On 10 March 2010, the NSW Government introduced the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010 ('Bill') into Parliament. If passed, the Bill will amend the Crimes Act 1900 ('Act') and remove the current 'artistic purpose defence' in that legislation. Despite initial appearances, Arts Law holds the view that this change could be a positive one, but the devil is in the detail so read on!
Background
In October 2007 the NSW Attorney General requested that the NSW Sentencing Council examine penalties relating to sexual offences. The Council’s interim report was released in October 2008 and amongst other things recommended the removal of the artistic purpose defence from s.91G of the Crimes Act 1900 (NSW). This defence came under scrutiny in light of the Bill Henson exhibition featuring images of naked pre-pubescent children. Although Henson was never charged if the matter had gone to court the question of artistic purpose may have been relevant to his defence.
The October 2008 report led the NSW Attorney General to set up the Child Pornography Working Party (CPWP) to look at the recommended changes to the Act. The CPWP released their Report of the Child Pornography Working Party ('Report') on 10 January 2010 which looks at the recommendation of removal of the artistic purposes defence. This article summarises the recommendations made by the CPWP relevant to artists and arts organisations. One recommendation is that rather than looking at the 'artistic purpose' as a defence, there is an upfront consideration of whether the material is child pornography to begin with.
What is the current definition of child pornography in NSW?
Child pornography is defined under s.91H Crimes Amendment (Sexual Offences) Act (NSW) as "material that depicts or describes (or appears to depict or describe) in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be a child):
- engaged in sexual activity, or
- in a sexual context, or
- as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)."
Where does the 'genuine artistic purpose' defence currently fit in NSW?
'Genuine artistic purpose' is a defence to a charge of the production, dissemination or possession of child pornography. It is currently available to a defendant if it can be established that the circumstances in which the defendant produced the work demonstrate that s/he acted for a 'genuine artistic purpose', and that the artist’s conduct was reasonable for that purpose. The defence is not available to the separate charge of using or allowing a child to be used for pornographic purposes.
What changes does the Bill propose?
If passed, the Bill would amend the Act to reflect the current Commonwealth legislation dealing with child pornography offences. Some of the key changes are:
Removal of the artistic purpose defence
The Bill removes the artistic purpose defence to charges of production, dissemination or possession of child pornography so that if material is found to be child pornography, even if it was created for a genuine artistic, literary or journalistic purpose this does not provide a defence. Hopefully this means that works which are not pornographic are not dealt with under this Act at all, and those that are more easily prosecuted.
Considering artistic merit in assessing whether material is offensive
Despite the removal of the defence the Bill is drafted so that when considering whether or not the material is 'offensive' a court takes into account the artistic merit of the material (possibly after hearing expert evidence on this question). Whether material depicting or representing a person under 18 is considered offensive in the circumstances is relevant in determining whether the material is considered child pornography. A court will look at whether or not reasonable persons would regard particular material as being offensive in all the circumstances. As part of this process the court must consider:
- the literary, artistic or educational merit (if any) of the material; and
- the standards of decency and morality; and
- the journalistic merit (if any) of the material; and
- the general character of the material including if of a medical, legal or scientific character.
The Bill requires that material be more carefully considered to establish whether it is child pornography or not, given any relevant artistic merit, so that works created with a legitimate artistic purpose are not classified as child pornography from the beginning.
While the scrapping of the defence appears to narrow the rights available to artists, the introduction of closer scrutiny of which works are treated as child pornography is likely to procure a more careful consideration of the works in question and less likely to result in the NSW police pre-emptively confiscating works before any charges are laid or works classified as happened with Bill Henson. Arts Law cannot be certain of the degree to which this change will affect artists but predict it is unlikely to significantly alter the rights of artists.1 We do, however, support the introduction of measures which more precisely classify material before police action is taken against an artist.
Classification defence
The Bill retains the current classification defence to a charge of "production, dissemination or possession of child abuse material". This means that a complete defence is available for this charge if the material is classified by the Classification Board, and is not refused classification.
Why does the Bill propose these changes?
The primary reason given for the removal of the defence is to align state laws with Commonwealth laws making it simpler to prosecute child pornographers, and for juries to consider questions of law when defendants are prosecuted under both State and Commonwealth laws. The knock-on effect of this change is hoped to overcome the problem of material created for artistic purposes being found to be child pornography in the first place.
What are the potential pitfalls of the changes?
Although the change would align NSW child pornography laws with the Commonwealth it will make NSW inconsistent with the majority of the other states and territories, which could add complication where there are charges laid for offences taking place in various jurisdictions.
Australia Council Protocols
The Australia Council Protocols were referred to in the Report as a means of assisting artists to comply with the current legislative regime. Practically speaking however the Protocols are less than helpful and have added a layer of unnecessary complexity to artists practice by creating a contractual obligation for artists to comply with a set of complex rules that exceed already stringent legislative obligations. The Protocols appear to have had the greatest impact on arts organisations and have caused numerous counterproductive results, for example:
- a non-profit arts organisation being unable to publish very innocent photo of a small child showing half her chest without having the image classified due to Protocol requirements with respect to partial nudity of children, despite the child now being over 18 and her parents consenting to the publication of the photo;
- delays in exhibitions due having to get works classified, with some exhibitions being cancelled because of the cost and time of the classification process; and
- withdrawal of works where artists have taken photographs a number of years ago in a foreign jurisdiction and are unable to provide the necessary (under the Protocols) undertakings that the works were taken in accordance with the laws of that jurisdiction.
What's next?
The Bill is yet to pass through the upper Legislative Council and receive 'in principle' agreement. You can track its progress at www.parliament.nsw.gov.au.
Protocols: If your organisation has a view on the Protocols and can provide examples of how it has been affected by them, please contact the Australia Council through www.australiacouncil.gov.au.
Suzanne Derry is a solicitor at Arts Law.
Footnotes
1 The DPP reported that only one defendant has sought to rely on the 'artistic merit defence' in a number of years. He was unsuccessful in doing so (Preliminary submissions to CPWP: Office of the Director of Public Prosecutions (State) (2.2.09) at p7