4c - Bill Henson scandal prompts overhaul of art laws

Linda Silmalis, The Sunday Telegraph, October 26, 2008 

LAWS regulating child nudity and art will be overhauled in New South Wales the wake of the Bill Henson controversy.

Photographers and film-makers will no longer be able to rely on a legal defence of "artistic purpose" under one of the biggest shake-ups of NSW child-protection laws.

In a move likely to trigger intense debate, The Sunday Telegraph can reveal the State Government has given in-principle support to the proposal, which is among a raft of amendments put forward by the NSW Sentencing Council.

A package of new legislation will be introduced into State Parliament this year.

Included will be a new offence of voyeurism, to replace outdated "peeping and prying" laws, and tougher laws targeting teachers, scout masters and other adults in a position of authority over children.

There will also be a new offence to address the practice of meeting a child after "grooming" them with indecent material for sexual purposes. It will carry a maximum sentence of 10 years' jail.

The move to strike out the artistic purpose defence follows intense community debate over an exhibition by artist Bill Henson in May. 

Police shut the exhibition and seized 32 pictures, following public uproar over a picture of a naked 12-year-old girl on the exhibition invitation.

The NSW Director of Public Prosecutions, Nicholas Cowdery, QC, declined to prosecute Henson, while the Classification Board declared the images were not pornography.

In his landmark report, Sentencing Council chairman, Justice James Wood, cited a recent case where the defence was used to justify photographs having been taken of acts of indecency committed against a person under the age of 16 years. 

The retired Supreme Court judge said it was argued that the acts and the taking of photographs were undertaken for the political and artistic means of making a protest about the abuse of females.

Mr Wood recommended the removal of the clause. 

"The council is concerned that material which would otherwise constitute child pornography and be such as to cause offence to reasonable persons, should then be defensible on the potentially controversial and uncertain ground that the defendant was acting for a genuine artistic purpose," he said.

The State Government will set up a working group to examine how to implement the recommendation. 

NSW Attorney-General John Hatzistergos said the Child Pornography Working Party would examine how best to deal with cases involving artists and journalists.

"The protection of people from sexual abuse and exploitation are among the most important responsibilities the Government has to the community," he said.

"After a comprehensive and balanced examination of our laws, the Sentencing Council has recommended the most significant crackdown on sex offences in a generation. The Child Pornography Working Party will also examine the artistic purposes defence, in the context of child pornography involving the more general category of depicting children in a sexual context."

The move follows a year-long review by the council into the state's sexual assault laws, in the wake of growing community concern about child pornography.

Under the proposed crackdown, adults in a position of authority found guilty of indecent offences against children will be liable to a maximum sentence of 25 years jail.