In this article Serena Armstrong and Suzanne Derry outline the main provisions in the Australia Council’s Protocols for working with children in art.
Application from 1 January 2009
From 1 January 2009 the Australia Council Protocols for working with children in art have applied to all artists and organisations receiving Australia Council funding. Artists that are not funded by Australia Council are not obliged to follow the protocols. Arts Law is concerned that there is a lack of clarity in the industry as to who must follow the protocols and we think this confusion could result in more artists following the protocols than are legally bound to do so. Artists whose work includes children and who wish to have their work exhibited, distributed, marketed or published by Australia Council funded organisations will be asked by those organisations to give an undertaking that the artwork complies with all applicable laws and that for works created after 1 January 2009 the protocols were followed by the artist during the creation of the works. Arts Law believes this creates potential for a disturbingly broad application of the protocols if artists and arts organisations decide to comply with the protocols despite having no legal obligation to do so.
Arts Law strongly believes in the importance of having laws and protections to safeguard children from exploitation and harm. We believe this is already achieved with existing laws and that the protocols are unnecessary, that they will create substantial compliance difficulties and will substantially impinge upon artistic practices and artistic expression in Australia.
Arts Law recognises that our clients need to understand how and indeed if, the protocols apply to them. This article describes the requirements under the new protocols and who the protocols affect. The protocols have potential to affect artists in most disciplines, although it is clear that they will have the greatest impact upon filmmakers and visual artists, especially photographers, that include children in their work.
Interaction between the protocols and other laws
The protocols set out specific minimum requirements of artists and arts organisations creating, exhibiting and distributing artwork involving children. Artists working with children are already subject to a number of laws which regulate their practice, such as employment laws, criminal laws, obscenity laws and classification requirements. These requirements vary significantly from each state and territory. Artists and arts organisations must continue to comply with the laws of their specific region. Where the laws of the region are of a lesser standard than the protocols, then the protocols set a higher level of compliance. Where the laws are of a higher standard than is set by the protocols, the laws of the state or territory must be complied with.
What are the consequences of failure to comply?
For artists and arts organisations receiving funding from the Australia Council, compliance is a condition of funding. Failure to comply is a breach of contract and under some funding contracts is likely to give rise to the right for the Australia Council to terminate the contract if, after giving notice of the breach, that breach is not rectified in the given period. Breach of contract also gives rise to a right in damages, although depending on the specific circumstances, the amount of damages recoverable could be very low. For individuals or organisations working with children under the age of 15 where the children are fully or partly naked, evidence of compliance must be shown before the funding payment will be made.
Do the protocols apply to me?
Are you Australia Council funded? If no, then the protocols do not apply directly to you.
BUT if you include children in your work and that work is exhibited, performed, distributed or marketed by an organisation funded by the Australia Council then for all works created after 1 January 2009 you will be asked to state that you have followed the protocols and you have all necessary consents and permissions. So while you are not legally bound to comply with the protocols, the fact that you do not do so could create difficulties if you later want to exhibit or distribute the work via an Australia Council funded organisation.
Arts Law has had a number of queries from clients about whether the protocols apply to them. The key points to remember are:
- if you are not Australia Council funded then you are not bound by the protocols;
- if your work does not involve children, the protocols will not affect you.
- if you are Australia Council funded, it is likely that the protocols apply to you, but you should check your funding agreement to make sure.
The Australia Council sent out letters varying the funding arrangement for organisations already receiving funding at the beginning of 2009. If you are not sure whether the protocols apply to you, you should check with the Australia Council. If the protocols do apply to you and you need assistance in working out how to comply, you can contact Arts Law for advice. Before contacting Arts Law be sure to read the protocols and Arts Law’s national and state/territory information sheets on working with children. The Arts Law information sheets, titled Children in the Creative Process: Information for Artists and Arts Organisations, can be downloaded free from this website (see the links at the bottom of this article). The protocols are available from the Australia Council website: http://www.australiacouncil.gov.au.
If your project receives funding from the Australia Council and it begins without any involvement of children, but changes unexpectedly so that children are involved, then you must immediately notify the Australia Council and must then comply with the protocols.
Creation of a work of art
If you are creating a work of art with a child under 15 years old, the protocols require that you get their parents’ permission to involve them in the project, even if the child is not being paid. The Australia Council can ask you to provide evidence of these permissions at the end of your project. If you are creating work in a public space and taking images of children who are not acting under your direction, you are not required to get parental consent. If you’re uncertain about the meaning of ‘public space’ or whether a child is ‘acting under your direction’ you should seek legal advice, which may be available through Arts Law.
In some states and territories, there is a specific prohibition on working with naked children. If such a prohibition applies in the state or territory in which you are working, you must abide by it. If the area in which you are working permits working with naked children, you must comply with the restrictions and you must also comply with the protocols procedure.
The protocols require that where a child is under the age of 15 the artist must explain to both the parents and the child the context of the work. The artist must ensure the parents and their child have understood that context and agree that it is not sexual or exploitative. If the child is to be naked during the making of the artwork, the parents must supervise the child while the child is naked.
What does partly naked mean?
Partly naked is defined ‘as including images of bare genitals, buttocks or female breasts’. If you are working with children and they are wearing underwear that covers their genitals and buttocks, and breasts if the children are female, then the provisions applicable to naked or partly naked children do not apply.
Creation checklist – what do I have to do?
- Check the ages of the children you plan to work with.
- For children aged 15-17 there are no specific requirements for creation, although there are restrictions on exhibition and distribution.
- If they are under the age of 15, get their parents or legal guardians to give written consent for the child to be involved.
- Make sure you keep these consents in a safe place so that if you are required to evidence them, you can do this easily. You should keep these consents for at least 18 years.
If you are working with children under 15 who will be fully or partly naked, discuss the work with the parents and child and get the parents to sign a document stating that they and their child have:
- understood the context of the work as explained by you;
- agreed to supervise the child while naked; and
- agreed the context is not sexual, exploitative or abusive.
Exhibition and performance
The protocols contain prohibitive requirements about exhibiting ‘contemporary’ depictions of children who are fully or partly naked. Contemporary images are defined under the protocols as being images taken less than 18 years ago. The exhibitor or presenter must get a written undertaking from the artist who created the images that the artist was compliant with the laws as they applied at the time and in the place that the works were created.
If the works were created after 1 January 2009, the artist must also give an undertaking that they followed the protocols when creating the works. Artists who were not Australia Council funded would not have been required to follow the protocols and may not have known about them. It is likely that many artists will be unable to give such an undertaking, which is why artists need to consider complying with the protocols even where not contractually bound to do so through an Australia Council funding agreement. In deciding whether to comply with the protocols despite not being contractually required to comply, an artist should weigh up the advantages and disadvantages of compliance. An artist that complies with the protocols despite not being funded by the Australia Council, may find their arts practice unnecessarily restricted and may have been able to exhibit or distribute the work through organisations that are not Australia Council funded.
Where the artist is not contactable or cannot give the required undertaking the exhibitor or presenter must have the work classified by the Classification Board. Classification of images costs over $500 (even if it is only one image which requires classification) and in many cases will mean that exhibitions simply cannot proceed due to the cost or that artworks may be excluded from being shown because the artist cannot give the required undertaking.
Exhibition and performance checklist – what do I have to do?
- Do the images for exhibition contain fully or partly naked people under 18 years of age? If no, the protocols do not apply.
- Is the image a ‘contemporary image’ (taken less than 18 years ago). For works taken more than 18 years from the date of exhibition the protocols do not apply.
- For works that depict fully or partly naked children and which were created within 18 years of the exhibition opening, you need to obtain an undertaking from the artist who created the images that they were created in accordance with the laws at the time and in the place they were created. For works created after 1 January 2009 the undertaking must also state that the artist followed the protocols.
- If you cannot get the above undertaking, contact the Classification Board about classifying the images.
The protocols cover three types of distribution. These are: ‘publication’, ‘promotion/marketing’ and ‘online and mobile media’. For all these forms of distribution, the protocols require that the distributor get a written undertaking for all contemporary images (taken less than 18 years ago) of any person under 18 years old. The undertaking must state that:
- the artist created the work in accordance with the laws at the time and in the place the images were taken; and
- for works created after 1 January 2009 the artist followed the protocols in creating that work, and
- the parents and guardians consent to the distribution of the child’s image – it is not clear whether this consent is required if the work was created before 1 January 2009.
If the images contain partly or fully naked children aged one year or older, the protocols require the images are classified by the Classification Board. The costs of doing this are likely to be prohibitive, as described above, classification of images costs over $500. These requirements don’t apply to works created in a public space where children are not employed or directed by the artist. As with the restrictions relating to exhibition, if you’re uncertain about the meaning of ‘public space’ or whether a child is ‘acting under your direction’ you should seek legal advice, which may be available through Arts Law.
Where an Australia Council funded organisation allows artists to independently upload images to a website to disseminate their material, they are required by the protocols to have a written policy on their website which requires artists to warrant that parental consent has been sought for images of people under 18, that images of fully or partly nude children have been classified by the Classification Board and that the images were created in accordance with the laws applicable at the time they were created. This is another very concerning example of obligations being imposed on artists who are not even funded by the Australia Council.
Distribution – what do I have to do?
Think about the way you intend to distribute artworks – does it fall into one of the categories dealt with in the protocols, namely ‘publication’, ‘promotion/marketing’ or ‘online and mobile’ media’?
If the material you are distributing does not contain any images or people under the age of 18, the protocols will not affect you.
If the material you are distributing does not contain any ‘contemporary images’ (taken less than 18 years ago) the protocols will not affect you.
For material that was taken less than 18 years ago and contains a depiction of a real child under the age of 18 you must get a written statement from the artist that they were compliant with the law when they created any images. For works created after 1 January 2009 the undertaking must also state that the artist followed the protocols and that the parents of the child gave permission for distribution of the image.
If you are unable to get this statement from the artist, parental permission to distribute images of people under the age of 18 is required. Get this in writing so it can be evidenced to the Australia Council. Parental consent is not required where the children was in a public space and were not directed by the artist.
If the images contain fully or partly naked children, the images must be classified by the Classification Board unless the images are of a child under 1 year old or are taken in a public space without the children being employed or directed by the artist.
Review of protocols in 12 months time
Clearly, the protocols are unduly restrictive, time consuming and costly for artists and arts organisations. They create extra hurdles for artists who already struggle to promote and market their work and they require artists to be bound by obligations and restrictions which the law in their state or territory may not presently require. The protocols will be reviewed in approximately one year’s time. Arts Law encourages artists to get in touch with the Australia Council and make comments about the protocols and how they feel about them, so that this may be taken into account when the time comes to review them. The protocols are available on the Australia Council website. They have recently created a Facebook page (there is a link through their website) which you may wish to use to comment on the protocols.
Serena Armstrong and Suzanne Derry are solicitors with Arts Law.