The New South Wales Government says it will introduce tough new sex-crime laws, and may strip artists of a defence against child-porn allegations, in line with recommendations of a NSW Sentencing Council report.
NSW Attorney General John Hatzistergos today said the Government would introduce a raft of changes recommended by the council.
Commissioned in September last year and chaired by retired Supreme Court judge James Wood, the council's report into the state's sex crime laws will now be used as a gold standard for new legislation to be introduced this year, Hatzistergos
In the wake of the Bill Henson scandal, an artistic purpose defence to charges of child pornography should be removed, the Sentencing Council said.
Stressing the reform had nothing to do with the Henson case, Hatzistergos said removing the defence would only apply to work that depicts children as the victim of torture, or physical and sexual abuse.
The child nudity so controversial in Henson's work would not be affected by such a reform, he said.
The council has recommended the introduction of a number of new offences, including voyeurism and inciting a person to commit a sexual offence.
NSW opposition leader Barry O'Farrell supported abolishing the artistic purpose defence.
Anyone who photographs children will need the permission of the parents before the pictures can be exhibited.
The ruling is included in sweeping guidelines released by the Australia Council designed to protect children in the aftermath of the Bill Henson controversy.
The six-page document also requires artists who work with naked children to ensure that their parents understand the nature of the artwork. Artists must also have a commitment from parents that they will supervise the naked child.
But missing from the draft guidelines is any mechanism for policing them.
A key visual arts organisation has described elements of the draft protocols as unworkable. The executive director of the National Association for the Visual Arts, Tamara Winikoff, said requiring artists who work with children to obtain
parental permission was restrictive: That's problematic particularly for people like documentary photographers who work in the street. At the moment there are no restrictions on taking crowd photographs or photographs of people in the street without
their permission … This would impose a very, very unreasonable restriction.
The guidelines say images of nude or partly nude children taken over the past 25 years may need to be reviewed by the Classification Board before they can go on view.
Where there is no law to enforce them, the protocols will work as a minimum standard and a reminder to everyone that they must obey the law.
They will affect all projects funded by the Australia Council. From January 1, artists must adhere to the protocols if they want a grant from the Government's peak arts funding body.
The council is seeking comments on the draft protocols by November 27 and will publish the final guidelines on December 31
Art Monthly Australia , the magazine criticised by Prime Minister Kevin Rudd last year for carrying a photo of a nude schoolgirl on its cover, has published more naked images to test the Government's guidelines aimed at protecting children.
But editor Maurice O'Riordan said the three pictures of nude girls had been found to comply with the Australia Council's children in art protocols, even though they were starker than last year's image.
The protocols demand that naked images of children be considered by the Classification Board to ensure they are not obscene. Anyone who photographs children needs parental permission before the pictures can be exhibited and must declare the
photographs did not involve exploitation of the subject.
The full-frontal photographs - taken from an American book and exhibition, The Century Project , by Frank Cordelle - are used to illustrate a review of David Marr's book,
The Henson Case
, about last year's controversy over a Sydney exhibition by photographer Bill Henson that included images of pubescent girls.
Both the Henson photographs and the image used by Art Monthly Australia last year - a photograph by Polixeni Papapetrou of her six-year-old daughter, Olympia - were given an unrestricted rating by the classification board.
O'Riordan described Papapetrou's photograph as more demure because of the lighting than Cordelle's images in the latest edition, which he said were more suited to a documentary: It was important for us to test the protocols because we are
funded by the Australia Council. He had not considered putting Cordelle's photographs on the cover because he said even the arts community appeared divided over the use of Papapetrou's image.
Watching the smouldering ruins of the Henson bonfire in the past few months, I've had reason to recall the old ambassador's wisdom. The transition from Howard to Rudd has seen not much change from the social caution of the old era. The liberals inside
Labor are almost as embattled as they were inside the Coalition. That Rudd is, as we were warned, very, very conservative involves more than maintaining the American alliance. It also means continuing to promise fearful Australians protection from the
excesses of art, film, television and now, above all, the internet.
As the year drags to a close, Communications Minister Stephen Conroy is fine-tuning a regime of internet censorship unique in the democratic world. Under direction from Rudd, the Australia Council is drafting protocols that will tie in bureaucratic
knots any artist dealing with children and present extraordinary obstacles to their work being put on the net. And the nation's attorneys-general are roaming the outskirts of censorship law to try to crack down on images of naked children. Kevin Rudd's
Australia is in a funk over art and kids.
Australian painters and photographers will no longer be able to rely on a defence of artistic merit defence under an overhaul of child pornography laws.
Nearly two years after police raided Melbourne artist Bill Henson's contentious exhibition, the Government will legislate to force artists to account for their works.
A working party set up by the Government in the wake of the May, 2008, controversy over Henson's child exhibits has recommended the artistic-merit defence be struck out.
The group, comprising Department of Public Prosecutions, police and Legal Aid representatives, was instructed to draw a clear line between pornography and art.
The Sunday Telegraph can reveal that New South Wales Attorney-General John Hatzistergos strongly supports the move, and the Government is expected to legislate when parliament resumes next month.
Henson triggered one of the most intense debates in the art world when he featured an image of a naked 12-year-old girl on the invitation to an exhibition of his work at Sydney's Roslyn Oxley Gallery. Police shut down the exhibition and seized 32 of
Henson's pictures, but Director of Public Prosecutions Nicholas Cowdery, QC, declined to prosecute Henson.
Hatzistergos said the proposed laws would cover the production, distribution and possession of child pornography: The fact that it is art cannot be used as a defence. The report recommends that once such material has been found to be unlawfully
pornographic, whether or not it is intended to be art is irrelevant, he said.
The working party, headed by District Court judge Peter Berman, also examined the use of photographs depicting nudity in a news context. Hatzistergos said the new laws would ensure the rights of photographers to publish pictures - such as the iconic
Vietnam war photograph of a nine-year-old girl running naked on a street after being burned by napalm - would not be infringed.
The Government will seek feedback from victims' groups, the artistic community and media before putting the recommendations to Cabinet.
The working party has also recommended the law be changed so jury members, prosecutors and court staff are able to view only a sample of images during the trial process.
After her exhibition was closed and her house raided by police, the Archibald Prize-winning artist Cherry Hood made a pivotal decision. She would no longer depict nude children but would concentrate on portraits instead. About a decade on, she has never
returned to the subject that provoked the police action.
The works were of naked girls aged about four upwards, onto which she painted penises. They were a comment on gender stereotyping, a theme that has long concerned Hood. All the images of girls were photographs in freely available publications.
Her case is outlined in The Art Censorship Guide , just published by the National Association for the Visual Arts. It is a reminder that action against artists has a long history in Australia.
But Hood's decision to change her art practice is one many artists are facing in the wake of the Bill Henson controversy, according to NAVA's executive director, Tamara Winikoff. The introduction a year ago of Australia Council guidelines for working
with children has increased the pressure on artists to steer away from contentious subjects.
It's meant that people who may not have taken any notice have now become self-conscious, Winikoff says. It means that the critical role that art can play is being silenced.
NAVA's guide argues that the visual arts are the prime target for censors and zealots. It provides information about threats to artistic freedom and how to deal with them, outlining the existing laws, the role of key bodies including the
Classification Board, and provides advice on what to do if the police call.
The 100-page guide encourages artists to speak up if a work is censored or restricted or if an artist is intimidated.
No Australian artist has been found guilty of exploiting or harming children within their art practice as far as NAVA is aware. Existing laws are adequate and the Australia Council guidelines are having a chilling effect on the making and
distributing of images of children, Winikoff says: Perfectly legitimate images of children are disappearing from the public domain because everybody is too nervous, she says.
Australia is planning on forcing artists who create images of nude children to pay a fee of $500 per image to have them classified by the government as genuine art and not child pornography.
The removal of the so-called artistic purpose defense is one part of across-the-board changes to child pornography laws announced by Attorney-General John Hatzistergos that were spurred nearly two years ago by the case of artist Bill Henson,
whose photo exhibit featuring images of naked children sparked intense debate throughout the country. Despite being later approved by the classification board, the case highlighted the need for more clarity with respect to images of child sexual abuse.
The new definition will encompass what is termed child abuse material, said Hatzistergos. That means it covers depictions that reasonable persons would, in all the circumstances, regard offensive.
Those depictions, he said, would include where the person is a child who is a victim [of] cruelty, physical abuse, the child is engaged or is apparently engaged in a sexual pose or sexual activity. It also will apply when the child is in the
presence of someone engaging in any of these activities or where the private parts of the person [who] appears to be a child are shown.
A photograph of a partly naked prepubescent girl by internationally renowned photographer Jan Saudek was removed from the Ballarat International Foto Biennale on the eve of its opening.
Biennale director Jeff Moorfoot said he understood a woman went to the Orwellian sounding Office of the Child Safety Commissioner, Tourism Victoria and the local council to complain that the 1995 Saudek work, Black Sheep & White Crow ,
which she had seen in an ad promoting the exhibition in Art Almanac, depicted a mother prostituting her child.
Moorfoot said the council and tourism agency warned him that a controversy surrounding the image could imperil funding, even though Saudek's works were in a separate room with a warning at the door that they contained adult content.
Moorfoot said: No one's said 'take the work off the wall or else'. [...BUT... they said] 'if this goes to the ministerial level, chances are we won't fund the next festival'.