Detailed Discussion

It is common for artists to supplement their income by facilitating learning programs and workshops, and increasingly, artists are dedicating their entire career to facilitation.

Types of artists may include: 

• Teaching artist or art educator: An artist who has dedicated their art practice to facilitation of learning programs and workshops. They may or may not have formal qualifications in teaching or education.

• Art teacher: An art teacher is a university-qualified education or teaching professional who teaches visual art or design in an educational institution. They may or may not also have an art practice.

• Artist (as facilitator): An artist who facilitates a learning program or workshop, without being a teaching artist, art educator or art teacher.

Models

Artists may develop and deliver their own work, deliver an established learning program or workshop developed by others, or develop a learning program to be delivered by others. 

Examples of working with primary and secondary students include:

• One-off workshop: An artist facilitates a workshop, within a brief timeframe (i.e. one hour, one school lesson or one day) and usually with a defined outcome. The workshop may be with a small group of children or young people (up to 10) or a whole school class (up to 30). 

• School-based residency: An artist is based at a school for an agreed period of time, ranging in length anywhere from one school term to one school year. A residency in a school may include the artist occupying a studio space (when not directly engaging with students), skills-based workshops with a defined outcome, artist talks, professional development facilitation and substantial acquisitive work created in collaboration with students. Artists should be paid for all aspects of a residency in schools.

• Collaborative public art: An artist is engaged to create a public work of art for the school. The work may be developed in consultation with the school's community and created by the artist, or developed and created in collaboration with students. For more information, see Commissioning Art in Public Space.

Examples of ways artists work with tertiary institution or educational providers include as:

• Commissioned artist: Create new or existing work for a variety of purposes, including public site-specific installation, marketing, promotion and events, or to assist with the creation or installation of an artwork or exhibition.

• One-off guest speaker: Speaker or facilitator in class, at an event or other.

• Recurring guest speaker: Speaker or facilitator in class, at events or other.

• Guest course content designer: Designer, developer or consultant with expertise in a dedicated area.  

• Gallery exhibitor: Guest exhibitor, speaker or workshop facilitator at a tertiary institution art gallery. 

• Student mentor: As part of a student’s work integrated learning experience.  

• Employee: Of an arts or other organisation, engaged by the tertiary institution.  

Key Issues 

Artists:

• are often employed in these positions without facilitation or teacher training and are therefore faced with many unknowns in this space

• don’t always have access to information regarding the range of experience and needs of the workshop attendees 

• may be unsure of their rights regarding intellectual property as universities often claim intellectual property rights on outputs of academic staff (even casually employed)

• are not always briefed on what the expected outcomes are for the students, and how their workshop will connect to the broader context of the student’s education

• may be recorded delivering a workshop which is then reused by institutions without adequate remuneration

• are often not properly reimbursed for their preparation time

• often are not paid according to their level of experience and expertise 

• are often not remunerated for the cost of materials, access provisions and travel (in particular to regional areas) associated with the workshop delivery     

Organisations: 

• often have small budgets to navigate, and need to cover administration costs as well as delivery

• have often not considered intellectual property and copyright agreements

• may have strict contractual frameworks they need to work within

• may be replacing previously employed staff with casual contracts in these roles, and are therefore facing time issues regarding management of these processes

• may not be familiar with the artist’s facilitation experience and style until the workshop is underway

Considerations for engaging First Nations artists, communities and knowledge holders in education settings include:

• undertaking pre-learning for students and educators on teaching and learning First Nations histories, cultures and local communities, see the Art Gallery of South Australia's The Essential Introduction to Aboriginal Art (25 Facts) 

• acknowledging differences between nations, languages and artforms

• understanding and avoiding appropriation and tokenism

• creating a culturally safe environment, to allow for learning and exchange

• acknowledging Country in workshops, events and exhibitions

All parties must ensure that Indigenous Cultural and Intellectual Property (ICIP) principles are upheld for any use or adaptation of First Nations cultural heritage.

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

For more information on working with First Nations artists, students and communities, see the following resources:

• Aboriginal and Torres Strait Islander Principles and Protocols NSW Government

• Teaching Aboriginal and Torres Strait Islander Culture, Principles and Guidelines Vic Government

• Aboriginal and Torres Strait Islander Education Directorate ACT Government

• Aboriginal Cultural Standards Framework WA Government

• QLD Government Protocols: Aboriginal and Torres Strait Islander Ways of Working QLD Government

Working with Children

When an artist works with children and young people, specific federal, state and territory laws apply, with specific legal obligations and duties. 

For detailed information regarding the law and your responsibilities when working with children and young people, see the relevant Arts Law information sheets on Children in the Creative Process, including summaries on state based legal obligations for ACT, QLD, NSW, NT, SA, TAS, VIC, WA.

Legal obligations in the areas of child employment, child pornography and obscenity/indecency, classification and censorship apply in this area.

For more information see Arts Law’s Children in the Creative Process (Australia) factsheet.

Working with Children Checks

All people working or volunteering with children and young people in Australia require a Working with Children Check (WWCC) and a Police Check. A WWCC is not transferable between states and territories.

For specific state and territory requirements, see the Australian Governments resource sheet on Working With Children Checks and Police Checks.

Mandatory Reporting

Mandatory reporting laws aim to identify cases of child abuse and neglect, and to assist the individual children in these cases. State and territory law differ between who has to report, what types of abuse and neglect must be reported, the ‘state of mind’ that activates the reporting duty (i.e. having a concern, suspicion or belief on reasonable grounds) and who the report is made to. 

If you work with children and young people, you may be mandated to report. Find out more information from the Australian Government’s resource sheet on Mandatory Reporting of Child Abuse and Neglect.

Working with Vulnerable People Check

The Australian Capital Territory and Tasmania have legislation that requires those working or volunteering with vulnerable people, including vulnerable adults, to acquire a Working with Vulnerable People registration.

For more information, see ACT Government Working with Vulnerable People (WWVP) Registration and Tasmanian Government's Application for Registration to Work with Vulnerable People.

People working with d/Deaf and Disabled adults and/or children (particularly through a registered NDIS provider) are required to have an NDIS worker screening check. Find out more information here NDIS Worker Screening Check.

Privacy and Confidentiality

Organisations and schools running workshops should seek independent advice on their privacy obligations and ensure that their contractors and employees are notified of their obligations.

Individuals and organisations need to adhere to the Privacy Act 1988 that relates to the collection, handling and use of personal information (most states and territories also have privacy legislation). Artists and organisations should only collect the necessary personal information from children and young people to manage their engagement. This information should not be disclosed to another party without consent from a parent or guardian. 

Private and sensitive information can be revealed in workshops. If material is to be used in a wider context, for example in an exhibition, it is imperative that all participants understand from the outset how this information may be used and agree for this to happen. Good practice is to include a clause on confidentiality in agreements and contracts that participants must sign.

Photographing and Filming

In Australia there is no law preventing the unauthorised recording or use of a child or young person’s image. However, laws regulate the taking of photographs or films (of adults and children), and the ways in which they can be used. Refer to Arts Law’s information sheets on Children in the Creative Process for state and territory legal obligations and duties. 

Although not required by law, it is recommended that artists seek written media consent from children and young people, and their parents or guardians. Artists should communicate the type of recording (photograph, film, audio) and the way in which the media will be used or shared and for how long. For an example, see Arts Law’s Photographer’s Releases.

Child Safe Environments 

A child safe environment is one where children and young people are safe, happy and engaged. The Australian Human Rights Commission's National Principles for Child Safe Organisations apply to staff and volunteers of an organisation or school, as well as those employed to provide services for or working with children and young people.

Online Learning

Digital or online learning programs and workshops have additional digital safety and accessibility considerations for both artist and host organisations, particularly when working with children and young people.

The eSafety Commissioner provides Safety by Design Principles that should be applied when developing and delivering digital or online learning programs and workshops with children and young people.

Host organisations should clearly communicate accessibility needs of adults, children and young people to the artist prior to the facilitation. If the organisation has specific expectations of an artist in relation to professional boundaries and conduct, this should be included in the contract or agreement.

Organisations should comply with protocols for working with First Nations artists, students and communities, see First Nations. 

Pre-learning

Schools should engage in pre-learning before an activity with a guest artist. Pre-learning is important to ensure students have the skills, knowledge and understanding needed to participate, including in culturally appropriate ways.

For more information, see First Nations and the Art Gallery of South Australia's Essential Introduction to Aboriginal Art (25 Facts) resource.

Behaviour Management

A guest artist should not be responsible for behaviour management of students. Behaviour issues and concerns should be directed to the staff in charge. This does not preclude the artist’s responsibility to exercise a duty of care.

Artists should comply with Indigenous Cultural Intellectual Property (see First Nations) protocols for engaging with First Nations students, communities or themes. 

Working with Children 

All projects funded by the Australia Council for the Arts are required to follow their Children in Art Protocols. The protocols are specifically for artists working with children, and they address the depiction and employment of children in artworks, exhibitions and publications.

Duty of Care

A duty of care is a legal requirement to take reasonable care to protect another person from a foreseeable risk of injury or harm. If you are working with children and/or young people in a learning program or workshop, you are responsible for exercising a duty of care. 

Professional Boundaries

Artists should be familiar with and use protective practices to keep themselves and the children and young people they work with safe.

Examples of protective practices include:

• not following or accepting friend requests from children and young people on social media

• avoiding direct digital or electronic correspondence with children and young people

• ensuring you are not alone with a child or young person

• only using toilet facilities allocated to adult staff, volunteers and visitors

• avoiding unwarranted or unwanted touching of children or young people personally or with objects

• personal disclosure unrelated to the learning program or workshop

• avoiding vilification or humiliation, jokes or innuendo of a sexual nature, and obscene gestures and/or language

Further examples of professional boundaries and protective practices can be found in the Government of South Australia’s Protective Practices for Staff in their Interactions with Children and Young People and Australia Council for the Arts' Children in Art Protocols.   

Developmentally Appropriate Engagement

It is important that artists working with children and young people have an awareness of the stages of child development. What is developmentally appropriate is not necessarily linked to age. Artists should clarify questions about the content, context and accessibility needs of participants prior to the facilitation.

For more information on accessibility, see Access Rights for d/Deaf and Disabled People.  

Working with Adults 

Artists should familiarise themselves with the codes of conduct and other relevant policies of the host organisation. 

In general, artists should refrain from divulging personal information/opinions unless related to the content of the workshop.

Working with Culturally Diverse Communities

Culturally diverse communities may have requirements relating to cultural safety, cultural connection or translation. Vulnerable communities may require a trauma-informed approach. 

Artists should conduct research and ask questions of host organisations to develop an understanding of what is appropriate for the culture and situation.

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

Working with d/Deaf, Disabled People and People with Mental Health Conditions

Artists should find out as much as they can about the participants before an engagement so they are best placed to support participants.

Artists and organisations should:

• determine access requirements and ensure these are met, including planning for carers and/or support staff to assist

• obtain NDIS worker clearance if required by organisation

• be aware of changing terminologies

• treat participants as individuals

• clarify that the artist is responsible for the participant’s artistic needs, and that the support staff are responsible for the participant’s accessibility needs

For information, see Access Rights for d/Deaf and Disabled People. 

Contracts and agreements between artists and host organisations are essential.

The agreement should capture the negotiated arrangements including:

• expectations, including the aims and outcomes and specific inclusions or exclusions (i.e. skills or concepts, attendance to meeting or events)

• responsibilities including the purchase of materials, set up and pack down, workshops and/or install of work

• third-party involvement and expectations about communication and payment

• timeline for the learning program or workshop

• remuneration and superannuation contributions, see Payment Standards and Superannuation

• insurance responsibilities for artist and host organisation, see Insurance

• workplace health and safety responsibilities, see Workplace Health and Safety      

• intellectual property and ICIP arrangements, see Intellectual Property and First Nations      

• crediting and authorship arrangements, particularly when work is co-authored

• privacy and confidential information

• expectations about behaviour management and duty of care

• consent and permission requirements, in particular for photography and film

• in-kind contributions

Memorandum of Understanding and Heads of Agreement

Artists may be engaged through a less formal agreement using a memorandum of understanding (MOU) or heads of agreement (HOA). MOUs are generally used to document a relationship of goodwill between the parties to the MOU. HOAs specify the intentions of the parties to enter into a formal contract at some point in the future and sets out a summary of the provisions to be included in that future contract.

MOUs and HOAs are generally not legally binding but may be in certain circumstances. See Arts Law’s article on Contracts and Other Forms of Agreement.           

Remuneration for engagement in learning programs and workshops should take into consideration:

• preparation and development time

• face-to-face time facilitating or teaching

• set-up and pack-down time

• other times the artist is required to be present (such as meetings or an event)

• travel and accommodation costs 

• access costs

• cost of materials

• equipment purchases or depreciation     

• number of people participating

• acquisition of work created solely by the artist during the activity

• licensing fees for images and audiovisual     

An appropriate fee should also acknowledge use of the workshop facilitator’s creative skill, knowledge, qualification, experience and know-how.

For more information on remuneration, see Payment Standards.     

Responsibility for workplace health and safety (WHS) should be negotiated and captured in writing in the agreement.

For more information, see Workplace Health and Safety.

All children and young people deserve to have their creative contributions acknowledged.

The education sector is connected to copyright in significant ways, and the Copyright Act 1968 (Cth) reflects this unique relationship. The statutory licence, set out in the Copyright Act 1968 (Cth), allows educational institutions (individual educators not eligible) to copy and share text and images in ways that usually require permission, provided that equitable remuneration is made to the Copyright Agency so that it can be distributed to the creators of the content.

The Copyright Act 1968 (Cth) gives artists control over the reproduction of their work. This includes all artistic creators, including children and young people, not just those considered ‘professional’.

For more information, see Intellectual Property and visit the Copyright Agency.