CHILDREN IN THE CREATIVE PROCESS: INFORMATION FOR ARTISTS AND ARTS ORGANISATIONS: Victoria
This information sheet must be read in conjunction with ‘Children in the Creative Process - Australia’ since that fact sheet explains how the various federal laws operate. This information sheet explains how the Victoria 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 Victoria.
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 depending on state or territory jurisdiction. In Victoria, the Child Employment Act 2003 (Vic) (Child Employment Act) governs the employment of children under 15 years of age. This Act requires you to apply to the Department of Innovation, Industry and Regional Development for a “permit” in order to employ a child under the age of 15 years to participate in any form of entertainment(1). Employing a child in entertainment without a permit is an offence.
Entertainment is defined to include singing, dancing or acting; playing a musical instrument; appearing in a radio, television, film or similar program (but not a news item); modelling; appearing in promotional events or advertising; working as a photographic subject, whether still or moving; working in a circus or other live entertainment; taking part in a performance that is recorded for use in a subsequent entertainment; and performing in a shopping centre(2).
When am I employing a child?
You will be regarded as employing a child if the child takes part in any business, trade or occupation carried on for profit, irrespective of whether the child is paid or not and regardless of the type of arrangement you have with the child. For example, you will be an employer of a child who sings in your restaurant in return for a meal and tips or if you use a child as a photographic model in return for copies of photos. Children participating in religious services, sporting activities or occasional school projects or entertainments to benefit their schools or performing for non-profit organizations are not regarded as being employed(3).
There is no minimum age limit for children employed in entertainment. However it is an offence to employ a school-age child during school hours without applying to the Minister for an exemption from attendance at school under section 2.1.5 of the Education and Training Reform Act 2006 (Education Act).
Child employment permit
It is an offence under the Child Employment Act to employ a child without a permit. The child’s parent or guardian has to apply for the permit. The application must be signed by the child’s school and the employer and must include statutory declarations and consents to police checks by each person who will supervise or have control of the child during the entertainment employment. It must be obtained before the employment starts and the process can take a few weeks while the necessary police checks are obtained. While there is no cost for the permit, the applicant must bear the cost of any police checks required ($30 per check as at August 2008). Section 19 specifies obligations in respect of supervision. Other provisions concerning rest breaks and hours worked do not apply to children employed in entertainment(4).
A permit will only be granted after clear police checks are obtained and the Secretary is satisfied that “the health, education and moral and material welfare of the child will not suffer from the proposed employment; … the child is fit to be engaged in the proposed employment; and … the child will not be subjected to any form of exploitation…”(5). The Secretary sends a copy of the permit to the employer and, if the employment will occur during school time, the child’s school. It is valid for the period specified (no more than 12 months).
The Mandatory Code
Employers must comply with the Mandatory Code (6)(Code) which came into operation on 1 November 2005. A copy of the Code and a Guide to the Employment of Children in the Entertainment Industry is available on the Business Victoria website: http://www.business.vic.gov.au. The Code makes it an offence for an employer to contravene the conditions of a permit, or to employ a child in entertainment without a permit.(7) It is also an offence for a parent to allow a child to be employed without the required permit . Under the Code, children cannot be employed naked, unless they are under the age of 12 months. If they are less than a year old, the Code still requires that their parents are present and that they have consented to the photography.
2. Working with Children: Background Checks
Part 2 of the Working With Children Act(8) prohibits people from engaging or volunteering in child-related employment without applying for and providing a valid assessment notice (also called a Working With Children Check or WWC). The system is being phased in over 5 years from 2006 and requires not those seeking employment but those currently in child employment to obtain a WWC(9).
What constitutes “child related employment”?
This is defined to include contract work, voluntary work or practical training in certain specified businesses and which usually involves, or is likely usually to involve, regular direct contact with a child without direct supervision. Several of the businesses specified could include certain arts related activities such as employment in schools or cultural clubs or associations with a significant child membership, community services, commercial entertainment or photography services specifically for children; and the tuition of children .
If you intend to work in a business that falls within the definition of “child related employment such as an art school, or children’s dance troupe or choir, you are obliged to apply for a WWC. Forms are available from Australia Post outlets in Victoria and can also be lodged at the Post Office. A fee is payable ($73.90 as at August 2008). A copy of the results of the check will be sent to your prospective employer or employment agency. There are a number of exemptions from the requirement to obtain a WWC including parents volunteering in relation to activities in which their own children normally participate, teachers registered under the Education Act and children.
The WWC website of the Victorian Department of Justice contains details about the requirements of the Education Act and the application process: see http://www.justice.vic.gov.au/workingwithchildren.
The Victoria Police also provide a separate service to individuals and organizations in Victoria who wish to obtain national police certificates for employment, voluntary work and occupation-related licensing or registration purposes. This may be helpful if your business or proposed employment involves children but isn’t strictly within the definition of ‘child-related employment’ and a background check is still desirable or required by the employer. Details and forms are available on its website www.police.vic.gov.au.
3. Criminal Offences: Pornography and Obscenity
There are a number of Victorian 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 were highlighted in recent public debate in Australia.
Child Pornography
Division 13 of the Crimes Act 1958 (Vic) makes it an offence to make, produce or knowingly possess child pornography or to invite, procure or otherwise cause a person under 18 to be involved in child pornography(10).
What is it?
The Crimes Act defines ‘child pornography’ as a film, photograph, publication (which, under the Classification (Publications, Films And Computer Games) Act 1995 (Cth)(Classification Act) includes written or pictorial matter) or computer game that describes or depicts a person who is, or appears to be, under the age of 18 engaging in sexual activity or depicted in an indecent sexual manner or context. It may include real children and/or real events or may be the product of imagination and captures both visual and written expressions of thought and imagination(11). It seems that material depicting a child in a sexual context that is not an ‘indecent’ sexual context is not child pornography. Any material depicting minors who appear to be engaging in sexual activity falls within the definition of child pornography.
“Indecent sexual context”
These provisions are broad, and artists using or depicting children in their work should be aware of them particularly where there is any sexual connotation. The extent to which an artwork shows a child “in an indecent sexual context” 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.
Defences
There are limited defences to child pornography charges in Victoria. It is a defence to the above charges to show that the film, published photograph or computer game has been classified, or would be classified under the Classification Act other than RC or X or X 18+.
‘Artistic Merit’
If the child pornography shows a person who appears to be under 18 but is in fact 18 or over, it is a defence to a charge of possession if the material possesses ‘artistic merit’, or is for a genuine medical, legal, scientific or educational purposes. The artistic merit defence is not available to a charge of making, or procuring minors to participate in, child pornography and is not available if the person depicted in the material is, in fact, under 18(12).
Performances
Child pornography is concerned with materials such as films and photos (copyright works). Performances rather than works are the focus of section 70AC of the Crimes Act which makes it an offence punishable by up to 10 years imprisonment to invite, procure or cause a person under the age of 18 years to be in any way involved in a “live performance that is, or could reasonably be considered to be, for the sexual arousal or sexual gratification of any person” in circumstances where there is payment or reward to the minor or to any other person in respect of the performance. It is not an offence if there is no payment or reward (although if the performance were recorded, it may constitute the making of child pornography).
Obscenity
Various pieces of legislation deal with material which might be considered obscene. The Summary Offences Act 1966 (Vic) makes it an offence to write, draw, exhibit or display obscene or indecent words, figures or representations in or near a public place or within view or hearing of any person passing there(13). In addition the Classification (Publications) Enforcement Act 1995 (Vic) makes in at offence to use an on-line information service to publish or transmit child pornography or to publish ‘objectionable material’(14) (which describes or depicts a person who is or looks like a minor engaging in sexual activity or depicted in an indecent sexual manner or context). 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’ and read further below.
4. Classification and Censorship
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 Victoria is covered here.
In Victoria, the Classification Act says that selling or exhibiting a film which has not been classified, or which has been refused classification (RC) or is X 18+, will attract a penalty of up to two years imprisonment.
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 multi-media art work. Under Victorian 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(15). 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.
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.(16)
Note that the exemption does not apply to publications so the organisation will still need to apply for classification of a publication (for example a exhibition catalogue) that is likely to attract a Category 1 restricted, Category 2 restricted or RC classification.
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 Victoria, 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, for example.
Surveillance Devices
Surveillance device legislation is aimed at preventing the unauthorized 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 if required.
The Surveillance Devices Act 1999 (Vic) (Surveillance Devices Act) prohibits the installation, use and maintenance of listening devices and optical surveillance devices to record private activities without the express or implied consent of each party to that activity. “Private activity” does not include an activity carried on outside a building or in circumstances where the parties ought reasonably expect it would be observed(17). 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 hand-held still or video camera. The Surveillance Devices Act applies even if you and the surveillance device are on public or your own property.
Knowingly publishing or communicating a recording or report of private conversation or activity which results from the use of a surveillance device is also prohibited (18) and attracts a fine or up to 2 years imprisonment(19).
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 the Crimes Act 1958 (Vic) s21A makes stalking an offence with a penalty of up to 10 years imprisonment. Stalking is widely defined and includes following the victim, publishing material on the internet relating to the victim, entering or loitering outside the victim’s place of business or residence or keeping the victim under surveillance in a way that could reasonably be expected to arouse fear or apprehension for their safety. You may be liable if you have the intention to arouse apprehension or fear or if, in the circumstance, you ought to have understood that your actions were likely to cause apprehension or fear.
If you are taking images of children, you should be aware that they may easily become apprehensive or fearful. You should therefore consider getting 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 and photographing infrastructure such as railways may also be restricted. For example Connex Melbourne Trains requires all photographers, even amateur photographers, to apply for a permit before filming or taking photographs on their property. 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.
The Arts Law Centre of Australia has been assisted by the Australian Government through the Australia Council, its arts funding and advisory body.
Footnotes
1.Child Employment Act 2003 (Vic) section 27
2.Id section 3
3.Id section 4
4.Id section 28
5.Id section 16
6.Id section 32
7.Id sections 9. 17 and 23.
8.Id section 33
9.Working with Children Act 2005 - SECT 9
10.Crimes Act 1958 (Vic) sections 68-70
11.R v Quick [2004] VSC 270
12.Crimes Act 1958 (Vic) ss 70(2)(b), and s70(3).
13.Summary Offences Act 1996 (Vic) s17(1)(b).
14.Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) ss 57 and 57A.
15.Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) s64(2).
16.Classification (Publications, Film and Computer Games) (Enforcement) Act 1995 (Vic) s66A.
17.Surveillance Devices Act 1999 (Vic) s3..
18.Surveillance Devices Act 1999 (Vic), s11.
19.Surveillance Devices Act 1999 (Vic) ss6 and 7.