Bill Henson – have community standards changed?

ARTS LAW CENTRE OF AUSTRALIA  www.artslaw.com.au                                                            

Bill Henson – have community standards changed?

According to Robyn Ayres, Executive Director of the Arts Law Centre of Australia, “it is very unlikely that either Bill Henson or Roslyn Oxley9 Gallery would be charged under section 91G or 91H or 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.”

Ms Ayres also stated that it would be difficult to successfully convict either the gallery or the artist under s578C of the Crimes Act, which creates the offence of publishing an indecent article.

The reason Arts Law believes it is unlikely that the artist or the gallery will be successfully convicted under s578C is that the section requires the court to take into account both artistic merit and contemporary community standards in determining whether the photographs are indecent. Previous cases state that contemporary community standards are “those currently accepted by the Australian community.”  The courts look at what the community accepts and has accepted for years. They must also look at the context of the publication as well as the intended audience. What is indecent in one context may be acceptable in another.

Ms Ayres said “I would question whether contemporary community standards have changed to such a degree that the naked body is in itself indecent or pornographic. Any consideration of Bill Henson’s work should be made objectively, taking into account both the artistic merit and community standards. The fact that some viewers will sexualise images of children, however innocuous, raises the question whether all images of naked children should be criminalised? Such a conclusion would be a significant departure from the current standards which apply to both photography and the visual arts in Australia.”

Arts Law was established in 1983 and is the national community legal centre for the arts in Australia. Arts Law provides legal advice, publications, education and advocacy services each year to over 2500 Australian artists and arts organisations operating across the arts and entertainment industries. One of the issues Arts Law advises on is classification and censorship.