which results or is likely to result in:
(a) the physical injury or sexual abuse of a child or young person, or
(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or
(c) the physical development or health of a child or young person being significantly harmed(7).
This offence is not restricted to circumstances where there is an employment relationship and would apply to the participation of a child in a still photographic session, performance or film even if the child did not receive any monetary or other material benefit.
Child pornography
Using a child under the age of 18 years for the purposes of the production of pornographic material is an offence under the Crimes Act 1900 (NSW) carrying a maximum penalty of 14 years imprisonment(8). A separate offence prohibits the production or dissemination of child pornography.
What is it?
Child pornography is defined in the Crimes Act 1900 (NSW) as material that depicts or describes a person under (or apparently under) the age of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context, or
(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context) in a manner that would in all the circumstances cause offence to reasonable persons(9).
It may include real children or events or may be the product of imagination and captures both visual and written expressions of thought and imagination(10).
Sexual context
The broad scope of the provisions relating to child pornography mean that artists using or depicting children in their work should be very careful where sexual connotations or themes of violence or abuse are involved. The extent to which an artwork shows a child ‘in a sexual context’ or as a victim of cruelty is a subjective assessment on which opinions may vary widely. It is not a defence to point to consent either by the child or the child’s parents. Indeed, a parent who permits a child to be used for pornographic purposes is also guilty of an offence. The fact that the child depicted in a work was not actually the victim of any abuse or cruelty also appears to be irrelevant.
Defences
Classification: It is a defence to a charge of producing child pornography to show that the material has been classified other than RC (Refused Classification) under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) but classification of the material is not a defence to a charge of using children for pornographic purposes under section 91G of the Crimes Act 1900 (NSW). Note that only films, computer games and publications are eligible for classification.
Genuine artistic purpose: it is a defence to a charge of producing child pornography if it can be established that the circumstances in which the artist produced the work demonstrate that he or she acted for a genuine artistic purpose and that the artist’s conduct was reasonable for that purpose. That defence is not available however to a charge of using a child for pornographic purposes. In October 2008 the NSW Government announced that it intends to remove this defence.
Summary offences
There are various other offences which are not specifically directed at children, for example the Summary Offences Act 1988 (NSW) prohibits the filming of another person who is undressed, engaged in a private act or otherwise does not consent to being filmed where the film is for the purpose of providing sexual arousal or gratification. It is also an offence for a person to conduct themselves in an ‘offensive manner’ in or near a public school.
Obscenity / indecency
Various pieces of legislation deal with material which might be considered obscene. The Crimes Act 1900 (NSW) provides that a person who publishes an ‘indecent article’ is guilty of an offence. The Act does not define ‘indecent article’. Generally speaking ‘indecency’ or ‘obscenity’ could be a contravention of accepted society standards of decency. This question must be determined by a judge or magistrate. The Crimes Act makes the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) admissible as evidence. An offence for filming for indecent purposes is also comprised in the Summary Offences Act 1988 (NSW). This applies where a person films someone else for the purposes of providing sexual gratification to themselves or a third person, and the person being filmed is naked or doing something private, could reasonably expect privacy and has not consented to being filmed.
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 New South Wales is covered here.
Enforcement of classification rules is governed by the Classification (Publications, Film and Computer Games) (Enforcement) Act 1995 (NSW). Selling or exhibiting a film or computer game which has not been classified or which has been classified as Refused Classification (RC) or X 18+ is prohibited attracting a penalty including imprisonment for up to 12 months(11). It is an offence for a person to sell, deliver, show or leave in a public place, a publication which has been refused classification. It is an offence to sell or display for sale a submittable publication – that is, one which is likely to attract a Category 1 restricted, Category 2 restricted or RC classification.
Exemptions for galleries and film festivals
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 multimedia artwork. Under New South Wales law an organisation such as an art gallery can apply in writing to the Classification Board for an exemption so that it does not have to apply for all its exhibits to be classified. An organisation running an event such as a film festival can also apply to have particular films exempted from classification. Conditions may be attached to the exemption.
Note that the exemption does not apply to publications so the organisation will still need to apply for classification of a publication (for example an exhibition catalogue) that may be a ‘submittable publication’ – that is, one which is likely to attract a Category 1 restricted, Category 2 restricted or RC classification.
5.Privacy
While there is no general right to privacy in Australia, there are laws which affect the recording or photography of children. In New South Wales, 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 at the beach.
Children in protection or in the criminal justice system
Various legislation protects the identity of children involved in court proceedings or who are under protection.
The Children and Young Persons (Care and Protection) Act 1998 (NSW) prohibits the publication of the ‘name’ of children involved in proceedings in the Children’s Court or who are involved in non-court proceedings(12). ‘Name’ is defined to include any picture or material that is likely to lead to the identification of the child. Publishing or broadcasting such information is an offence which can attract a fine or up to 2 years imprisonment.
The Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication of the name of a person involved in criminal proceedings (including as a witness) who was a child at the time of the offence(13). Contravention of the Act is an offence which can attract a fine or up to 12 months imprisonment.
The Family Law Act 1975 (Cth) has a more general prohibition in relation to any person who is a party, related to or associated with a party, or is a witness to proceedings(14). A contravention is an indictable offence.
The extent of the prohibitions vary, and in most cases the legislation permits, or a judge may permit, publication in certain circumstances.
Surveillance devices
Surveillance device legislation is aimed at preventing the unauthorised recording of people’s private activity. The legislation applies equally to children and adults. You should be aware of how the legislation operates and get permission for using surveillance devices (including handheld cameras) if required.
The Surveillance Devices Act 2007 (NSW) regulates the installation, use, maintenance and retrieval of surveillance devices. The act prohibits the use of a listening device to record private conversations(15). Entry onto private property or interference with a vehicle for the purpose of installing, using or maintaining an ‘optical surveillance device’ is prohibited without the express or implied consent of the owner or occupier or the person in lawful control of the vehicle(16). An ‘optical surveillance device’ is defined as a device capable of being used to record visually or observe an activity. This definition could include a handheld still or video camera. Unauthorised installation, use or maintenance attracts a fine or up to 5 years imprisonment.
The Surveillance Devices Act also restricts the possession, use, publication and communication of information obtained through the use of surveillance devices in contravention of the act(17). Possession, publication or communication of unauthorised recordings can attract a fine or up to up to 5 years imprisonment.
Stalking
While recording images of children in public may not be prohibited, the way in which the images are taken may constitute an offence such as stalking.
For example section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) makes it an offence to stalk or intimidate someone with intent to cause fear of physical or mental harm or if you know the conduct is likely to cause such fear. ‘Stalking’ includes following a person about, watching or frequenting the vicinity of a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.
The Crimes Act 1900 (NSW) also makes it an offence punishable with imprisonment to be in or near a building with intent to peep or pry upon another person(18).
Bylaws and site specific acts
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 council property. The costs of permits vary between the different authorities. Filming of infrastructure such as train stations may also be restricted.For example, the Sydney Harbour Foreshore Authority Regulation 2006 (NSW) prohibits a person from using a camera for a commercial purpose in a ‘public area’ without the Authority’s permission. 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 relevant local government authority, 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 Persons (Care and Protection) Act 1998 (NSW) Section 223, reg 5.
2.Children and Young Persons (Care and Protection – Child Employment) Regulations 1995 (NSW) reg 8, as at August 2008.
3.Children and Young Persons (Care and Protection) Act 1998 (NSW) section 224
4.Children and Young Persons (Care and Protection) Act 1998 (NSW) section 222.
5.Commission for Children and Young People Act 1998 (NSW) section 33
6.Commission for Children and Young People Act 1998 (NSW) section 34
7.Children and Young Persons (Care and Protection) Act 1998 (NSW) secrtion 227
8.Crimes Act 1900 (NSW) section 91G
9.Crimes Act 1900 (NSW section 91H
10.R v Quick [2004] VSC 270
11.Classification (Publications, Film and Computer Games) Enforcement Act 1995 (NSW) s6.
12.Children (Criminal Proceedings) Act 1987 (NSW) s 11.
13.Children and Young Persons (Care and Protection) Act 1998 (NSW) s 105.
14.Family Law Act 1975 (Cth) s 121.
15.Surveillance Devices Act 2007 (NSW), s7.
16.Surveillance Devices Act 2007 (NSW), s8.
17.Crimes Act 1900 (NSW) s547C.
18.Surveillance Devices Act 2007 (NSW), ss11, 12.