Children and Art Issues

In relation to the representation of children in art, from time to time artists have to defend themselves against the accusation that their work offends community standards. This has led to some changes in legislation and regulation. However, the debate continues about what kinds of artistic representations of children are permissible and what are the appropriate guidelines.

There have been several occasions when an artist’s work has caused public debate about both what is permissible in working with children and how and where the artworks should be seen. While NAVA does not in any way condone an action which would cause harm to children, It is concerned that the sensitivity over protection of children should be proportional and should not lead to the representation of children becoming so restricted that they are erased from public view.

NAVA’s CEO Tamara Winikoff talked about the history of art censorship in Australia for a segment on the divide between child sexual abuse materials and art on ABC Radio National. Listen here.


Recent contentious cases of children in art

Until now, no artist has been convicted of their artwork being child sexual abuse materials. In 2008, the fracas over the work of artist Bill Henson divided opinion and had many ramifications including changes being made to legislation and new funding body regulations.

The most recent contentious art censorship case is that of Melbourne artist Paul Yore who was fighting charges of producing and possessing child sexual abuse materials, related to photographic images that were removed in 2013 from his exhibition, Everything is F---ed, at the Linden Centre for Contemporary Arts in St Kilda, Melbourne.

The first hearing of his case was held in the Melbourne Magistrates Court on Friday 14th February 2014, Yore’s barrister Neil Clelland, contested the charges in the committal hearing held in mid-August. On 1 October 2014, Magistrate Amanda Chambers dismissed each of the charges under the common law right to freedom of expression, and the statutory right to freedom to impart information and ideas of all kinds, including by way of art. For more information, see the Arts Law Case Note.

NAVA continues to be called upon to defend artists whose work may be deemed to be contentious for any one of a number of possible reasons. NAVA is also asked to advise when changes to the law are being contemplated.

To inform the process of deciding on artistic merit in any case where there is the potential for charges to be laid, NAVA has recommended the use of an Artistic Merit test as outlined in the Freedom of Expression area on this site.

Artistic Defence Legislation

At the time of the Bill Henson case, several state politicians called for the tightening of constraints in relation to the representation of children. In 2010 NAVA was active in negotiating over the NSW Government’s decision to remove the ‘artistic defence’ from the NSW Crimes Amendment Act.

However, the change went ahead. Deleting the ‘artistic purposes defence’ from the Crimes Act 1900 (NSW) means that the onus is shifted to the beginning of the process where a decision has to be made about whether a charge should be laid, based on an assessment of ‘artistic merit’.