Back in 2008, the NSW Government announced the establishment of a Child Pornography Working Party which will examine the artistic purposes defence in the context of child pornography. The report of the Child Pornography Working Party by the NSW Department of Justice and the Attorney General was released last month.
Under the recommendations, artistic merit can no longer be used as a defence for the use of images of children deemed to be pornographic. If the recommendations of the Working Party become law, any person producing, distributing or possessing such material could still argue artistic merit but once the material is ruled to be pornographic the defence would lapse.
NSW Attorney-General John Hatzistergos said, “The working party’s report suggests that once such material has been found to be unlawfully pornographic, whether or not it is intended to be art, is irrelevant. Instead, the report recommends adopting Commonwealth provisions, which require that once a court has considered arguments that certain material is art and reached a determination that it is nevertheless unlawfully pornographic, no further defence of artistic merit is available”.
The definition of child pornography was recently broadened by the Crimes Amendment (Sexual Offences) Act 2008 which commenced on 1 January 2009. Child pornography is now legislatively defined as material that depicts or describes (or appears to depict or describe) in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be a child): a) engaged in sexual activity, or b) in a sexual context, or c) as the victim of torture, cruelty or physical abuse (whether or nor in a sexual context).
In addition, a new section was inserted that specifies any material that contains or displays an image of a person that has been altered or manipulated so that the person appears to be a child. During the second reading speech of the bill, the Attorney General explained the reasoning behind the further broadening of the definition: “…Images can also be manipulated to make ‘innocent’ photographs of children appear in a pornographic context, or to make a person in a sexual context appear to be a child…The Government makes no apologies in ensuring that all child pornographic images, whether ‘real’ or ‘pseudo’ are covered by this legislation…Furthermore, it is important to reduce the amount of this abhorrent material available to anyone with access to a computer”.
Dr Gordon Moyes supports the recommendations of the Child Pornography Working Party given that this is a huge community concern for families, and that children must be protected from such material. A final decision on these recommendations will not be made by Cabinet until the NSW Government receives responses from victims groups, the artistic community and the media.