Prior to the Melbourne Art Fair I asked Barry Keldoulis some questions about the censorship of art by Paul Yore and Tyza Stewart at Sydney Contemporary in 2013 and assured him that his replies would be printed in full.
Barry Keldoulis: Thank you Mark, and some of my answers are going to be fairly long winded as to answer the question properly will require background information on the circumstances.
Black Mark: What I am concerned about is what happened at the Sydney Contemporary. In your statement about removing the work of artists at Sydney Contemporary you were definitive that the artists were on the wrong side of the law, how were you able to achieve this degree of certainty with a law that has never been tested in court?
Barry Keldoulis: I think it’s worth noting firstly that some of the work of Paul Yore and Tyza Stewart were removed form the fair, and those that were not found to contravene the laws of NSW remained on display. I am not a lawyer or a policeman, so when it became clear that there was some elements of the Yore installation that may contravene the law, legal expects were asked to view the work. Three barristers who specialize in this particular area, typically and often successfully defending the accused, came and spent a couple of hours examining the installation.
It may be worth noting here that I had spoken to Paul on a number of occasions and sought his assurance “that nothing in this work will contravene the Australia Council’s Protocols for Working with Children in Art or relevant existing laws in NSW.”
I had reminded Paul that the laws in NSW were different to the laws in Victoria. Indeed they are considered by many to be the strictest in the land, and do not refer to ‘child pornography’ but the wider term ‘child abuse material’.
His written response to me was : “I understand and obviously accept these conditions for my new work at Sydney Contemporary’s installation section.” And furthermore, “I am acutely aware of the need to respect relevant laws especially in relation to children”.
However, the barristers found that, and I quote, “The Large Installation, I am afraid offends in many varied ways the provisions of the Crimes Act legislation in NSW. The Large Installation is interesting and intrinsically devoted to the display of boys, probably under 16 years of age in Child Abuse Material under S91FB of the Crimes Act 1900 (NSW). The definitions of these Materials are wide and includeS91FB(1) (b) depiction of child (under 16), S91FA, and furthermore in “sexual pose or implied in presence of another in sexual pose or sexual activity, or private parts of person apparently involved in sexual activity.”
They added, “Accordingly, the Installation in spirit and in detail come within the definition of “child abuse material” and is fatally doomed to probable conviction of your client for possession and /or exhibition.”
My understanding is that conviction would mean a jail term. Some seem to think that Paul should go to jail. I acted to protect him from that eventuality.
But it was not as simple as that. The legal experts also informed us that under the laws of NSW that “The mere possession of such material is potentially an offence.”
This meant that my initial idea to bring one of the theatrical curtains in the space forward in front of the work and signpost it to only allow adults in and to warn of possible offence, as is often done in institutions, was not an option. With Child Abuse Material, the existence of the material is the problem, not its exhibition.
And in these circumstances, the exhibiting institution is considered the ‘publisher’, which meant that the staff of Carriageworks could be looking at conviction for possession and /or exhibition. People who have a long history of being incredibly supportive of artists at the forefront of experimentation and diversity were also in danger.
Black Mark: Why do think that censorship is “in the best interests of all the galleries showing” (from your statement re: Sydney Contemporary)?
Barry Keldoulis: In this discussion and can be easy to forget that the event involved some 80 galleries and the work of hundreds of artists. Had the work been allowed to stay and become the subject of a police enquiry the media tornado would have sucked in all the oxygen and denied any attention to the hundreds of other intriguing and stimulating works on display.
Black Mark: Why do you think that acting as a cop in censoring art works is part of your role as director of an art fair? Why not wait for the real police to follow their normal procedures and wait for a report from the public and investigate?
Barry Keldoulis: I did not act as ‘cop’, but on advice from legal experts, and others. I took no pleasure in the proceedings, but acted in the best interests of the persons concerned.
An art fair, being open to the public and attended by tens of thousands of people, including children, does not seem the appropriate place to pursue this issue to it’s legal conclusion. However I think your suggestion is interesting. Perhaps the gallerist involved and who surely advises the artist on these matters, and may disagree with the legal advice we received, should take a space in NSW and re-create the installation in its entirety, and invite the police to have a look, remembering that possession is a crime, not just exhibition.
Black Mark: How does the diversity of income streams (galleries, sponsors etc.) of an art fair influence this position?
Barry Keldoulis: This was a legal issue around the possession and exhibition of Child Abuse Material, and ‘income streams’ had nothing to do with it.
Thanks again Mark for the opportunity to answer your questions with more than a sound bite.
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Obscenity laws are prima facie unjust because it is impossible for a reasonable person to know before conviction if something is obscene. No other crime is so open to such subjective interpretation. Although some crimes, manslaughter for example, do not require an intention to commit a crime, no other crime convicts a reasonable person acting in good faith. The obvious intention of obscenity laws is to force everyone to conform to the thinking of the dominate institutional power in this society.
We live in a society where laws have been made by the state, under the influence of the religious institutions; a society where both the state and religious institutions are currently under investigation for child abuse and the covering up of these crimes (The Royal Commission into Institutional Responses to Child Sexual Abuse). Why does anyone believe that such institutions have any moral authority or even any morality? Why does anyone tolerate the unjust and amoral dictates made by these institutions – because of the threat of violence?
“The State does not permit me to use my thoughts to their full value and communicate them to other men… unless they are its own… Otherwise it shuts me up.”
– Max Stirner, The Ego and its Own, 1845