We're Being Treated Like Suspected Criminals

7 January 2009

The Australia Council's protocols for working with children fails artists and galleries.

AROUND 10 years ago, a friend asked if I'd paint her then three-year-old daughter. The fully clothed portrait made everyone happy, the sitter, the artist and the parents.

If I painted the same picture today, and accepted money for it, I'd be breaking the law, because I don't have a Child Employment Permit from Business Victoria and I haven't submitted to a police check, which I am required to do before engaging the child as my "model". These became necessary in 2004, when the Victorian Government passed the Child Employment Act 2003.

Now artists must reckon with another official insult, which lines them up with suspected criminals. Instead of providing national guidance for artists to negotiate their way around such laws - which are different in each jurisdiction - the Australia Council's Protocols for Working with Children in Art demand haphazard compliance according to geography, and throw a whole lot of further ugly demands at artists and galleries.

Obtaining parental consent for a new picture is no problem, and has been assumed since the Renaissance. But the protocols - announced in December and there for our guidance now - demand retrospective documentation, which is often unavailable. And what happens when artists, encouraged by parents, spontaneously choose to make pictures of a friend's child, for which they don't yet have a permit or police clearance?

Before the protocols, initiated following the Bill Henson uproar, these steps were not an expected practice in art. Every judge would be sympathetic to a spontaneous work done in good faith, and there was a sense that the law was on the artists' side. But now, artists ignoring the protocols will be stymied.

No gallery or magazine funded by the Australia Council will show the work unless full compliance can be guaranteed. Frozen out by the higher zones of the system, any work lacking full compliance is unlikely to appeal to commercial galleries either. Any spontaneous photograph is condemned to artistic exile if a child in it accepts direction from the photographer.

Like many others, I tried to contribute to the protocols in the tiny window allowed. Among other issues, I asked the Australia Council to explain what kinds of harm or exploitation they sought to protect children from, so that we might judge how well the measures align with the purpose. My submissions were ignored.

I glean that the main concern of the Australia Council isn't about the character of the image but the risk of an artist sexually abusing a child. This must be the reason they don't mind "images documenting activity in a public space, where the children were not employed by the artist and they took no directions from the artist in the creation of the image".

So the picture can be voyeuristic, sneaky, predatory and exploitative in visual terms; but if there's no employment, presumably they think there's no risk of a crime against children and the work is OK. So the big danger isn't the artwork but the artist. Maybe this is the reason a depiction from fantasy is allowed but a depiction of a "real child" comes under scrutiny. Who knows?

I wasn't the only person to be ignored in the most peremptory process in Australia's cultural history. Stephanie Britton AM, editor of Artlink, asked: "How does an editor deduce whether the work was based on a real young person, or done from memory, or if a model was used for some of it, or if it was based on another work of art, or on a photograph?"

Like Artlink, the National Gallery of Australia and the National Library of Australia complained of the inordinate costs likely to be incurred in observing the protocols, and for no apparent reason. Their phrases are strong: "an unfortunate and unacceptable impact", "neither practical nor acceptable", "administratively unworkable for both artists and institutions", "impractical for the photographers we deal with", "impossible for us", "completely academic" and "prohibitive".

Alas, the Australia Council was acting under orders that prejudiced the process to the exclusion of all sober input. The resulting document is arbitrary and stifling. I guess that was always Kevin Rudd's agenda, reflecting his "deeply held personal beliefs" about protecting the innocence of children, even though he couldn't explain how artistic pictures might in any way compromise this innocence.

With an incurious and intolerant PM, a puppet Australia Council with its intellectual credibility in tatters, and a world-first in art paternalism, we catch a glimpse of how totalitarian cultures operate. The Leader dislikes art that includes children, so it's throttled. As the prophetic Britton warned in her submission: "The depiction of young people in art, which is in fact already very little, in future will dwindle to almost none."

robert.nelson@artdes.monash.edu.au


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