Friday, January 20, 2012

Archbishop of Melbourne v. Council of Trustees (The Australian "Piss Christ" Case)

Archbishop of Melbourne v. Council of Trustees
96 A. Crim. R. 575 (VSC), 1997 WL 1882161

This 1997 case is the last known attempt to invoke blasphemy laws in Australia. The fact pattern is an interesting one, as were the events that transpired after the case. The dispute arose after it became known that the National Gallery of Victoria was planning to display a photograph by the artist Andres Serrano that, in the court’s words, “shows the crucified Christ as if enveloped in a mist which is infused with the colours of a red and gold sunset. Of itself, it is not only inoffensive, but might be thought to be a reverent treatment of a sacred symbol of the Christian Church . . .” However, the title of the artwork leaves the viewer with a far different understanding. Serrano labeled the photograph “Piss Christ”, and took the photograph by immersing a crucifix in his own urine.

A controversy predictably ensued in Victoria, and the Archbishop of Melbourne initiated civil proceedings for an injunction to prevent the Gallery from displaying the photograph. He based the application for the injunction on the grounds that the photograph constituted an “indecent or obscene figure or representation” under the Summary Offences Act, and (more importantly for our purposes), that it violated “the common law misdemeanour of publishing a blasphemous libel by reason of the fact that the photograph is so offensive, scurrilous and insulting to the Christian religion that it is beyond the decent limits of legitimate difference of opinion and is calculated to outrage the feelings of sympathisers with or believers in the Christian religion.”

Interestingly, the Gallery did not question the Archbishop’s standing to seek the injunction or deny that the photograph was offensive to a large number of Christians. In response to the blasphemous libel allegation, however, the Gallery argued that “blasphemous libel is not now, if it ever was, an offence known to the law of this jurisdiction; and even if such an offence presently exists, it is inappropriate to restrain a threatened breach by use of the civil remedies which the plaintiff seeks to invoke.”

In deciding whether application should be granted, presiding Judge Harper briefly summarized the state of the English law of blasphemous libel. Stating that “[t]he law in England does not necessarily coincide with the law in Victoria[,]” he then noted that Victoria had never recognized an established church, that the Australian Constitution forbids the Commonwealth from establishing a religion, and that only one prosecution for blasphemy had been initiated in Victoria in the past century and it was withdrawn prior to trial. However, after concluding that “[i]t may be . . . that the offence of publication of a blasphemous libel has lapsed through desuetude[,]” Harper notes references to blasphemous libel in a 1987 Federal Court decision and in a Victorian statute.

Harper finds it unnecessary to decide whether the offence has lapsed or not because he concludes that, even if it does exist, a key element of the offence is that “the matter complained of must raise the risk of a breach of the peace, perhaps general civil unrest.” He then states that “[t]here is no evidence before me of any unrest of any kind following or likely to follow the showing of the photograph in question” and denies the application for the injunction on that and unrelated grounds.

After Judge Harper’s decision, the Gallery proceeded to display Serrano’s photograph. As Bede Harris noted, Vandals promptly damaged the work and the Gallery withdrew it, fearing injury to its staff should a subsequent attacks occur. In the Spring of 2011, “Piss Christ” was again vandalized while under display at a French gallery.

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