Today’s morning papers cover two controversies about art. The pictures say it all:
Queensland painter Van Thunh Rudd (pictured, centre), who has a history of poitically provocative art and clashes with authority, has had his subtle depiction of Ronald McDonald burning a monk with an Olympic torch barred from an exhibition being run by Melbourne City Council. The MCC claims that the work doesn’t fit the ‘Ho Chi Minh City’ theme and breaches trademark law, whereas Rudd claims that the figure on the left depicts a famous 1963 self-immolation in that very city, a human rights protest that contrasts with globalism, represented by Mr McDonald and his torch. Instead, he alleges, the refusal is censorship by the MCC’s pro-Chinese mayor. If Rudd is right, then Charter implications are obvious, as the MCC is a public authority (Charter s. 4(1)(e)) and cannot act incompatibly with Rudd’s right to freedom of speech unless a law makes it reasonable for it to do so (Charter s. 38). Is there a law that makes it reasonable for a public authority to reject an otherwise eligible artwork from an exhibit on political grounds?
Meanwhile, up in Sydney, Melbourne photographer Bill Henson, has had his exhibition of photos of landscapes, architecture and naked kids closed down by the NSW police, egged on by talkback radio and child abuse campaigners. The police are concerned that the nude photos – of 12 and 13 year-olds – may be child pornography, which has the following definition in NSW:
“child pornography” means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).
Henson and his supporters claim the photos are art (and taken with the consent of children and parents.) However, Van Thunh Rudd’s uncle, Kevin Rudd, has joined a line of politicians falling over themselves to declare that the photos are ‘absolutely revolting’, don’t let ‘kids be kids’ and have no artistic merit. The first two opinions seem to be difectly relevant to the definition of child pornography, wheras the last would foreclose the third of the three relevant defences in NSW to disseminating child pornography:
(a) that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography, or
(b) that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC), or
(c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose…
The middle defence may not help much either, as the National Classification Code says that an RC publication includes:
[p]ublications that… describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not);
The Publications Guidelines add that ‘sexualised descriptions and depictions of nudity involving minors under 18 generally warrant ‘RC’ classification’. ‘Sexualised nudity’ is defined to include ‘Includes poses, props, text and backgrounds that are sexually suggestive.’ Yikes. The NSW offence carries a penalty of ten years in prison. But at least Henson has the defence of artistic purpose, there.
Henson’s real problems are in his home state of Victoria. According to today’s paper, he took the photos in his Melbourne studio. Given Victoria’s laws, any defence he raises based on artistic merit may depend on the support of the Charter.
child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context
Not only does it cover 16 and 17 year olds, but it doesn’t contain the requirement that a reasonable person not be offended. As well, the only defence to procuring a child for child pornography is this one:
(2) It is a defence to a prosecution for an offence against subsection (1) to prove, in the case of- (a) a film; or (b) a photograph contained in a publication; or (c) a computer game- that at the time of the alleged offence the film, publication or computer game would, if classified, be classified other than RC or X or X 18+.
Note that this is narrower than the NSW equivalent, where an X rating would be a defence. As well, there is no defence of artistic merit for procuring or (for actual under 18-year-olds) possession. The procuring offence carries a ten year penalty and – it might be thought – is a more serious crime than possession or dissemination. There’s also an offence of being the party to ‘an indecent act with or in the presence of a child under 16’, which also carries ten years. Consent – either of the child or the parent – is not a defence, of course.
So, in Victoria – putting side the judgment calls of the Commonwealth’s Classification Board when it comes to naked photos of 13 year-olds – just about everything depends on the meaning of ‘indecent sexual manner or context’ and the related criminal law question of whether Henson knew that his photos would fit that definition. Clearly minds can differ on these questions. But that’s where the Charter might come in, as it requires that Victorian statutes, where possible, be interpreted compatibly with human rights. The problem is that there are two competing rights:
15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds
17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
Note that both rights are subject to reasonable limtiations by laws, and that the right to freedom of expression in particular can be subject to ‘lawful restrictions reasonably necessary’ to protect public morality. But note also that Victorian courts interpreting Victorian statutes, including the Charter, may consider releavnt overseas decisions. As discussed in a previous post, it is clear that Victoria’s laws on child pornography would not pass muster in North America. If a Victorian court followed those decisions – but felt unable to twist the Crimes Act‘s words to fit them – then they could issue a declaration of inconsistent interpretation. That wouldn’t affect Henson, but he could hang it up at his next gallery exhibition in place of his photos – or maybe (if he’s very unlucky) on the wall of his prison cell…