CHILDREN IN THE CREATIVE PROCESS: INFORMATION FOR ARTISTS AND ARTS ORGANIZATIONS –
Queensland
This information sheet must be read in conjunction with the general information sheet ‘Children in the Creative Process in Australia’ since that fact sheet explains how the various federal laws operate. This information sheet explains how the Queensland 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 Queensland.
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 according to jurisdiction In Queensland, the Child Employment Act 2006 (Qld) (the Act) and the Child Employment Regulation (Qld) (the Regulations) governs work performed by children under 18 years of age.
Children working in the entertainment industry are exempted from some of the general restrictions applying to minimum age and hours. For example, the Regulations state that generally the minimum age for employment is 13 years but these restrictions do not apply to the entertainment industry. In other words, there is no minimum age for children working in the entertainment industry. However to ensure the protection of young children, greater supervisory conditions are stipulated for children working in entertainment(1).
What is Working in the Entertainment Industry?
Most arts related activities would be considered to be part of the entertainment industry. Working in the entertainment industry is defined as working as a performer in advertising or entertainment and includes acting, dancing, miming, singing and modelling. Live entertainment includes theatre, opera, circus entertainment, fashion parade, performing in a shopping center and promotional events. Recorded entertainment includes film, television, radio, photographic modelling, a performance recorded for later entertainment or exhibition and any other entertainment which is not live entertainment.
Am I ‘employing’ a child?
You are the employer of a child if you engage a child, or arrange for a child to perform work at your direction whether the child works for gain or reward or on a voluntary basis. Work covered by the Act and Regulations includes work under a contract for labour only, or substantially for labour only, as well as unpaid work(2).
Parental Consent Form
Written parental consent is required for young or school-aged children to perform work. A school aged child is a child under 16 years old who is required by law to be enrolled for an educational program. A parent’s consent form must be on an approved form. The forms are available to be downloaded from the Department of Employment and Industrial Relations web-site at: http://www.deir.qld.gov.au/. A parent’s consent form is not required if the employer is one of the parents of the child.
Special Circumstances Certificate
The Director-General of the Department of Employment and Industrial Relations may grant a special circumstances certificate to allow a child to work under circumstances where parental consent is not possible or where the child would ordinarily not be allowed to work due to restrictions imposed by the Regulation. A certificate may be granted if the Director-General is satisfied on reasonable grounds that the work will not interfere with the child’s schooling or well-being(3).
Child Employment Guide
The Department of Employment and Industrial Relations has issued a Child Employment Guide (the Guide). The Guide outlines the requirements and restrictions associated with work to be performed by children in both the entertainment and other industries. A copy of the guide must be made available at the child’s place of work and parents of young or school-aged children must be informed of the existence of the guide and provided with a copy if asked(4). Failure to do so is an offence. A copy of the Guide is available from the Department of Employment and Industrial Relations web-site at: http://www.deir.qld.gov.au/pdf/ir/child_employment_guide.pdf.
Nudity and Inappropriate Situations
It is an offence to allow a child under 18 years old to work while nude or wearing sexually provocative clothing. This includes allowing the breasts of a female over 5 years old to be visible. This prohibition does not apply to a child under 12 months old if a parent consents in writing and supervises(5).
A young or school-aged child must not be put into a role or situation that is inappropriate for the child, having regard to the child's age, emotional and psychological development, maturity and sensitivity. In particular they must not be exposed to scenes or situations likely to distress or embarrass the child, be deliberately distressed to obtain a more realistic depiction of an emotional reaction or be present when another person is nude or semi-naked(6). The employer must ensure there are facilities for the child to dress and undress in private(7).
Supervision
Special supervisory conditions are imposed on employers who require or permit young and school aged children to work in the entertainment industry. Children must be supervised directly by a parent or a person with appropriate child-care qualifications. Additionally babies under 12 weeks old must be supervised by a registered nurse or midwife if they are working for more than one hour. It is prohibited to require or permit a baby under 12 weeks old who was born prematurely or who is not in good health to work.
Hours of Work
The hours a child is permitted to work in the entertainment industry varies depending on whether they are involved in a recorded or live performance. The permitted working hours are prescribed in the Regulations and are outlined in the Child Employment Guide (http://www.deir.qld.gov.au/pdf/ir/child_employment_guide.pdf). The restrictions on hours and shifts do not apply to a child working in a family business.
Other Duties
The regulations impose additional duties on employers of young and school aged children in the entertainment industry. These include duties about collection and travel home and requirements to provide food and drink and to provide recreation and rest facilities.
Offences
Failure to obtain written parental permission when required or to comply with any of the duties above is an offence punishable by a fine.
2.Working with Children: Blue Cards
A person intending to work, in a paid or voluntary capacity, or to carry on a business in regulated child-related areas may be required to have a blue card. A blue card is issued by the Commission for Young People and Child Guardian after carrying out a Working with Children Check and determining that a person is eligible to work in the areas of child-related work covered by the Commission for Young People and Child Guardian Act 2000 (Qld) (the “Commission Act”).
What constitutes “regulated child related employment” will include certain arts related activities which are mainly directed to children such as employment in schools, conducting activities in cultural clubs or associations or the private tuition of children. There are certain exemptions that apply under each category of regulated employment and business. For more information about who requires a blue card and any possible applicable exemptions please refer to the Commission’s website at www.bluecard.qld.gov.au .
If you intend to work in a regulated environment such as a school or an association you may need a blue card. Paid employees must have or, have applied for, a Blue Card if they work, or are likely to work, in a regulated environment for at least:
•eight consecutive days; or
•once a week, each week, over four weeks; or
•once a fortnight, each fortnight, over eight weeks; or
•once a month, each month, over six months.
If you operate a business, or employ workers, within a regulated category of the Commission Act (for example, a children’s art school or a children’s dance troupe), you are required to ensure that all non-exempt employees and volunteers have valid blue cards.
Application for blue cards
The employer is responsible for applying for a blue card on behalf of any person who is, as a usual function of their employment, providing regulated child related services or conducting regulated child related activities, regardless of whether the person is a paid employee or volunteer, or whether there is a written agreement to carry out the work. A person carrying on a regulated business must apply for their own blue card as well as being responsible for ensuring that each person working for them has a blue card if required.
An application generally takes 28 days to process where the application is completed in full and there is no police or disciplinary information. Applications for paid employees and persons carrying on a regulated business must be accompanied with the prescribed application fee; however an application for a volunteer or student is processed free of charge.
A paid employee may start working once an application has been lodged. A volunteer or a person carrying on a regulated business must not commence working in regulated child-related activities until the application has been approved and a blue card has been issued.
Blue cards are valid for two years and must be renewed to retain validity. Once a blue card has been issued, it is transferable for work with other child related employers. For example, if an employee already has a blue card for their volunteer work with another organisation they can use the same blue card for their paid employment with your organisation. If a new employee already has a blue card you must check the expiry date and ensure the name and signature on the card matches that of other identification documents provided. You should also complete an “Authorisation to confirm a valid blue card/application” form. This form allows the Commission to advise you of the employee’s current blue card status and entitles you to any relevant notifications concerning the status of the person’s blue card under the Act, for example, if the blue card holder/applicant has a change in their criminal history which is relevant to their child related employment.
For more information on whether a blue card is required in your situation and to download forms see the website for the Commission for Children and Young People and Child Guardian at www.bluecard.qld.gov.au
Disqualified Persons
It is an offence for a disqualified person to apply for a Blue Card. A person is disqualified if they:
•have been convicted of a disqualifying offence (including a child-related sex or pornography offence, or murder of a child)
•are a reportable offender with current reporting obligations
•are subject to a child protection prohibition order, or
•are subject to a disqualification order from a court prohibiting them from applying for, or holding a blue card.
An employer must warn potential applicants that it is an offence for a disqualified person to apply for a blue card. Failure to warn the applicant is also an offence.
Working with Children Check
The Working with Children Check is conducted by the Commission for Children and Young People and Child Guardian to determine whether a person is eligible for a blue card.
The Working with Children Check, also known as the blue card check, is a detailed criminal history checking including:
(a)any charge or conviction for an offence, whether or not a conviction is recorded.
(b)whether a person is a respondent to or subject to an application for a child protection prohibition order, or
(c)disqualification order, or
(d)whether a person is subject to reporting obligations under the Child Protection (Offender Reporting) Act 2004.
The Commission also considers disciplinary information held by certain professional organisations for:
(a)teachers
(b)child care service providers
(c)foster carers
(d)nurses
(e)midwives, and
(f)certain health practitioners
In addition, information from police investigations into allegations of serious child related sexual offences will be taken into account, even if no charges were laid because the child was unwilling or unable to proceed.
Can I apply for a Blue Card if I am looking for work, self employed or a volunteer?
You cannot apply for a blue card unless you have an agreement to work in regulated employment (paid or voluntary) or you are carrying on a prescribed business.
If you are a self-employed artist, a paid employee or a volunteer working with children but are not regulated by the Commission, Act you are unable to apply for a blue card. However if you are required to provide evidence that you have not been found guilty of an offence relating to children, it is possible for Queensland residents to apply for a Police Certificate from any Queensland police station. For more information please see www.police.qld.gov.au.
Risk management Strategy
If you are running a business involving children that is regulated by the Commission Act or you are an employer of regulated employees, you must have a written risk management strategy in place which complies with the minimum requirements specified(8). This strategy must be reviewed annually.The risk management strategy must include the following eight elements:
1.a policy with a statement of commitment to the safety and well-being of children and the protection of children from harm
2.a Code of Conduct for interacting with children and young people
3.recruitment training and management procedures for staff (including appropriate employment screening – ie blue cards and registers of staff who hold blue cards)
4.reporting guidelines and directions for handling disclosures or suspicions of harm
5.consequences of staff not complying with policies
6.policies and procedures for meeting blue card requirements
7.risk management plans for high risk activities and special events, and
8.strategies for communication and support such as
- information for staff, volunteers and parents about policies, procedures and Codes of Conduct, and
- Training manuals and strategies to help staff, volunteers and parents identify risks of harm.
For a more detailed description of the minimum requirements for the written risk management strategy see the website for the Commission for Children and Young People and Child Guardian at http://www.ccypcg.qld.gov.au.
3.Criminal Offences: indecent and obscene material, child exploitation and abuse material
There are a range of offences related to images of children. These can be found in the Queensland Criminal Code(9).
It is on offence to take indecent photographs or record any indecent visual image of a child under 16 years old without a legitimate reason(10).
It is an offence to sell, distribute or publicly exhibit obscene material including books, pictures, photographs, models or “any other object tending to corrupt morals”(11). If the obscene material depicts a child under the age of 16 years old harsher prison sentences may be imposed (up to 10 years if the child depicted is under 12 years old). “Obscene” has not been defined in the Act.
Under the Criminal Code, it is a crime to make, distribute or possess child exploitation material or involve a child in the making of child exploitation material(12). Child exploitation material is defined to include material that describes or depicts a child under 16 years old in a sexual, offensive or demeaning context or being subjected to abuse, cruelty or torture in a way that is likely to cause offence to a reasonable adult(13). Penalties of up to 10 years imprisonment apply. It is a defence to a child exploitation offence if the conduct was for a genuine artistic purpose or for public benefit and the conduct was reasonable in the circumstances. It is also a defence if the material has been classified as something other than RC (Refused Classification) under the Classification (Publications, Films and Computer Games) Act 1995 (Cth)(14).
The Queensland classification legislation prohibits the making, possession, exhibition, sale, distribution or advertising of a child abuse photograph, publication or film(15). Child abuse material is defined as something that depicts or describes a person who is, or who looks like, a child under 16 years (whether the person is engaged in sexual activity or not) in a way that is likely to cause offence to a reasonable adult person(16).
It is an offence to procure a minor (a person under 18 years old) to be any way involved in the creation of an RC publication, photograph or child abuse material or an objectionable film(17).
‘Context’
Despite the legitimate and genuine public interest in preventing the exploitation of children in the production of obscene, child exploitation or child abuse material the broad scope of these provisions mean that artists using or depicting children in their work should be very careful particularly 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 prove consent either by the child or the child’s parents. The fact that the child depicted in a work was not actually the victim of any abuse or cruelty also appears to be irrelevant.
Whether a work is “likely to cause offence to a reasonable adult” may also be difficult to anticipate with certainty. 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.”(18)
Defences
Classification: It is a defence to a charge involving child exploitation material to show that the material has been classified under the Classification (Publications, Films and Computer Games) Act 1995. Classification does not appear to be a defence to charges involving obscene material or the taking of indecent photographs or images of children.
Genuine artistic purpose: it is a defence to a charges involving child exploitation material 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. This however does not appear to be a defence to charges involving obscene material or the taking of indecent photographs or images of children
4.Classification and Censorship
The classification rules and guidelines are Commonwealth legislative instruments. If you want to find out how something is classified please read the general fact sheet on ‘Children in the Creative Process - Australia’. For information on how to apply for classification see the Australian Government Classification website at http://www.classification.gov.au . 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’.
The states and territories are responsible for enforcing the federal classification rules. Enforcement in Queensland is governed by the Classification of Films Act 1991 (Qld), Classifications of Publications Act 1991 (Qld) and the Classification of Computer Games Act 1995 (Qld).
Exhibiting a film in a public place which has not been classified is prohibited and attracts a fine or imprisonment of up to 2 years(19). Possessing, selling or distributing prohibited publications are offences under the Classification of Publications Act 1991. Prohibited publications include publications that have, or would have if classified as category 1 restricted, category 2 restricted or RC classification. Offences relating to publications constituting child abuse material, child exploitation material, indecent photographs and obscene material were discussed in the previous section on criminal offences.
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 Films Classification Officer at the QLD Department of Tourism, Fair Trading and Wine Industry Development. 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 or demonstrating computer games.
(d)The conditions for admission to the screening of films or demonstration of computer games(20).
In Queensland, an organisation cannot apply for a blanket exemption as is possible in some other states. The organisation must apply for an exemption for each individual film for each individual event.
5.Privacy
While there is no general right to privacy in Australia, there are laws which affect the recording or photography of children. In Queensland, 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 places managed by the council such as parks or beaches.
Invasion of Privacy
The Invasion of Privacy Act 1971 (Qld) 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(21). 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 no specific prohibition on the use of optical surveillance devices in the Queensland Act. However if you entered a private house without consent to use or install an optical surveillance device (such as a camera) you may be liable for trespass and the offence of Unlawful entry of a dwelling house(22).
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.
Section 359E of the Queensland Criminal Code makes it an offence to stalk someone in a way that would cause apprehension or fear to reasonably arise in the circumstances(23). "Stalking" includes following a person about, watching or loitering in the vicinity of a person’s home or work or where they visit or doing an intimidating act towards the person, whether or not it involves the threat of violence. It is a defence to stalking if the act was reasonable conduct in the course of the person’s trade, business or occupation.
If you are taking images of children, you should be aware that they may easily become apprehensive or fearful. It is crucial to get permission from the child’s parent or guardian and the child 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 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.Child Employment Regulations 2006 (Qld) Schedule 3
2.Child Employment Act 2006 (Qld), s8.
3.Child Employment Act 2006 (Qld), s12(4).
4.Child Employment Regulations 2006 (Qld), ss8 and 18.
5.Child Employment Act 2006 (Qld).s 8A.
6.Child Employment Regulations 2006 (Qld), s12.
7.Child Employment Regulations 2006 (Qld), s22.
8.Commission for Children and Young People Amendment Regulation (No 1) 2006 (Qld) section 3A
9.The Criminal Code is incorporated into the Criminal Code Act 1899, Schedule 1. Footnotes 9 – 13 refer to the Criminal Code as
embodied in the Criminal Code Act 1899.
10.Criminal Code Act 1899 (Qld) s 210(f).
11.Criminal Code Act 1899 (Qld) ss 228A, 228B, 228C, 228D.
12.Criminal Code Act 1899 (Qld) s 228.
13.Criminal Code Act 1899 (Qld) s 207A.
14.Criminal Code Act 1899 (Qld) s 228E..
15.Classification of Publications Act 1991 (Qld) Part 3; Classification of Films Act 1991 (Qld) ss 41, 42.
16.Classification of Publications Act 1991 (Qld) Part 3; Classification of Films Act 1991 (Qld) s3.
17.Classification of Publications Act 1991 (Qld) s18; Classification of Films Act 1991 (Qld) s43.
18.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.
19.Classification of Films Act 1991 (Qld) s21.
20.Classification of Films Act 1991 (Qld), s56..
21.Invasion of Privacy Act 1971 (Qld) s43.
22.Invasion of Privacy Act 1971 (Qld) s48A.
23.Criminal Code 1899 (Qld) s359B defines stalking.