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Australia: Call for writing ‘freedom of expression’ into arts legislation

18 April 2013

The right to freedom of artistic expression is currently not protected in Australia law, and censorship of artists happens all too often, according to 12 senior arts figures and the National Association for the Visual Arts.
australian-art-act

The Australia Council, the Australian Government’s principal arts funding agency, has existed in 40 years and is up for review. A draft for a new Australia Council Act was written to amend the function and structure of the council, and the government then made a public call for comments from the arts sector. Submissions to the related Senate inquiry closed on 11 April. The Bill is now on its second reading.

Several of the arts industry leaders noted in their replies that the new Australia Council Act fails to protect freedom of expression, and a couple of newspaper articles were published over this topic in the national press. Former Australia Council Deputy Chair Anne Dunn said most people in the arts had been pleased with the new Australian cultural policy, ‘Creative Australia’, so it was “a bit of shock” to see the legislation.

On 11 April 2013, The National Association for the Visual Arts (NAVA) sent a submission to the Parliamentary Inquiry into the Australia Council Amendment Act 2013, where one of the main points made in the submission were to include a new clause which states that the council must uphold and promote the rights of persons to freedom of expression in the form of art.

NAVA also suggested to add a requirement that: “the Council must, in the performance of its functions and the exercise of its powers have regard to the rights of persons to freedom of expression in the form of art.”

In the letter to the Parliamentary Inquiry, NAVA wrote:

“We believe it is essential that the amendments we propose be enshrined in the Australia Council Act to ensure that the functions of the Council are clear and legislated, and not decided subject to the views and predilections of the particular political or administrative leadership at the time. (…)

Having seen the results of a recent increase in censorship of artists, NAVA is very concerned at the removal of the responsibility of the Council “to uphold and promote the right of persons to freedom in the practice of the arts”. While it is important for the Council to have regard to the right of persons to freedom in the practice of the arts as a matter to be taken into account in the performance of its own functions (ref Clause 11), this does not empower the Council to be an advocate for and defender of this right on behalf of the arts community.

As is well understood, freedom of expression is a hallmark of a liberal democratic society. Unfortunately, in the absence of a Bill or Charter of Rights, this right currently is not protected in Australia law and censorship of artists happens all too often. NAVA frequently finds itself called upon to defend artists against unjustified constraints on their practice and believes this should only happen if they are breaking the law. This freedom is a principle which should be upheld and promoted by the Australia Council as the country’s pre-eminent arts agency and the role should be included in Functions in the Act ie: NAVA believes that the Council’s role should be strengthened by being required to be both an active advocate for artistic freedom of expression and applying these principles in its own decision making.

Recommendation: include a new clause in Functions as follows:

‘to uphold and promote the rights of persons to freedom of expression in the form of art’.

In addition to a requirement that:
‘the Council must, in the performance of its functions and the exercise of its powers have regard to the rights of persons to freedom of expression in the form of art’”


Downgrading protections for freedom of expression
Australian Arts Minister Simon Crean announced the review of the Australia Council on 19 December 2011. The purpose of the review would be to ensure that funding opportunities offered by the Australia Council reflect the diversity, innovation and excellence of Australia’s contemporary arts and cultural sector and that the Australia Council is well placed to support the goals of the National Cultural Policy.

Review co-chairs Ms Gabrielle Trainor and Mr Angus James provided Review findings to the Arts Minister in May 2012. The review made 18 recommendations for reform to ensure the Australia Council is best-placed to respond to the arts and culture sector of today and into the future.

Twelve senior arts figures have written to the Minister for the Arts Tony Burke to protest at sections dropped or missing from the Bill, the Australia Council Act, which is now before parliament.

They said the Bill downgrades current protections for freedom of expression, removes the key function of community arts and ignores the role of culture in national identity, including any acknowledgement of Indigenous arts. The letter says the Bill in its current form fails to measure up to the vision set out in the recently announced cultural policy Creative Australia.

The current Australia Council Act charges the Council to ‘uphold and promote the rights of persons to freedom in the practice of the arts’. The new Bill removes this function and merely includes the right to freedom of practice as a ‘matter to be taken into account’ alongside government policy and ministerial direction.

Creative policy consultant Deborah Mills, who spent many years at the Australia Council, said it was a concern that the Council would no longer actively promote freedom of expression. ‘That language has been toned down so that it is not an advocacy role but what I would see as a lesser role.’

She said the legislation did not acknowledge the importance of arts and culture for Australian citizens: “The right of the citizen to access the arts and to express themselves creatively has always been at the centre of the Australia Council and in the purpose of the Australia Council Act. It (This Act) is reducing the role of the Australian citizen to that of audience members. It should be about creativity not just consumption of culture.”

Executive Director of NAVA, Tamara Winikoff, said while the increased flexibility in the act was welcome the absence of these key sections failed to protect core values of freedom and community.

Arts leaders are worried that without a specific protections enshrined in law, freedom of expression could be easily trampled by a future bureaucracy with no specific mandate for these values.

“It’s very important that the Australia Council acts as a voice for freedom of expression that is the hallmark of liberal democratic societies ensuring even forms of expression that are edgy and challenge ring are given a platform to stimulate us and to think about to prevent the hegemonic ideas that would otherwise tend to conservatism,” Tamara Winikoff was quoted as saying by ArtsHub.

The Minister of Culture has not yet responded on these matters.


NAVA – 12 April 2013:
NAVA sends submission to Parliamentary Inquiry into Australia Council Amendment Act (PDF)
On 11 April 2013, NAVA sent a submission to the Parliamentary Inquiry into the Australia Council Amendment Act 2013.


Sydney Morning Herald / The Age – 10 April 2013:
Fears freedom of artistic expression under fire
The Australia Council could see its responsibility to champion freedom of expression for artists watered down under changes before the federal government. By Dewi Cooke, Deputy Arts editor


ArtsHub – 9 April 2013:
Arts leaders protest missing freedoms in OzCo Act
By Deborah Stone, editor of the ArtsHub


Australia Council for the Arts’s official home page:
australiacouncil.gov.au



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