God does not live in Victoria
By Kate Gilchrist, former Arts Law Centre of Australia Solicitor, first published in Art Monthly December 1997.
The National Gallery of Victoria closed an exhibition of works by American artist, Andres Serrano, on 12 October 1997 after two youths attacked the work Piss Christ, which shows a crucifix immersed in urine, with a hammer. The youths were consequently charged with criminal damage and burglary. Staff of the gallery were injured in the incident. Dr Timothy Potts, director of the gallery, explained the decision to close the exhibition on the basis that the gallery could no longer guarantee the security of the visitors and staff or of the works of art. This was the second physical attack made against the work in as many weeks. The first (unsuccessful) assault on Piss Christ had involved a man who had tried to remove the photograph shortly after the exhibition opened. He pleaded guilty to charges of criminal damage and burglary and was given a one month suspended sentence.
There is widespread concern that the gallery's decision to close the Serrano exhibition as a result of physical assaults on a controversial art work by vigilantes has sent out the wrong message to artists and audiences about freedom of expression in Australia. Three days earlier Justice Harper of the Supreme Court of Victoria gave the exhibition the go ahead by refusing to grant an injunction to the Catholic Church to prevent the exhibition from opening on the ground that Piss Christ was blasphemous.
Justice Harper decided the case on a technical point: a civil court will not exercise criminal jurisdiction and will not restrain what may or may not be a legal act by using a civil remedy such as an injunction. Consequently, Justice Harper did not need to rule on whether the law of blasphemy exists in Victoria, or on whether the exhibition of Piss Christ would have constituted an offence of indecency or obscenity. Nevertheless, the judgment contains statements of principle which confirm the reluctance of judges to restrain artistic expression any more than is required by the general law of obscenity, which takes notice of the public interest of freedom of artistic expression.
The injunction
The most reverend Dr George Pell, the Archbishop of Melbourne, applied for an injunction on 8 October 1997 against the gallery to prevent the exhibition of Piss Christ on two grounds: that publicly exhibiting the photograph would constitute the criminal offence of blasphemous libel, and would contravene section 17 (1)(b) of the Summary Offences Act 1966 (Vic).
Dr Pell claimed that Piss Christ was so offensive, scurrilous and insulting to the Christian religion that it was beyond a legitimate difference of opinion. It was calculated to outrage the feelings of sympathisers with or believers in the Christian religion.
Blasphemous libel
English law recognises the criminal offence of blasphemous libel. Blasphemous libel protects against the publication of material which exposes the Christian religion to scurrility, vilification, ridicule and contempt. The material must have the tendency to shock and outrage the feelings of Christians.
The first recorded case of blasphemous libel in 1676 involved a statement that Jesus Christ was a bastard and whoremaster. In the more recent authoritative case in England the publication of a poem, describing sexual acts performed on Christ after his death and suggesting that Christ was a promiscuous homosexual, was held to be blasphemous libel.
The existence of blasphemous libel is unclear in Australia. Each State has its own criminal law which suggests different positions. The fact that in Victoria, under section 469AA of the Crimes Act 1958 (Vic), blasphemous publications may be seized, may indicate the possible existence of blasphemous libel in Victoria. In New South Wales the criminal offence of blasphemous libel is still recognised by explicit reference to the offence in the Defamation Act 1974 (NSW) and the Crimes Act 1900 (NSW). The Australian Capital Territory has adopted the NSW Crimes Act. In Tasmania there is express reference to blasphemous libel in the Tasmanian Criminal Code. In Queensland and Western Australia, where there are criminal codes, the offence of blasphemous libel has been abolished. The position is unclear in South Australia and the Northern Territory where there is no express mention of blasphemous libel in the criminal legislation. With respect to the Commonwealth, there is no express offence of blasphemous libel in the Crimes Act 1914 (Cth) although there is other Commonwealth legislation that refers to blasphemy.
The judgment of Justice Harper casts doubt on its existence in Victoria. It was Justice Harper's opinion that "Australia need not bother with blasphemous libel" because contemporary Australia is a pluralist, tolerant society.
Justice Harper distinguished the Victorian position from English law. He observed that blasphemous libel is an anachronism of English history from a time when the State was intrinsically linked with the Church, through the Ecclesiastical courts, and the unity of State and Church was not transported to the Australian colony. This position is supported by the fact that Victoria does not recognise an established Church and by section 116 of the Australian Constitution which forbids the Commonwealth making a law for establishing any religion. Alternatively, if blasphemous libel ever existed in Victoria then it may have lapsed through disuse.
The strongest argument against the existence of blasphemous libel is that it only protects Christian religions. Other religious faiths can not rely on blasphemous libel to protect itself against ridicule. Non-Christian religions such as Islamic, Jewish, Indigenous or other faiths are thus prejudiced by the operation of such a law. This was clearly a concern for Justice Harper given his description of Australia as a multicultural society.
As for reasons why blasphemous libel might still exist in Victoria, Justice Harper merely noted the existence of section 469AA of the Crimes Act (Vic) and stated that there is a body of law which suggests that blasphemous libel may exist in Victoria. He did not expand on this view in any detail, leaving the existence of blasphemous libel in Victoria in doubt.
If blasphemous libel did exist, Justice Harper held the view that it would have to be shown that the exhibition of Piss Christ raised the risk of a breach of the peace. He queried whether a breach of the peace would mean danger to a person or property or whether there must be widespread social unrest. Justice Harper found that there was no evidence before him of any unrest of any kind which was likely to occur as a result of exhibiting Piss Christ. Ironic, given subsequent events. One wonders how Justice Harper would have addressed this issue had the gallery not closed the exhibition and the Catholic Church applied for an injunction 3 days later.
Summary Offences Act
The Catholic Church also argued that Piss Christ breached section 17 of the Summary Offences Act (Vic) 1966. This provision makes it an offence to exhibit or display an indecent or obscene figure or representation in a public place and within the view of any person in that place.
Justice Harper discussed but did not decide whether Piss Christ was indecent or obscene, that is, whether it offends current community standards of propriety. He referred to dictionary definitions of "indecent" and "obscene" which tended toward ideas of sexual depravity rather than anti-religious sentiment and had regard to contemporary standards which Justice Harper described as "multicultural, partly secular and largely tolerant, if not permissive".
In relation to the visual arts, factors such as whether the work has artistic merit and the manner and place of display of the work are relevant. Justice Harper found relevant the facts that the National Gallery of Victoria is an institution of a very high standard and that Robert Hughes had included Piss Christ in his book American Visions: The Epic History of American Art.
It appears that if Justice Harper had to make a ruling on obscenity, he would have found that Piss Christ was not indecent or obscene.
Conclusion
Freedom of artistic expression in Australia is constrained by the laws of defamation and obscenity, and blasphemous libel may well be alive and kicking in States outside Victoria. Artists whose works address sexuality or religion or challenge current community standards risk attacks under these laws.
Is the Serrano affair an indication that we are becoming increasingly a censorious, conservative and intolerant society? Other recent examples of censorship in Australia have included Eugene Ho and Andrew Ewing, who created a billboard project for the 1997 Mardi Gras which addressed gay Asian stereotypes. They found their work removed by the South Sydney Council. And in 1996 Karen Linder, in conjunction with the Victorian College of the Arts and the construction company, Transfield Obayashi, created art work for the City Link Tunnel project in Melbourne. Linder's artwork consisted of text: "Why do you control?", "Why are you afraid of your vulnerability?", "Your superiority is an illusion". The Victorian government had the art work covered during the Melbourne weekend celebrations of the Kennett government's four year reign. Mr Kennett's response: "Every artistic form is free to express itself as it sees fit. But if the art community want, as they do, corporate sponsorship, they must decide whether to bite the hand that feeds them". The same Premier told those offended by Serrano's work to exercise their discretion and stay at home or go and see the Rembrandt exhibition rather than seek to have the exhibition closed.
Cultural terrorism
There must also be great concern regarding the emergence of puritan vigilantes. The theft of Tania Kovat's Virgin in a Condom from the Pictura Britannica exhibition at the Museum of Contemporary Art, Sydney followed the closure of the Serrano exhibition some days later. Robert Hughes described the Serrano vandalism as an example of loony right wing activism, something he had not previously associated with Australia. But it is not entirely new. Other examples are to be found in the vandalism of Gregory Taylor's Down by the Lake with Phil and Liz in the 1995 Canberra National Sculpture Forum. And again in 1995 Rox de Luca had three works stolen from an exhibition following complaints that the work was offensive.
There are of course a number of other questions which arise out of the whole Serrano affair which should be debated with fervour including the role of a public gallery to advocate free artistic expression or to prevent offence to members of the public; the artistic merit in work that shocks and the retaliation of the offended audience; the foreseeable controversy that accompanies artists like Serrano and works such as Piss Christ.
It was probably time for a scandal as large as the Serrano affair to bring public attention to these issues. It would be an unfortunate consequence of cultural vandalism if artists and galleries censor work out of fear of vandalism which is without question a criminal offence. Perhaps the judgment of Justice Harper will encourage rather than restrain artists from confronting those who hold out a right to control art.
