Detailed Discussion

Freedom of expression is a universal human right which is particularly valued by artists. Although enshrined in the UN Declaration of Human Rights, it is not effectively protected by Australian law which can result in confusion and contention over artistic works. 

Freedom of expression is essential for the wellbeing of democratic societies. UNESCO’s statement on Artistic Freedom outlines the following set of rights promoted under international law:

• the right to create without censorship or intimidation

• the right to have artistic work supported, distributed, remunerated

• the right to freedom of movement

• the right to freedom of association

• the right to protection of social and economic rights

• the right to participate in cultural life

Key Issues

• Human rights: Threats to human rights and artistic freedom diminish and weaken the diversity of cultural expressions and erode individual wellbeing and quality of life. These threats can put the lives and livelihoods of artists, particularly those living in conflict situations, in peril. In response, many international bodies have created policies to protect artistic freedom, such as UNESCO's Statement on Artistic Freedom. In Australia, artistic freedom must be viewed in the context of our history of frontier wars, colonisation, the White Australia Policy, migration, class division, d/Deaf and Disabled people's disability rights, LGBTQIA+ rights and subsequent culture wars and their ongoing implications and effects. 

• Responsibility: Artistic freedom comes with responsibility. It must be approached with consideration, care and an awareness of cultural safety, cultural appropriation, cultural advocacy and accessibility, and the intersections of these concerns. 

• Self-censorship: While the law places limitations on freedom of expression, censorship may also arise outside of the legal system. Restrictions may arise from institutional politics or complaints by pressure groups, the community or even the opinion of an individual in a position of power. Left unchallenged, these ‘informal’ methods of regulation can be as restricting as legal constraints by placing limits on the exhibition or publication of work that is perceived to be offensive or obscene. These pressures can have the effect of forcing public and private galleries, art publishers and artists to censor themselves. Self-censorship can also occur where artists believe that if they create controversial work it will not be exhibited or sold.

Indigenous Cultural and Intellectual Property (ICIP) principles are an important consideration when balancing the responsibilities of care and cultural safety and the rights to expression and self-determination. All parties must ensure that ICIP principles are upheld for any use or adaptation of First Nations cultural heritage. 

For more information on engaging and collaborating with First Nations communities, see First Nations and Working with First Nations Art Centres.

See also Australia’s Council for the Arts’ Protocols for using First Nations Cultural and Intellectual Property in the Arts and City of Melbourne’s Code of Practice for Galleries and Retailers of Indigenous Art. 

Legal instruments that apply in the area of freedom of expression are Criminal Code Act 1995, the National Classification Code and the Commonwealth’s Classification (Publications, Films and Computer Games) Act 1995 and the Racial Discrimination Act (1975). 

Unlike the United States, Australia has no legislated constitutional right of free speech, although the High Court has recognised that under the Australian Constitution there is an implied freedom of political communication about governmental or political matters. 

There are a number of laws in Australia which potentially restrict freedom of expression, which in turn may restrict artistic expression.

These include laws relating to:

• obscenity

• defamation

• discrimination and racial vilification

• display of hate symbols

• trade practices laws (prohibiting misleading and deceptive conduct)

• internet regulation

• copyright and other intellectual property rights

• classification regimes regulating publications, films and computer games

• less obvious ones like those relating to public nuisance, urban planning and workplace health and safety

Artistic expression is not expressly restricted however these laws and regulations may inhibit artists by preventing certain actions, content or material being made publicly available. A difficulty for artists is that it is often unclear when their work is likely to be subjected to some sort of legal restriction. 

This uncertainty is the result of a variety of factors including the complexity of the law, the subjective nature of interpretation, and on occasion, the fact that the law is outdated. This makes it difficult to provide any clear-cut guidelines for artists as to when they may be infringing a particular law, as it will be necessary to consider each case in its own right.

Arts Law provides a general overview on the Limitations on Freedom of Expression and legal defences. Arts Law also provides an information sheet on Children in the Creative Process (Australia) that summarises the laws in Australia protecting children, and provides web links to specific legislation as well as information sheets that are state specific.

The Code of Practice advocates for freedom of artistic expression and asserts that censorship should not be used to constrain artists from exercising this right within the law. 

Risk Management

It is good practice for arts organisations, such as commercial and public galleries, art publishers and artist-run exhibition spaces, to manage threats or complaints from the public through a risk management strategy. This protects both the organisation and the artists whose work they publish or display.

A risk management strategy should answer the following questions:

• Have we considered all possible complaints or actions from an aggrieved organisation or individual?

• What strategies are in place to deal with an emergency, such as a physical attack on a work of art or a member of staff?

• Are we adequately protected through building, contents or public indemnity insurance?

• Is the space physically secure and fitted with alarms?

• Are we able to obtain legal advice at short notice if required in an emergency, such as a police raid?

For more information, see Museum and Galleries of NSW and NETS Victoria's Risk Assessment and Management for Exhibition Content framework and template.

Artistic Merit Test

In determining the legality of freedom of expression, the idea of ‘artistic merit’ may be taken into account.

It is good practice to take the following steps to establish artistic merit:

1. Establish whether or not the person is a professional artist by referring to standard art industry criteria used by the Australian Tax Office in deciding whether an artist is in business for income tax purposes.

2. Establish a standing committee of art experts of diverse backgrounds to advise on the ‘artistic merit’ of any works in consideration.

3. Assess the work against criteria for artistic merit:

   1. Intention: Is the intention of the work to be for artistic purposes of e.g. research, critique, irony, parody, satire, challenge to community attitudes, and/or sampling and reuse?

   2. Context: Is the work made available to the public through arts venues e.g. a gallery or artist-run space, artist studio or workshop, art website or art publication?

   3. Meaning: What is the meaning of the work according to the interpretation by art experts?

4. Consider the context:

   1. Is the work part of an installation or structure, series, sequence, moving image work or other larger art entity which contributes to its meaning?

   2. Does the title of the work or text or other graphic devices used in the image or associated with it, contribute to the meaning of the work?

Content Warnings

A content warning will alert audiences about controversial work. A sign need not contain a detailed description, but it should be prominently displayed near the entrance to the exhibition space. It might say that a work (or works) in an exhibition depicts actions or objects which some members of the public might find offensive or disturbing. It is unclear how effective content warnings are in mitigating negative experiences, however they allow audiences to make an informed choice about engaging with the work.

Content warnings are often used for artwork that is sexually explicit or deals with issues such as suicide, violence or abuse. Warnings may also be used to alert First Nations communities about images of people who have died, or to alert victims of crime about the display of work by artists in custody.

It is good practice for organisations to develop policy documents or frameworks, including a risk management policy, that are public and accountable. Institutional and contractual transparency assist in supporting artistic freedom and can facilitate equitable and brave spaces for the production, presentation and development of art and culture. Funding bodies should endorse freedom of expression and run funding programs under the principles of arm's length funding. 

While championing freedom of expression, organisations and funding bodies may also develop policies and grant conditions which regulate the content of artwork, or the working methods of artists. In line with the organisation’s stated values, they may place special conditions on projects dealing with vulnerable or marginalised groups, or their cultural expressions. 

For example, the Australia Council's Children in Art Protocols, must be followed by artists who work with children and receive Australia Council funding, or organisations which exhibit or disseminate the work of artists whose work includes children and which receive Australia Council funding. Also, funded artists who engage with First Nations cultural heritage in projects are required to comply with the First Nations Cultural and Intellectual Property in the Arts Protocols as a condition of Australia Council funding.

Artists whose work is deliberately intended to provoke controversy, or whose work is likely to provoke controversy, should consider the implications of this and try to work cooperatively with those exhibiting, publishing or distributing the work to avoid or manage the controversy.

Artists should make themselves aware of any laws and protocols that may impact on the public display or dissemination of their work. Artists whose work is restricted or censored should seek legal advice.

Artists who work with children and receive Australia Council funding must follow the Australia Council's Children in Art Protocols. Furthermore, funded artists who engage with First Nations cultural heritage in projects are required to comply with the First Nations Cultural and Intellectual Property in the Arts Protocols as a condition of Australia Council funding.

Cultural Appropriation

Cultural appropriation is the act of taking or using things from a culture that is not your own. Cultural appropriation can deny people and communities the right to manage, maintain and benefit from their cultural property. Regardless of intent, it can cause offence and harm and may infringe copyright laws.

It is good practice to use collaborative models that include consent, attribution and benefit-sharing for any project that touches on ICIP or cultural expressions that are not your own. 

For more information, see First Nations, Racial Equity and Representation and Community Engagement.