Australia Council children in art protocols
Phase 1 consultation: Summary of responses

Background

The Australia Council for the Arts is currently developing a set of protocols to address the depiction of children in artworks, exhibitions and publications that receive government funding. The protocols will help artists who work with children do so with proper care and responsibility. The protocols will apply to grants issued after 1 January 2009, and adherence to them will be a condition of receiving Australia Council funding.

The protocols are being developed within the Australia Council’s responsibility to uphold and promote freedom of artistic expression. The protocols will support the Council’s commitment to making the arts fundamentally safe for children to engage with, appreciate and enjoy – from the time an artwork is created through to when it is shown.

This report summarises the feedback received during the first phase of consultations in the development of the protocols.

Consultations

The Australia Council’s children in art protocols are being developed through an extensive consultation process to ensure that the voices of the arts community as well as other concerned groups are heard.

An initial consultation phase to assess the issues of community concern and existing practices was conducted between August and October 2008. This involved public submissions, correspondence with relevant organisations and face-to-face meetings.

All responses were welcomed, and there was a particular focus on four areas:

• Ensuring that the rights of children are protected throughout the artistic process – from the time an artwork is created through to when it is shown
• Ensuring that everyone viewing the artwork has an appropriate understanding of the nature and artistic content of the material
• Protecting images of children from being exploited, including use of the images beyond the original context of the creative work
• Creating protocols that acknowledge the Australia Council’s statutory role in upholding and promoting the right of people to freedom in the practice of the arts.

The consultations involved more than 45 concerned individuals, academics, arts sector representatives, and relevant community and government bodies, including 22 submissions made through the Australia Council’s website.

Summary of feedback

A wide range of key points were raised during the first phase of consultations. The issues and considerations raised during the consultation phase are being considered in the drafting of the protocols. The views expressed during consultation are those raised by the stakeholders rather than the views of the Australia Council.

Some of the key points to date include:

Freedom of artistic practice and child protection

Upholding the freedom of practice and expression in the arts was a key consideration raised by many stakeholders. The Australia Council has a statutory responsibility to promote the rights to freedom of practice in the arts. Many other responses considered the rights of children to protection from harm to be paramount. Other stakeholders made the point that the protocols need to find the right balance between the right to freedom of artistic expression for artists and subject as well as the rights of children to protection from harm. The protocols must meet Australia’s international obligations to uphold the fundamental rights to freedom of expression and the rights of the child.

Children’s informed consent

Many responses supported the development of the protocols, particularly in providing clarity around the ability of young children to give informed consent. The issue of informed consent was seen as being crucial and most respondents acknowledged it required more than simply receiving consent from the children involved and their parents. Views were expressed on this issue ranging from stating that no young person under the age of 18 can give informed consent through to the view that informed consent is a negotiated process between artist, subject and parents/guardians.

Comparative protocols in other professions, government bodies and countries

Several responses drew attention to the fact that other professions and government bodies in Australia have guidelines and protocols for working with children. Several Australian states and territories have laws in place for employment of children. Guidelines, protocols and codes exist in Australia for professions such as teaching and advertising. Many local councils and government department have regulations in place on the photographing of children. A number of responses encouraged the Australia Council to examine international examples of guidelines for artists working with children.

The existing legal framework

Several responses pointed out that range of existing laws apply to artists working with children – including classification laws, obscenity and pornography laws, child employment laws and privacy laws. The development of any protocols needs to consider the existing legal framework. The issue was also raised of the need for any protocols if there are existing laws that cover artists working with children. There was a view expressed that if an activity is not illegal, then government has no role to play in developing guidelines or protocols to regulate it. There was also a belief that existing laws, combined with the informed consent of the subject and parent/guardian, is sufficient safeguard the rights of the child.

Censorship of artists

Many individual stakeholders believed that the development of protocols will censor artists and stop them from dealing with any issues relating to young people and children. Concerns were raised about making funding decisions contingent on the content of an artwork – particularly any political, religious or reductive analysis of the works content. There were concerns that the protocols could be a way of politics guiding funding of the arts.

Audience’s response to an artwork

Several responses believed that it is impossible to ensure that people viewing an artwork have an appropriate understanding of its context and creation. It was pointed out that art necessarily contains ambiguity, and that the only way to control an artwork’s reception is to control its creation. Concerns were particularly raised that the development of the internet over the past decade means that who views images of children cannot be controlled once they are published online.

Regulation of the artistic process

The view was expressed that creativity should only ever be limited by an artist’s imagination and personal judgement. There was another view that the artistic process is inherently self-reflective and that, in itself, is sufficient to protect the rights of the child involved.

Enforcement of the protocols

Concerns were raised about any enforcement mechanisms around the protocols, and the possible reaction of artists to them.

Warnings and classifications to artworks

There was recognition that voluntary warnings on content that may cause offence are standard in television and other broadcast media, although the applicability of similar systems to art was questioned.

Next steps

The feedback received during the initial consultation period has been very helpful. This feedback will contribute significantly in guiding the Australia Council’s work in drafting the protocols. A draft of the Australia Council’s children in art protocols is currently being developed and will be available for public comment during November 2008. There will be a period for comments. They will include an overview of applicable state and territory laws and a set of minimum standards which artists must follow to receive government funding. The final protocols will be published on the Australia Council website on 1 January 2009.