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Critics' Corner
11 June, 2008  

The Bill Henson girlie photo drama set off a wave of legal advice and opinions. Now that the mist is clearing it’s time to check whether we’ve been enlightened by the “debate”. Our team at Critics’ Corner reviews the tangled mess that happens when art collides with law

imageBill Henson snaps are reappearing on walls and in salons across the wide brown land and the decency brigade have been sent to their rooms to rummage through old Enid Blyton books and plot The Next Assault.

Now that Nicholas Cowdery, the NSW DPP, has decided that the prospects of a successful prosecution against the Roslyn Oxley gallery and the photographer are slim to non-existent, now is a good time to reflect on some of the legal and quasi-legal notions that surfaced during this fresh round of Mary Whitehouse v Quentin Crisp.

Interestingly, Hugh Macken, the President of the New South Wales Law Society, had his hand up on May 25 to be the first in class with the correct answer:

“What is relevant to the commission of a crime is the intention. If the intention is to produce a work of art, and solely to produce a work of art, then I can’t see how a crime has been committed.”

Three days later Robyn Ayres, the executive director of the Arts Law Centre, also gave Bill a clean bill of legal health, so to speak:

“It is very unlikely that either Bill Henson or Roslyn Oxley9 Gallery would be charged under s.91G or s.91H of the Crimes Act 1900 (NSW) as neither the artist nor the gallery have demonstrated any intention to use a child for a pornographic purpose, or produce, disseminate or possess child pornography.

“It would be difficult to successfully convict either the gallery or the artist under s.578C of the Crimes Act, which creates the offence of publishing an indecent article.

“That section requires the court to take into account both artistic merit and contemporary community standards in determining whether the photographs are indecent Contemporary community standards are ‘those currently accepted by the Australian community’.”

imageGod knows what Hetty Johnson, the Devinals, radio shockers, The Daily Smellograph, numerous politicians and other ratings-hungry guardians of public decency would say if an exhibition of Robert Mapplethorpe landed in the country.

Once Donald McDonald’s Classification Board said the Henson photos were “safe for children” then it was all over bar the remnants of the shouting from the “disgusting … revolting” brigade . The board said:

“The image of breast nudity … creates a viewing impact that is mild and justified by context and is not sexualised to any degree.”

At least the National Gallery of Victoria stood its ground, refused to remove Henson from its walls and saw the barge-arsed coppers off the premises, empty handed.

NGV chairman Allan Myers QC said that the controversy reflects “Australia’s immaturity and intolerance of artistic expression”.

Myers is participating in a panel discussion on the topic “Disturbing Australia – art or porn”, hosted by Melbourne Law School next Monday (June 16).

Former Victorian judge (Gorgeous) George Hampel came out with the thought that the young girl who had been photographed naked by Henson, and who appeared on the Oxley gallery invitation, might be able to sue for damages if she feels in later life hurt by the experience.

Dr Anne Smith from the Royal Australasian College of Physicians agreed:

“Can she change her mind about the public display of the photographs? For the girl, long-term regret is possible, so is resentment that she has been exploited.

“The harm might not be immediately apparent, even to the girl in the photos.”

imageAs it happens, Zahava Elenberg, who was 12-years old when she posed for a series of shots by Henson, shows no signs of going for the money. She said she was involved in the artistic process and that the work is art, not porn.

Maybe the parents could be prosecuted. Dr Smith, again:

“Who provided consent for her to be photographed in this way? Should her guardians be investigated and possibly prosecuted?”

The legal possibilities are rich and exciting.

The parents of the model on the Oxley gallery invitation fessed-up, saying they gave permission and that Bill Henson is a long-standing family friend.

Brian Walters SC, from Liberty Victoria, said he did not believe the photos were pornographic or that they breached the law, and that consent was not the issue:

“A girl can’t consent to sexual acts against her, but I don’t think that is what this is, so she and her parents together probably can consent … I can’t say whether it was wise [to give consent].”

And where would a burning national issue be without the insertion of commentary from the ubiquitous Greg Barns?

He thought that since the community was widely divided over the photographs a jury could only remain in reasonable doubt and not convict. He added:

“We would be using the sledgehammer of the criminal law in circumstances of artistic endeavour.”

The member for Wentworth, Malcolm Trunchbull, was not going to be left out of the fun. Strangely enough, he was at loggerheads with his esteemed leader, Dr Bronwyn Nelson.

“We live in a free society and it’s important that artists, writers and journalists be able to express themselves freely … within the law.

“Freedom is what made this country great,” said Trunchbull.

Frank Sartor who, amazingly, is NSW Minister for the Arts, spoke for many when he said the photos “crossed the line”:

“I can say that I’ve been shown some of the images and I don’t like them.”

imageDavid Levine, a former NSW Supreme Court judge, former chairman of the Arts Law Centre and son of Judge Aaron Levine (seen here together), who overturned the Oz obscenity conviction in February 1965, told Justinian:

“Context, as has become apparent, is everything. Starkly, a child younger than Henson’s models is skilled in finding, by a simple key touch, material more challenging.

“In my father’s era it was all on the dark, closed secret side – Eugene Gossens, and never being free and able to see, let alone read, Lady Chatterley, Last Exit to Brooklyn, Myra Breckenridge, etc.

“That’s why the court cases themselves were so controversial. In those days the context was community ignorance of the extent of artistic and literary creativity (or simply ‘work’). Today it is virtually ungovernable community access.

“I do believe the late Aaron Levine DCJ would be spinning in his grave. Has nothing changed after nearly 50 years?”

Later D. Levine emailed to point out an advertisement in the sydney magazine.

“We are looking for Sydney kids … This is your chance for your child to be photographed and feature in a limited edition coffee table book called ‘Kids of Sydney’.”

It’s a fund raising idea for the Starlight Children’s Foundation, but as Levine, who is chairman of the Serious Offenders Review Board, said:

“I spent Tuesday and part of yesterday at Goulburn gaol interviewing some blokes who would be turned on merely by the ad itself.”

imageThat gets close to the jugular point. If art in art galleries and on gallery invitations is reduced to the level where it won’t arose the infantile or the mentally disturbed then life would approach a Cromwellian austerity, with possibly only Cardinal Pell and his chorus celebrating.

Maybe the thing wouldn’t have blown up at all if the Dentist hadn’t said the work was revolting. Then again, he is a Christian from Queensland.

To get some badly needed “context” let’s go to Queensland, circa 1957. The Queensland Literature Board of Review had banned two girly magazines, Weekend and Crowd.

Injunction proceedings came before Chief Justice Mansfield. G. Hart QC represented the board.

Mansfield: I have had to read it, and I do not think I am any worse off from being forced to read than I was before.

Hart: Your Honour is the Chief Justice of Queensland!

Mansfield: I am not the only person who would have, what I think I have, a moral standard.

Hart: There are not many.

Hart said that the board objected to Jayne Mansfield (no relation), the cover girl on Weekend, having dyed hair.

Mansfield: What does that matter?

Hart: She is a platinum blond.

Mansfield: What does that matter?

Hart: It is just part of the whole build-up.

Mansfield: The fact that she does that to her hair?

Hart: No, not in itself. The build-up emerges with the other things and the dyeing of the hair. Some people with excellent morals dye their hair. However, it is a common thing among prostitutes to dye their hair.

According to Peter Coleman’s Obscenity, Blasphemy, Sedition the Weekend case went to the High Court on a constitutional question.

Gar Barwick argued that the board’s prohibitions were an interference with interstate free trade and that this could only be justified if it amounted to a “regulation of trade”.

The example given was that it was fair enough to prohibit by regulation the importation of bad peanuts into Queensland, because experts “can locate the objective badness of the peanuts”.

However, the Queensland Literature Board of Review, as is the case with the current Classification Board, is not a body of experts. Anybody can be appointed to it holding any whacko view as to what is “objectionable”.

Everyone is an expert.


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