No more "artistic merit" defence for child pornography in New South Wales

Changes to the criminal law rely on police and the courts to consult with arts experts before deciding whether material is art or child abuse

Sydney. The NSW Government has announced that people charged with child pornography offences will no longer be able to claim the "artistic merit defence". NSW Attorney-General John Hatzistergos said the changes to the NSW Crimes Act would allow courts to better distinguish between child pornography and art.

Law-makers have been grappling with their response to the public furore which broke out in 2008 when the prominent Australian photographer Bill Henson exhibited pictures of naked children.

Police removed the photographs from the RoslynOxley9 gallery in the chic Sydney suburb of Paddington, following complaints. After validation of the photographs by the Classification Review Board, however, they were put back on display. However, only people who rang ahead to the gallery were granted access to the exhibition.

Henson was not charged, but his work continues to stir up heated discussion both for and against his use of nude child models.

In his statement (released 9 March) Mr Hatzistergos said a clear line does not currently exist between child pornography and art, and that this situation is not ideal for the public or the artistic community.

“Laws introduced today make it clear that if a court determines that material is ‘child abuse material’, the fact that it is art can no longer be used as a defence to a charge of child pornography,” Mr Hatzistergos said.

The minister’s statement said that NSW laws will adopt Commonwealth provisions under which the court looks at the artistic merit of the material when deciding whether it is child pornography, rather than relying on the defence of artistic purpose being raised.

The changes were formulated in consultation with the National Association for the Visual Arts.

NAVA executive director Tamara Winikoff said it might at first appear that the removal of the artistic merit defence could make artists more vulnerable to constraints on their freedom of expression.

But she said this was balanced by the onus being placed on police and the Office of the Director of Public Prosecutions to establish that the material in question “is such that a reasonable person would find it offensive in all the circumstances”.

“NAVA is currently working with the ODPP and the police on protective protocols so that art experts are consulted and can advise on whether the material had been produced by a genuine artist and had ‘artistic merit’, taking into account its context, intention and meaning,” Ms Winikoff said.

Ms Winikoff said NAVA understands that a clause will be inserted into the Crimes Act which accepts classification by the Classification Review Board as a complete defence. “This was one move that lead to resolution of the Bill Henson case,” she said. “It allows artists, galleries and publishers to approach the Classification Review Board if they are unsure about a particular work of art."

“We are concerned that while public anxiety about protection of children is absolutely understandable, it needs to be focused on pre-empting or catching the real perpetrators and not artists,” Ms Winikoff said. “We have never heard of a case where an artist was found guilty of making artwork which was child pornography.”

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19 Jul 11
14:59 CET


Freedom of Speech doesn't exist in Australia?

2 Apr 10
13:58 CET


The negative response to Bill Henson's work has been reactionary and displays a brazen disregard and dismissal of the work itself. Much of the outcry in Australia leads back to one individual who, as an outspoken campaigner for child protection, has assumed nudity equates to pornography. Henson is one Australia's greatest artists. These particular works, a fraction of Henson's prodigious output, are most definitely not about child exploitation but in fact about what is arguably the most important journey every person undertakes - that of the transition from childhood to adult life. Teenagers are sexual beings, regardless of the blinkered vision of those who want to see their children remain 'innocent'. The images may be confronting to a conservative eye or to one pushing a particular agenda but they are not exploitative. Of course politicians are not going to support the artist and as happened to Henson, a mob mentality led people who had never seen his work calling for his blood.

29 Mar 10
1:20 CET


Egon Schiele was imprisoned for this. the Jail is now a museum to him... Most issues of i-D magazine have what appear to be naked children.....

29 Mar 10
1:20 CET


Yes, ALL works need to be vetted by the Government, you want to sell some Shaun Gladwell video piece from Venice? That'll be $1,000 submission fee per work. You want to exhibit a Susan Norrie at your non-profit artist run space? $1000 fee per work. The industry gets around it by basically ignoring the Classification Act and breaking the law every day, leaving ourselves open to prosecution. And our 'peak body'? They respond with these platitudes. SHAME ON YOU!

29 Mar 10
1:19 CET


A ridiculous quote from Winikoff to fluff her way past the fact that NAVA under her stewardship is the most ineffectual peak body any industry in Australia. We should be working towards LESS oversight by the Australian Classifications Board in art not more! Few people know this but it is law in Australia for ALL art works that are made using film, video or moving image works that are displayed to the public are subject to classification by the Classification Board (except ones documenting 'live performance' or a 'news' event).

29 Mar 10
1:19 CET


I am a gallery owner and welcome any initiative aimed at protecting children. It is sad that we live in a society where 'thought police' is needed. I applaud artists who are 'self-censoring' and give good thought to what is acceptable and ethical to display in public. There seems to be an increasing tendency to focus simply on what may be shocking or innovative without regard to the effect on other people.

26 Mar 10
13:35 CET


QUOTE Ms Winikoff said. “We have never heard of a case where an artist was found guilty of making artwork which was child pornography.” UNQUOTE this argument is shallow and vacuous it takes no account of the results of such artwork. Like the drivers who proudly boast 'I've been driving for thirty years and never had an accident myself' fails to tell of those near misses or the accidents they have caused.

25 Mar 10
17:39 CET


"....but you will soon, Ms Winikoff". The "thought police" have their first toe-hold in Australia.

25 Mar 10
17:27 CET



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