Recognising Artists in prison: a review of the law and policy in Australia* (Position Paper)
The impetus for this research project and resulting paper was the Queensland Government’s 2009 introduction of sections 28A-28H into the Corrective Services Act 2006 (Qld), provisions that were apparently aimed at ‘ensuring that transfer of art are closely monitored and that it is an offence to privately sell prisoner artwork while a prisoner is in a corrective services facility’. These sections were introduced after there was some outcry after a victim of crime discovered a Queensland prisoner’s mother was selling artwork on behalf of the prisoner. Given the detrimental impact of these changes on the rights of artists in Queensland’s prisons in contrast to the potential rehabilitative benefits of prisoners developing an arts practice, Arts Law decided it was important to highlight the different legislative and policy positions between the states in an attempt to educate and foster change.
As the prison structure in Australian state and territory differs, the treatment of artwork created by prisoners while incarcerated also varies greatly. All states and territories have made progress in establishing rehabilitation programs. However, while it seems clear that prisoners will be able to or even encouraged to engage in arts-related work in all states and territories, intellectual property and moral rights in the resulting artistic work and prisoners’ rights in relation to the sale or disposal of such work, is generally less clear.
Arts Law supports the view that the recognition and encouragement of prisoners’ involvement in creative activities is beneficial to prisoners and society. Such activities have educational value as well as therapeutic benefits. In addition, prisoners may reveal artistic talents and obtain new career skills empowering them to reintegrate into society. Arts Law also supports the view that prisoners should be entitled to benefit from the sale and/or reproduction of their artwork while they are in prison, in the same way as they are entitled to benefit from other work.
 Explanatory Memorandum to Corrective Services and Other Legislation Amendment Bill 2009, p 2.
 See Second Reading Speech on the Corrective Services and Other Legislation Amendment Bill, 19 August 2009.
 See Karen Heseltine, Andrew Day & Rick Sarre’s research and public policy study, ‘Prison-based correctional offender rehabilitation programs: The 2009 national picture in Australia’, Australian Institute of Criminology (2011): http://www.aic.gov.au/publications/current%20series/rpp/100-120/rpp112.html (viewed 1 December 2015).
*This paper was written and edited over several years by Arts Law lawyers, Amber Dalrymple, John Berg, Anika Valenti, Rebecca Simpson, Robyn Ayres and UNSW intern Angelina Yurlova. The original research was undertaken by Alison Black and Elizabeth Clare, law students in the TC Beirne School of Law on a pro bono basis under the auspices of the UQ Pro Bono Centre and the supervision of Dr Peter Billings. We are also grateful for the pro bono support of Landers and Rogers.