Freedom of Expression

Freedom of Expression

Freedom of expression is purportedly guaranteed by various UN declarations and conventions to which Australia is a signatory.

However, unlike in the USA for instance, there is no domestic constitutional guarantee of freedom of expression in Australia and consequently Australians seem more constrained by laws of defamation than US citizens. However, there was a ruling by the High Court some years ago that gave a sort of guarantee of freedom of political expression as an implied intention of the Australian Constitution.

In music, issues of freedom of expression arise around lyrics/texts or related images rather than the music itself. (This is not the case in some other countries.) Limitations on such freedom are in theory the same as for the general population, although artistic expression tends to be a little less constrained. For instance, it is possible to mount a defence that the intention is satirical. Satire has a place in artistic work but less plausibly in ordinary discourse.

The recent controversy around the Bill Henson photographs, which saw art works removed from galleries by police or gallery managers, appeared to be based on a view of ‘community standards’ as they apply to perceived sexual content and the protection of minors, rather than defamation. The writer has been approached by the press to comment on moves to strengthen constraints on the times at which music videos and recordings claimed to be unsuitable for children can be broadcast. Here again, presumably, the material of concern to the protagonists is textual or is about the visual presentation rather than the music per se. Such a constraint would require censorship classification of such content.

Music Censorship in Australia

There is indeed a ‘self-regulatory’ music industry panel, created on the instigation of the previous government, charged with classifying audio-recordings according to the content of the texts. The classification has to be shown on the packaging when offered for sale. The classification process, the Recorded Music Labelling Code of Practice, is administered by ARIA and AMRA (Australian Music Retailers’ Association).

Recordings are either not classified (i.e. contain no contentious material according to the classification criteria), or are classified at one of three levels of increasing ‘coarse language and/or themes’, with the third level not to be sold to people under 18 years of age.

Those are classifications intended to advise the public but not to prevent sales (and therefore freedom of expression). There is a further level of outright censorship, described thus:

Exceeding Level 3 – Not To Be Sold

These recordings are not permitted to be released and/or distributed by ARIA members or sold by AMRA members:

• Product containing lyrics which promote, incite or instruct or exploitatively (“exploitative” means appearing to purposefully debase or abuse for the enjoyment of listeners, and lacking moral, artistic or other values) or gratuitously (“gratuitous” means material which is unwarranted or uncalled for, and included without the justification of artistic merit) depict drug abuse; cruelty; suicide; criminal or sexual violence; child abuse; incest; bestiality; or any other revolting or abhorrent activity in a way that causes outrage or extreme disgust to most adults.

For more information, go to the ARIA website.

The classification of music videos and other audio-visual productions is in the hands of the Office of Film & Literature Classification which administers the National Classification Scheme.

Freedom of expression can be limited not only by direct government intervention by also by sanctions or the threat of sanctions (‘chilling effect‘ —> self-censorship). Whereas the structure of the Australia Council prevents the responsible government minister from requiring or denying funding to a particular artist or project, all the other arts funding bodies, federal and state, can be directly instructed by the minister. Often, the Minister takes a hands-off role; however, as the people’s elected representative, he is entitled to make decisions that may or may not accord with the recommendations of the advisory body. We have reason to be uncomfortable if this power is used to block projects that take an opposing political view to his own, or that have the possibility to be controversial, or are simply not to his taste. An atmosphere grows around this: offend the Minister, lose your funding. It is interesting that artists seem happy to lay into the Australia Council but one almost never hears criticism of the state arts ministries.

The guarantee against censorship afforded by the Australia Council structure is taken as a major reason for its retention by some industry organisations such as the ArtsPeak coalition.

There are also occasional instances of what amounts to private inhibitions on freedom of expression, perhaps seen more in the USA than here. Corporate interest in sponsoring an arts activity can disappear if the work becomes publicly contentious, and sometimes such contention is fostered by interest groups. Of course, the notoriety may be good for sales and decisions can be made based on commercial assessment rather than principled judgements about freedom of expression or other moral issues.

The Australian arts organisation most strongly active against censorship at the moment is probably that National Association for Visual Arts (NAVA). Check the NEWS DESK at its website.

Lawyer Julian Burnside gave a relevant paper to the MCA Annual Assembly in 2004. You can read it here.

For a global view of the application of censorship to music, go to the website of the Copenhagen-based Freemuse.

The author has written at greater length on this issue in a study for the International Music Council and UNESCO.¹

Issues

Sedition

The inclusion of sedition as an offence under the anti-terrorism laws caused considerable concern in the arts sector and a sustained advocacy effort led by the National Association for Visual Arts. Australian governments seem perfectly willing to manufacture alarm from which they can then rescue us with legislation that restricts the civil liberties supposedly of the “enemy” but actually of everyone. Does the music sector have a position on this matter?

Community Standards and Child Protection

The Bill Henson affair raised some legitimate issues. The antagonists to his work believe that artistic merit was irrelevant to the fact that young teenagers had been photographed nude and the photographs put on public display, and that even if they and their parents agreed to this at the time, they were not yet of an age where they could safely be given the right to make such a decision. Henson’s defenders stated that there was nothing “pornographic” in intent or outcome and that although in principle, there might be an issue worth considering, the remedies proposed by the antagonists were basically insupportable. NAVA, having organised Henson’s defence but also some public debate, is now putting together a code of practice to be applied to artists’ work with children.

At the aforesaid public debate, Clive Hamilton, a man normally associated with a small ‘l’ liberal viewpoint, observed that the arts could not simply claim exemption from any form of “censorship” or constraint. There always had been censorship.

The question is how the limits are defined. Although the Henson affair seemed to be handled about as badly as possible by the police, there is a genuine issue which can be more or less resolved through dialogue and consequently, limits (blurrily) defined. The music sector might find itself obliged to engage with the issue if there were a challenge to the increasing use of children in a sexual context in popular music and music videos.

The Recorded Music Labelling Code of Practice

Without intending at all to be critical of the administration by ARIA and AMRA of the Recorded Music Labelling Code of Practice, there is no discussion known to the writer about its principles or decisions. Perhaps there is a need for more transparency.

Statutory Independence and Government Censorship

It was noted that some regard one of the Australia Council’s great virtues as the independence of its funding decisions from government dictate. The downside is that, at least in the perceptions of some, governments do not like such independence and consequently, lacking the prerogative to make the funding decisions, decline to provide funding. It is pointed out that over quite a long period, arts funding through state arts ministries where decisions ultimately are in the Ministers’ hands, increased while Commonwealth funding through the Australia Council lagged. On the other hand, there are plenty of instances where Ministers with the prerogative to do so (including Commonwealth Ministers) have made appalling interventions, refusing funding to arts projects that present an opposing political viewpoint, or offering funding to projects that fit their personal enthusiasms, or serve their political interests, or buy votes…

It is a long time since the music sector discussed this issue. Statutory independence is the most principled position but it is possibly argued at a financial cost. Do we support it?

Constitutional Guarantees

At some point, there could well be a proposal for a Bill of Rights in Australia and such a bill would almost certainly include a guarantee of freedom of expression. It is an issue on which the music sector should have a position.

Author

Richard Letts. Part of briefing paper for MCA summit, Australian Musical Futures: Towards 2020, Sydney 5 September 2008.