This information sheet must be read in conjunction with "Children in the creative process: Australia" since that information sheet explains how the various federal laws operate. This information sheet explains how the Northern Territory 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 the Northern Territory.
Child employment
The law relating to child employment varies between individual states and territories. The Northern Territory has recently passed the Care and Protection of Children Act 2007 (NT). (Care and Protection of Children Act) Part 3.2 of that Act contains provisions regulating the employment of children, however these provisions had not commenced at the time of writing this information sheet. It is likely that the provisions will commence later in 2008.
Once the provisions have commenced, it will be an offence to require a child to perform work that involves exploitation of the child or is harmful, or likely to be harmful, to the child's physical, mental or emotional wellbeing. A child under the age of 15 years must not be required to work between the hours of 10:00 pm and 6:00 am. It is also an offence for a parent to permit their child to perform any of the work described above.
A child is defined as a person less than 18 years old or apparently less than 18 years old if their age cannot be proved.
Exploitation of a child includes sexual and any other forms of exploitation of the child. This includes involving he child as a spectator or participant of an act of a sexual nature or a pornographic performance. Harm includes sexual abuse or other exploitation or exposure to physical violence.
Screening for child related employment
Currently there are no legal requirements for people working with children to undertake a police check in the Northern Territory, however, organisations which require employees and/or volunteers to work with children may have their own policies in this regard.
Part 3.1 of the Care and Protection of Children Act requires people engaged in child-related employment to be screened, however these provisions had not commenced at the time of writing this information sheet.1 Once the provisions have come into force people engaged in prescribed child-related employment must hold a clearance notice. This requirement also applies to volunteers. For example an artist may need a valid clearance notice if they are engaged to work at a school or a club that has a significant child membership or if they provide photographic, entertainment or private tuition services for children.
Parent Volunteers are exempt from the requirement in certain circumstances. Others may be exempt by regulations once the provisions commence. An individual or the proposed employer will be able to apply for a clearance notice from the Screening Authority. A clearance notice will remain valid for 2 years. A clearance notice will not be issued if the candidate has been convicted of an offence prescribed by the regulations or if the Screening Authority decides that the candidate poses an unacceptable risk of harm or exploitation of children.
Criminal offences: child abuse material and indecent articles
There is a range of offences related to producing and dealing with material involving children under the Criminal Code (NT).2
A person who possesses, distributes produces, sells or advertises child abuse material is guilty of an offence and liable to up to 10 years imprisonment.3 It is also an offence punishable by up to 2 years imprisonment to publish an indecent article.4
A person who procures a child for the production of child abuse material or for a pornographic or abusive performance is guilty of a crime and is liable to up to 14 year imprisonment.5
Child abuse material is defined as material that depicts, describes or represents a person who is, or appears to be, a child:
- engaging in sexual activity,
- in a sexual, offensive or demeaning context,
- or being subject to torture, cruelty, or abuse.
An indecent article is defined as one which depicts, describes or represents a person (whether or not engaged in sexual activity) who is, or appears to be under the age of 16 in a manner that is likely to cause offence to a reasonable adult.6
A pornographic or abusive performance is defined as one which is likely to cause offence to a reasonable adult and involves person:
- engaging in sexual activity; or
- in a sexual, offensive or demeaning context; or
- being subject to torture cruelty or abuse.
Defences
Although there is a defence to possession of child abuse material based on legitimate medical or health research, there is no defence based on artistic merit. Artistic merit may, however, be a factor in deciding if something is "likely to cause offence to a reasonable adult".
The provisions do not apply to a film or publication that has been classified or granted an exemption under the Classification of Publications, Films and Computer Games Act (NT). (Classification Act) See below for more information on the classification system and exemptions.
Context
While most accept that there is a legitimate and genuine public interest in preventing the exploitation of children in the production of indecent, child exploitation or pornographic 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 point to 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 in determining what child abuse material is.
Whether a work is "likely to cause offence to a reasonable adult" may also be difficult to determine exactly. 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."7
Classification and censorship
For more information about how the Classification Act interacts with your practice as an artist, see the Arts Law information 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 information 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 Northern Territory is covered here.
Enforcement of classification rules is governed by the Classification of Publications, Films and Computer Games Act (NT).
Exhibiting in a public place or selling a film which has not been classified or has been classified as RC (Refused Classification) is prohibited attracting a fine or imprisonment of up to 2 years.8 It is also an offence to sell or deliver to a child a film classified RC or an unclassified film that would be classified RC.9
Possessing, selling or distributing prohibited publications are offences under the Classification Act. Prohibited publications include publications that have, or would have if classified a category 1 restricted, category 2 restricted or RC classification. It is also prohibited to sell or deliver to a child a category 1 or 2 publication. Offences relating to child abuse publications were described 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 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: :
- the purpose for which the organisation was formed.
- The extent to which the organisation carries on activities of a educational, cultural or artistic nature
- The reputation of the organisation in relation to screening films or demonstrating computer games.
- The conditions for admission to the screening of films or demonstration of computer games.10
Note that an organisation cannot currently apply for a blanket exemption as is possible in some states. The organisation must apply for an exemption for each individual film. Amendments to the Classification Act which will allow organisations to apply for a blanket exemption are expected to commence in mid 2009.
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 Northern 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 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 2007 (NT) 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 circumstances where the parties ought reasonably expect would be observed.11 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 and using it to record private activity is prohibited 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 and attracts a fine or up to 2 years imprisonment.12
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 189 of the Criminal Code (NT) makes it an offence to stalk someone with intent to cause fear or apprehension of physical or mental harm or if you know the conduct is likely to cause such fear or apprehension. "stalking" includes following a person about, watching, keeping them under surveillance 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.
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 certain infrastructure such as train stations may also be restricted. 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.
For more information on restrictions on taking photographs in public see the Arts Law's information sheet on "Street Photographers Rights".
[1] It is likely that these will commence late 2008
[2] The Criminal Code is incorporated into the Criminal Code Act(NT) , Schedule 1. Footnotes 3 – 6 refer to the Criminal Code as embodied in the Criminal Code Act
[3] Criminal Code Act (NT), s125B.
[4] Criminal Code Act (NT), s125C.
[5] Criminal Code Act (NT), s125E.
[6] Criminal Code Act (NT), s125A.
[7] 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.
[8] Classification of Publications, Films and Computer Games Act (NT) ss38, 45
[9] Classification of Publications, Films and Computer Games Act (NT) s50.
[10] Classification of Publications, Films and Computer Games Act (NT) 50ZT
[11] Surveillance Devices Act 2007 (NT) s4.
[12] Surveillance Devices Act 2007 (NT) s15
