Australian painters and photographers may soon need to watch their step, as an overhaul of child pornography laws in New South Wales looks set to remove the defence of "artistic merit" from the statute books.

The issue arose when Police raided an exhibition of works by Melbourne artist Bill Henson in May 2008. They were responding to a public outcry over the picture of a naked 12-year-old girl featured on an invitation to the exhibition. The exhibition was closed, and 32 pictures were seized.

However, the NSW Director of Public Prosecutions, Nicholas Cowdery, QC, declined to prosecute, while the Classification Board declared the images were not pornography. The controversy was taken up by the State Government, which instructed the Child Pornography Working Party to review the existing laws and to create a clear distinction between child porn and art.

This they have now done with the simple recommendation, contained in a report presented last Friday, that art cease to be a consideration when determining whether an image is or is not pornographic.

This conclusion has been supported by NSW Attorney-General John Hatzistergos, who said that any new laws should apply to the production, distribution and possession of child pornography. He added: "The fact that it is art cannot be used as a defence. The report recommends that once such material has been found to be unlawfully pornographic, whether or not it is intended to be art is irrelevant."

This conclusion has been welcomed by Hetty Johnston, chief executive of Child protection group Bravehearts. She said: "This makes the intention clear that legislatively the mood is to change on child sexual exploitation.

"The arts community might be concerned about the loss of their rights but I'm more concerned about the rights of children."

She also expressed the hope that the legislation, would be replicated in other parts of Australia, such as Tasmania, South Australia and the Northern Territory.

This issue goes to the heart of what is considered pornographic, with a growing tendency in some legislatures to regard nudity – particularly nudity of children – as sexual and therefore, by definition, pornographic, irrespective of the content of the picture.

Back in October 2008, a New York art gallery responded to the Henson controversy by deleting images of naked adolescent girls from an online promotion of a new exhibition by that artist.

In autumn 2009, the Tate Gallery removed a picture of a young Brooke Shields from public display after the police suggested that it might fall foul of laws on child pornography.

Whilst it is easy to understand the intention behind this proposed change to the law, it is less easy to see how it will work in practice. In the UK, the Obscene Publications Act 1959 specifically exempts material produced for artistic, scientific or literary purposes. Removing these exemptions would see huge swathes of material – from books on medieval art, to modern medical textbooks – at risk of prohibition.

Even the extreme porn laws much criticised by libertarians within the UK make it plain that whether material is deemed to be pornographic or not will depend on the purpose for which it was created (i.e., material created for purposes of sexual arousal is likely to be deemed pornographic). Whilst this is not a full-blown artistic exemption, it is clear that the scope exists within the legislation for the courts to build one into the law.

Assuming that the NSW government gets its act together on these proposals, they could be brought before the State parliament within the next month. ®