The Legal Issues Arising When Using Children in the Creative Process

Freedom of expression is a principle that is highly regarded in the arts. The right is recognised as a human right under Article 19 of the Universal Declaration of Human Rights and in international human rights law under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). However human rights law also recognises this freedom carries special duties and responsibilities and therefore the right is usually accompanied by restrictions such as defamation laws and laws relating to national security, public order and morals.

In Australia when using children in the creative process it is necessary to balance the interests of an artist and the interests of the children they work with. So if you are working with, or using, children in any part of the creative or artistic process, what are the legal rules that apply? Bill Henson's exhibition created an unusually high level of debate. Prior to the furor Henson was one of Australia's most prominent photographers but he wasn't well known outside the art world. The media attention changed all that. This article considers the legal considerations in the Henson matter.

About the exhibition

On 23 May 2008, just prior to the opening of a solo exhibition of Henson's work, police visited the Roslyn Oxley9 gallery, removing 21 of the 40 photographs that were to be exhibited. The police claimed charges would be laid. The main concern was around photographs that depicted a naked 13 year old girl. Images of the works had been placed on the gallery's website and featured in its invitation for the opening and these images had led to complaints being lodged with the police from several members of the public.

Was the work pornographic or indecent?

The criminal laws in each state and territory deal with child pornography, obscenity and indecency. The various crimes acts prohibit the use of children for pornographic purposes (some describe these purposes more broadly than others) and also prohibit the possession and/or distribution of this material. The Henson debate demonstrated the widely divergent views as to what amounted to child pornography. Following the removal of the photographs by the police, the Classification Board classified the works, giving them G and PG ratings. These ratings would have served as a complete defence had Henson or the gallery been charged with the production or dissemination of pornography. There was also potential for Henson and the gallery to have been charged with the lesser offences of exhibition and distribution of indecent material under the Crimes Act 1900 (NSW). It is difficult to forecast what would be considered indecent as a judge must apply the community standard. Again the classification by the Classification Board makes it unlikely the work would have offended this standard despite conservative opinions to the contrary.

Did the work need to be classified?

Normally photographs in a gallery setting would not be classified by the Classification Board as its main role is the classification of film, computer games and some publications. However the Classification Board will classify material that is distributed through the internet if the material has been referred by the Australian Communications and Media Authority (ACMA). In Henson's case the ACMA received a complaint about the display of images on the Roslyn Oxely9 website and therefore classified the material. Once the artwork received the G and PG ratings, no censorship was required. Whilst galleries are not required to have traditional artworks classified (eg photographs, paintings, sculpture and prints) moving image art falls within the definition of 'film'. In recognition of the different audience this work is normally shown to, some states have introduced recent amendments to censorship laws which provide for galleries to apply for an exemption to having such works classified. Where an exemption has not been obtained, and in those states and territories where the exemption is not available, it is a legal requirement that all films and moving image works be classified prior to exhibition.

Did the invitations or website require classification?

Roslyn Oxley9 sent postcard style invitations for the opening. These invitations featured one of Henson's photographs, depicting a naked child. Normally a gallery's advertising fliers or postcards disseminated by mail to prospective customers would not be required to be classified. However if the publication:

1. is likely to cause the publication to be classified RC (refused classification), or
2. is likely to cause offence to a reasonable adult to the extent that the publication should not be sold or displayed as an unrestricted publication, or
3. is unsuitable for a minor to see or read,

then the material should be submitted for classification.

The publisher Thames and Hudson, presumably taking a conservative approach that the publication might fall into one of the above categories, submitted for classification the new book it was publishing about Henson's work.

Were there any relevant laws concerning employment of children?

Each state and territory in Australia places prohibitions or restrictions on employment of children – whether it be in relation to the age of the child, the nature of the work or the authorisation required in order to employ a child. A number of states have certain requirements with respect to employing children in the entertainment industry, which extends to their use in still photography and films. In NSW, Victoria, Queensland and Western Australia, there are prohibitions against the employment of children while they are nude and, in some cases, portrayed in a sexual context.

Furthermore, in NSW and Victoria, a permit or authority is required to work with children in entertainment, while in Queensland a parent's consent form or special circumstances certificate is necessary. In NSW, Victoria and Queensland, there are also prohibitions on placing the child in dangerous or emotionally or physically harmful situations and similar legislation has been introduced in the Northern Territory but has not yet taken effect. Restrictions also apply to the employment of children in the ACT.

Did the privacy laws apply in this case?

There is currently no general right to privacy in Australia, nor is there a specific law aimed at preventing the unauthorised recording or use of a child's image. There are however, a number of laws which regulate the taking of photographs or films of adults and children and the ways in which those works may be used. A major review of the federal and NSW privacy laws is currently underway with indications that there are likely to be substantial changes to our privacy laws in the future.

Further information

The Australia Council has developed protocols for funding projects in which children are used. To assist with these Arts Law has created information sheets about the state and territory laws relevant to using children in the creative process (see below).

Robyn is the executive director of Arts Law.