Children in the creative process (ACT)

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.

Child employment 

The laws relating to child employment vary between individual states and territories. On 27 February 2009 the child employment provisions in the Children and Young People Act 2008 (ACT) (Children and Young People Act), referred to hereafter as commenced.

Are you employing a child? 

Under the Children and Young People 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.¹

Generally children under 15 years old may only be employed to perform light work.² 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 is defined to include performing arts such as singing, dancing, playing a musical instrument for a theatre, radio, television or film production and modelling or working as a photographic subject. There is also an exception if the child is employed in their family's business.³

Interference with health, well being or education 

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.⁴

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.⁵ If you intend to employ a child during school hours it should be discussed with the parents and school principle.

No requirement of working with children checks 

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.

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:

1. the sexual parts of a child;
2. a child engaged in activity of a sexual nature; or
3. someone else engaged in sexual activity in the presence of a child.

Examples of activities 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).⁶

Classification and Censorship 

Read this section and also see the Arts Law fact sheet, entitled "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 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.⁷ 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).⁸ 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."⁹

For information on how to apply for classification see the Australian Government Classification Board.

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:

1. the purpose for which the organisation was formed;
2. the extent to which the organisation carries on activities of a educational, cultural or artistic nature;
3. the reputation of the organisation in relation to screening films and
4. the conditions for admission to the screening of films.¹⁰

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.

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) (Listening Devices 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 Listening Devices 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. 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, it is 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's information sheet on "Street Photographers Rights".

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.

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

© Arts Law Centre of Australia 2012

You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.

The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.