Sunday, July 6, 2008

Lowest Common Denominator Legislation of Morality

I recommend that anyone interested in the Bill Henson controversy watch the SBS Insight show “The Naked Eye”.

It included some interesting points about the availability of images on the internet and the extent to which they can be misused by paedophiles or “freaks” (whatever that term is supposed to mean).

Access on the Internet

The suggestion is that, because an image can be widely accessed on the internet, any freedom that we might allow the image in an artistic context (e.g., if shown in an art gallery) should not extend beyond the gallery to the internet.

In other words, where the image is displayed should affect the extent of the freedom to display it.

Classification of Materials

There is an element of this argument in the system that classifies materials for publication or exhibition.

The rating of the material is designed to prevent the exposure of inappropriate material to children and offence to people who might not wish to be exposed to the material against their will.

The Lowest Common Denominator

However, it is another argument to say that nobody should be able to access the material, because somebody considered to be inappropriate (e.g., a “freak”) might be able to access it on the internet.

I don't think it is fair to ban something because of how a paedophile or "freak" will use (or misuse) it.

This limits freedom in society to the level appropriate to a freak.

It reduces everybody to the level of the lowest common denominator.

The risk that a freak might get their hands on something should not be a relevant consideration in framing a Law with respect to an activity that can be engaged by anyone in the community (freak or not) otherwise within the Law.

A work of art can be appreciated without breaking the Law.

The fact that a paedophile might use it for some criminal purpose does not change the intrinsic nature of the work of art.

The Hammer Analogy

It is like saying that, because a thief can use a hammer to break and enter a home, hammers should be banned.

The point is that there is nothing intrinsically illegal about a hammer.

It is the use of the hammer (not the production or possession of the hammer) which should be the focus of any law designed to minimise theft.

Criminals use mobile phones to arrange criminal activity.

That doesn’t mean that phones should be banned.

Just because a freak eats a breakfast cereal, doesn’t mean that we should be prohibited from eating it.

The Gun Analogy

I can imagine this sort of argument for prohibition being a reason to ban guns.

A work of art has many possible uses. However, a gun is a weapon. It has limited intrinsic uses.

You can't actually use a gun except to kill, injure or shoot somebody or something.

This is the only purpose of a gun.

There is a much more direct causal connection between a gun and a crime.

Yet we don't totally prohibit guns. We only regulate them, arguably in an ineffective way that still allows guns to be used to kill or injure innocent people.

Access to Pornography

There is nothing intrinsically pornographic about nudity.

Pornography is defined in terms of the purpose of production of the material or the consumption of it.

A work of art is not treated as pornographic, unless it is designed to be pornographic.

The fact that some freaks might use the art or images for pornographic purposes shouldn't restrict the freedom of the rest of society to appreciate the work aesthetically.

How anyone accesses the material is irrelevant, if it is not intrinsically pornographic or illegal.

Save Us from the Meddling Puritans

I try not to read Andrew Bolt.

But when I do, I usually feel like I'm witnessing some sort of freak show.

This morning's missive in the Brisbane Sunday Mail got me reading because of the heading (reproduced as the title to this post).

I wondered whether Andrew had had a vision and suddenly turned into a supporter of Bill Henson.

Firstly, let me state my admiration for whoever conjured up the heading. It's not clear whether it was Andrew personally, it was probably some copy editor.

When I tried to find the article online, all I could find is the same article under the heading "Big Brother turns wowser" and "Return of the wowser".

It's obvious (and obvious why) I didn't feel inspired to use any of these as my title!

Reading beyond the heading, I discovered more and more evidence of Andrew's libertarian credentials.

Let me quote him:

  • A new breed of puritans is upon us and growing far too puffed up themselves. It’s increasingly urgent they be resisted.
  • Who unleashed these salon Stalinists? ... Who let them loose to flog us sinners into living lives more holy, by their grim creed?
  • Never have I seen so many preachers so keen to bully others for their own “good”.
  • From which circle of hell did all these finger-waggers spring?
  • Consider what plans they’ve already unveiled to cramp your life and set it to their stern order.
  • So drunk on bans are these people..
  • This isn’t meant to save a planet but to impose someone’s joy-killing morality.
  • It’s not just a madness confined to Australia, of course. The [new breed of Puritans] in every English-speaking land is now indulging its inner totalitarian.
  • It’s a Mein Kampf for meddlers - a defence of for-your-own-good bullying that is startling in its contempt for our right to decide for ourselves not just how to live, but even what to eat.
Can you understand why I thought Andrew had turned?
He was using the very same language that everyone frustrated by censorship, Puritanism and wowserism uses.
He was asserting the right of the individual against the State and those who would use it to legislate Morality.
What value was he seeking to protect? What economic, social or cultural activity was so fundamentally important that the State should not be able to interfere with it, that the activity should be above the Law?
Could he have been talking about Art? Could he finally see a nude body without thinking sex?
No, Andrew emerged from his study this week to defend the right to smoke cigarettes!
I don't really care what rights Andrew wants to defend. That's his right.
It just amazes me that he can't see any irony in these cultural debates:
When there's a right or value or activity that he wants to protect, his opponents are Politically Correct Wowsers and Puritans.
When there's an activity he disagrees with, the full force of the Law should be applied to prohibit and punish it.
Ultimately, he is saying that "what I think is and should be the Law".
He is only a libertarian when his own views prevail.
He is not libertarian enough to leave others to their views.
Ultimately, he is just as tempted by totalitarianism as the social and cultural adversaries in his morality tales.
He is not really "laissez faire" at all. He is more "regardez-moi".

Monday, June 16, 2008

Bill Henson and the Consent Fallacy: To Err is a Human Tempted to Forgive Devine

In her 14 June article in the Sydney Morning Herald, Miranda Devine is determined to convert the Bill Henson Case into an issue of consent, rather than art versus pornography.

This argument is bound to fail at a legal level on the current law.

The question is whether it might prevail as a basis for future change of the law.

No-One May Consent to a Criminal Act

It is not possible to consent to a criminal act.

In the context of the child protection laws, it is not possible for either the child or a parent to consent to a criminal act.

Who May Consent to a Non-Criminal Act?

However, to the extent that the DPP found that he had no reasonable prospect of convicting Bill Henson of a criminal charge, the issue ceased to be one of consent.

Because Bill Henson’s conduct was not illegal, a parent could consent to it on behalf of a child.

This is because, pending the age of majority, the right to consent on behalf of a child resides in their parents, because they are the legal guardians of the child.

Parents make decisions every day on what happens to their children. This is as it should be in any society.

Presumably, if there was a legal limit to the power of parents, any right would instead reside in the State.

However, the State could only acquire this right through the Law.

And the Law could only enforce the right to the extent of the Law itself.

The Limits of the Law

In the absence of a specific Law, to limit or erode parental power is to suggest that there is a limit to the power of parents which is above or beyond the Law.

Even if there was a moral case for this limit on parental rights, it would not follow that it could be enforced by the Law.

The Law exists to enforce itself, not what is above or beyond the Law.

To the extent that the Law can be used to enforce Morality, it is only because a particular aspect of Morality has been incorporated within the Law.

Miranda Devine actually acknowledges this without irony in her article, when she says:

“…police and government censors were always blunt instruments unsuitable for something that communal disapprobation is better placed to deal with.”

This is the same point I made in my 30 May blog:

“Morality is a social issue, not a legal issue.

“It can be enforced by social pressures within the social group that recognises the binding nature of the moral prescription.

“Morality is therefore its own enforcement mechanism.”

The Child’s Consent

The Devine position doesn’t seem to adequately respect the view of the child herself.

I think that most people would agree that, in the context of Art, the consent of the parents should not be used to override the objection of the child.

Instead, the artist should obtain the consent of both the child and the parents.

I have not seen any suggestion that Bill Henson did not obtain the child’s consent.

Instead, it appears that the child protection lobby argues that her consent was worthless.

This view appears to contradict the UN Convention on the Rights of Children (the source of the obligation to enact child protection laws) which states that children are entitled to the freedom to express opinions and to have a say in matters affecting their social, economic, religious, cultural and political life.

There is a point when you have to question whether the Devine lobby is genuinely motivated by the rights of the child as opposed to the desire to enforce their own morality on parents and children alike, through whatever means necessary.

Inability to Understand the Child’s Consent

This is implicit in a positive quotation of “family councillor” (I am not sure whether she meant “family counsellor”) Malcolm Robinson:

“It is, in developmental terms, certainly odd that these 12- and 13-year old girls would undress for Bill Henson and his camera.”

I wonder what this actually says about the Devine lobby and their ability to understand and empathise with children.

There seems to be a total inability to appreciate that the child might have willingly and proudly participated in the photo shoot.

As an adult, I can no longer think like a child. However, I have to ask whether any of the following thoughts were going through her head:

“This photo is a picture of me. It is a picture of me on a day that one day will be in the past and easily forgotten. I now have a record of me on that day. When I am older, I will have a material bridge between the me that I will be in the future and the me I was when the photo was taken. With this picture, I will live in the future and in the past.

“Through this picture, I will be able to see and understand how I have changed. I will remember the journey that I went on in order to become the new me.

“I would like people to look at this picture and see more than my breasts. I would like them to look at my head, my hair, my eyes, I would like them to try to imagine the real me as a person. I would like them to wonder what I was thinking at the time, just as we wonder what the Mona Lisa was smiling about.

“I am proud that I was able to help make a work of art. I am proud that someone thought I could be a work of art.

“It never entered my mind that people would look at a picture of the real me and say that it was dirty or revolting. This saddens me more than anything.”

One–Eyed Visions

The pornographic gaze, we are told, sees sex in images like this. It sees sex everywhere it looks.

However, to this extent, it’s not radically different from the moralistic gaze.

It too finds sex everywhere.

The only difference is that what one regards with desire or titillation, the other regards with shame.

We have to insist on the right to see human experience and the body, not with titillation or shame, but with reverence and respect.

We need to see with two eyes, not one.

Friday, June 6, 2008

The NSW Crimes Act Provisions on Child Pornography

The NSW Crimes Act contains two main provisions that deal with child pornography.

The Director of Public Prosecutions has formed a view that it is unlikely that Bill Henson could be successfully prosecuted under either.

However, there are at least two reasons for understanding what those provisions actually say:

• Bill Henson won’t be the last artist to have to employ a lawyer to defend the threat of charges under these provisions; and

• There will no doubt be an effort to change the provisions in the lead up to the next election.

There are two sections: section 91G and section 91H.

The best way to understand them is that one protects children and the other protects the audience.

It is most convenient to consider them in reverse order.

Section 91H (Production, dissemination or possession of child pornography)

This section focuses on the finished product (the child pornography or pornographic material) and its impact on the audience.

Child Pornography

The most relevant parts of the section define "child pornography" as material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:

(a) engaged in sexual activity, or

(b) in a sexual context.

Assuming the subject of Bill Henson’s photos were (apparently) under the age of 16 years, the State has to prove that the photos:

• depict the child in a sexual context; and

• in a manner that would, in all the circumstances, cause offence to reasonable persons.

Sexual Context

I have discussed the concept of “sexual context” in an earlier blog.


The second requirement is a little harder to explain.

Firstly, it has to be capable of “causing offence”.

Secondly, it has to be capable of causing offence to “reasonable persons”.

I have divided the terms into these two components, partly to highlight the potential difference between the concept of “offensiveness” and “causing offence to reasonable persons”.

Earlier legislation has used the term “offensive” and there is a history of case law trying to fathom its meaning.

Ultimately, when a court attempts to understand the term “offensive”, it will obviously understand that some people have a lower offence threshhold than others.

It will therefore strive to interpret the term in a way that applies to the majority of people.

You would expect it to emerge with a definition that applies to a median of the population.

On the other hand, the concept of “causing offence to reasonable persons” could constitute a deliberate movement away from the practice of finding a social median.

There doesn’t appear to be any specification of the number or proportion of people who need to be offended.

The important requirement is that they must be reasonable people.

To put it another way, one definition would mean that the material had to be reasonably capable of offending a majority of the population, while the other could mean that it was enough that it offended some people, as long as they were reasonable people.

A court would probably end up interpreting the definition to mean the same as the traditional meaning of offensiveness.

However, the drafting of the section needlessly departs from traditional drafting and case law that would help a court apply the law.

Artistic Purpose Defence

If the material satisfies the above definition of “child pornography”, the section gives the defendant a defence that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine artistic purpose and the defendant’s conduct was reasonable for that purpose.

A defendant would have to prove that:

• they were acting for an artistic purpose;

• their purpose was genuine; and

• their conduct was reasonable for the purpose.

When considered together, these requirments would deny the defence to someone who pretended to be an artist to obtain sexual gratification.

It would also deny the offence to an artist who touched the child in a sexual way while producing the material.

There is no express need to prove relative artistic merit.

Therefore, it seems that mediocre art would be protected, as long as the artist was genuine and his conduct was reasonable.

Section 91G (Children not to be used for pornographic purposes)

I have defined section 91H in terms of protection of the audience.

While a child might be depicted in the material, it is ultimately the effect on the audience that determines whether it is offensive.

In contrast, while section 91H applies to the “production” of child pornography, section 91G focuses on the “use” of the child for pornographic purposes.

In a sense, it is less concerned about the impact of the material or image than the conduct during the photographic session.

It is concerned with the session at which the child was present and what happened during this session.

“Pornographic Purposes”

While section 91H used the term “child pornography”, section 91G uses the terms “pornographic material” and “pornographic purposes” .

The section states that a child is used by a person for “pornographic purposes” if:

• the child is engaged in sexual activity, or

• the child is placed in a sexual context,

for the purposes of the production of “pornographic material” by that person.

Assuming there was no sexual activity, the section requires that the defendant:

• placed the child in a sexual conext;

• for the purposes of the production of pornographic material.

It is not enough that the child be placed in a sexual context, it must be for the purposes of the production of pornographic material.

As a result, the purpose or intention of the defendant is relevant.

Drafting Anomalies

It is at this point that drafting anomalies become apparent.

It’s almost as if the two sections were drafted by two different people.

Normally, if terms were to be used in a number of sections, it would be clear from the drafting that the definitions applied to multiple sections.

However, the term “child pornography” is not used in section 91G and its definition in section 91H is restricted to section 91H.

This might not sound like a big deal. However, one consequence is that there is no express reference to the concept of “offensiveness”.

Does this mean anything?

If sexual context was established, would it matter that it wasn’t “offensive”?

In other words, was it intended that you only had to establish sexual context, not offensiveness?

This is a possible literal interpretation. However, unlike section 91H, section 91G requires the proof of another issue: “pornographic purpose” or “pornographic material”.

“Pornographic material” is not defined in either section.

“Child pornography” is defined in section 91H, but solely for the purposes of section 91H.

It is possible that a court would “import” the definition into section 91G.

If not, it would have to resort to the meaning of the term as defined by common law (i.e., previous case law).

This issue might not be significant in its own right.

However, it impacts on the defence available to artists.

The “artistic purpose” defence is only available to defendants charged under section 91H.

There is no express defence available to artists under section 91G.

This raises the possibility that it was not intended that there be a defence available to artists.

In other words, once “sexual context” and “pornographic purpose” were established, it wouldn’t matter that the defendant was an artist.

The logical response is that the concept of “pornographic purpose” or “pornographic material” comes with a “built in” defence of “artistic purpose”.

You would need to resort to common law to establish this.

Artists would therefore have to argue that there was a defence available at common law that placed them above statutory law.

You can see that this justifies the assertion that artists are seeking to be placed above the Law (at least as far as it has been enacted by parliament).

Alternatively, you would need to argue that all of the concepts in section 91H were imported into section 91G (including the “artistic purpose” defence), notwithstanding that it appears that these concepts appear to have been restricted to section 91H.

At this stage, we haven’t seen the opinion of the Director of Public Prosecutions in which he concluded that a successful prosecution was not possible in the Bill Henson case.

It might shed some light on the above issues.

However, the drafting anomalies mean that, regardless of any lobbying to change the substance of the Law, it is desirable that the anomalies be removed.

Either way, it seems that we have not seen the end of the battle between Morality, Art and the Law.

Guy Rundle on Bill Henson

Guy Rundle’s recent article on the Bill Henson case in the Age has provoked some positive and negative criticism.

Even Andrew Bolt has quoted it positively, which suggests that something strange is afoot!

Left Wing Turncoats

I suspect that Bolt has embraced Rundle, because the Right loves no-one more than an apparent Left-wing turncoat. Not that the reverse isn’t equally appealing to the Left.

Bolt has quoted Rundle precisely because he appears to have broken ranks with the Libertarian Left and sided with the Moralistic Right on the issue of Bill Henson, Art, Pornography and the Law.


This issue reminds me of an earlier generation of American Leftists, some of whom crossed the border and became Neo-Conservatives.

One of them (and I just can’t remember who at the moment) once defined himself as a cultural radical, a social liberal and an economic conservative.

Having ceased to be (or never been) a communist or fellow-traveller, he still wanted to hold onto some sense of “radicalism” in the cultural sphere.

Since then, Neo-Conservatives have turned the word “liberal” into a pejorative.

It’s almost as if there is no middle ground, so that the world is now divided into conservative or radical (and god help you if you’re radical at the moment, even culturally).

There doesn’t seem to be any place anymore for a person who is prepared to question the basis of things that everyone else takes for granted.

Hard Cases Make Bad Law

Every now and then, even within a less radical world, there emerges an issue that forces us to re-think our values and our prejudices.

The Bill Henson case is one of these issues.

In Rundle’s words, it was a car crash waiting to happen.

And it was a car crash, precisely because it brought Art, Morality and the Law into conflict.

In a conflict like this, it’s interesting to see which side we fall on.

Rundle clearly falls on the side of Morality. In doing so, he chooses to take Art down with him.

Rundle’s Historical Perspective

Rundle starts by establishing an historical conflict between:

• philistine police and a smug general public; and

• artists bravely pushing the limits of freedom and critical thought.

He pretends to speak romantically of this era and the manner in which the Ern Malley case symbolised the conflict.

However, then he asserts that:

“60 years on, the country and the culture have changed.

“Globalisation, deregulation and higher education ensured that the problem with explicit material was not how to get it, but how to avoid it.

“As mass culture changed, so did mass values - Australians were at home with explicit treatments of sex, drugs and violence.”

So far so good from an historical point of view.

Elitist Privilege

We have become a more tolerant society and there are some things that we can now tolerate that we didn’t tolerate before.

“Yet,“ he continues, “elite artists continued to tell the Ern Malley story in defence of their projects”.

Suddenly, he implies that, now that the battle has been won, anyone seeking anything more is over-reaching.

And the word “elite” has creapt into the debate.

Cultural conservatives always argued that any attempt by the Art World to exempt itself from the rules of propriety or decency was elitist.

They were trying to be above the Law.

The conservatives lost up to the extent that exemptions for Art exist in the Law today.

However, now we have Rundle and the conservatives on the same team.

Why did this happen?

The Car Crash Metaphor

Rundle constructs his car crash metaphor on the foundation of the following views:

“Henson's photos are not problematic because of what they depict, but because of who is involved in the depicting.

“The issue isn't a free speech one, it revolves around the status of children.

“Henson's defenders know this, and few of them, if any, believe the more libertarian case - that parents should be able to circulate explicit images of their children in any medium they like - so they have to fall back on a series of archaic judgements: Henson is a genius whose motives are pure, and the images circulate only in a gallery and art magazines, the argument goes.”

The first sentence states the nature of the conflict. And it is probably right.

However, the second sentence is the one that betrays his prejudice.

Because the status of children is involved, he asserts, the issue ceases to be a free speech issue.


Suddenly, the conflict ceases, because one value is self-evidently more important than the other.

The High Art Slur

I appreciate that a newspaper article isn’t the best opportunity for Rundle to explain the logic of his argument.

However, I wish that it had been a bit easier to follow.

OK, so Rundle assumes that the defenders of Henson will resort to the defence that Henson is pure and his images will only be displayed in galleries and art magazines.

Rundle reckons that they’re wrong because “the special status accorded gallery artists is simply a hangover of the exhausted high art/mass art distinction”.

At this point in his argumant, Rundle implies that he is vaguely embarrassed about his membership of an apparent elite and wishes to rescind his membership.

Later, he asserts that this elite is attempting to seek an “artistic privilege”.

In doing so, the supposed elite is out of step with mainstream society.

The radical wishes to become a populist.

The Limits of Permissiveness

Rundle is probably right when he asserts:

“People like child protection laws. The existence of a permissive society relies on law limiting the exploitation that it brings.”

This paragraph probably says most about the sophistication of his views.

Starting at the back end, we all object to the exploitation of children.

This is probably an issue on which the Left and the Right can agree (although it would have been nice if it had taken less then a century for the economic exploitation of children to cease).

However, ultimately, what the people like is Laws like the child protection laws.

This is where Rundle is most lacking in his analysis.

You don’t get any sense that Rundle knows what these Laws prohibit or exempt.

In particular, Rundle doesn’t seem to know how these Laws treat or exempt Art as they currently stand on the statute books and bind all of us.

What the Law Actually Says

Bill Henson is subject to New South Wales law.

The NSW Legislature has enacted a Law that it thought was necessary and appropriate to defend the interests of children in the context of pornography.

And it is that Law that we should all be concerned about enforcing.

Firstly, it must be said that the Law was expressly enacted to protect children from being used for pornographic purposes.

This, presumably, is the Law that Rundle thinks people like.

Yet, this Law itself contains an exemption for Art.

Artists Don’t Have to Change the Existing Law

It is not a matter of the artistic elite seeking an exemption from the Law or some unique “artistic privilege” that does not already exist.

The artistic elite (and any artist for that matter, no matter how high or low their brow) is entitled to the exemption contained in the Law that has been enacted, provided that they can satisfy the terms of the exemption.

If Henson is charged, then he is entitled to prove that the exemption applies to him.

He will have to argue, not that the Law doesn’t apply to him, but that the legal exemption contained within the Law does.

To constitute “child pornography”, Henson’s photgraphs would have to depict a person under (or apparently) under the age of 16 years in a sexual context in a manner that would in all the circumstances cause offence to reasonable persons.

If this basic offence was proven, then Henson would be entitled to rely on a statutory defence that he was acting for a genuine artistic purpose and his conduct was reasonable for that purpose.

In deciding to prosecute, the Director of Public Prosecutions has to decide whether he can successfully prove the charge and deny the defence.

Today’s decision shows that he thinks he can’t.

The Law has worked to achieve the goals set for it by the NSW Parliament when the Law was enacted.

If anybody doesn’t like it, they can lobby to change the Law, and no doubt they will.

Hopefully, we won’t see picketing and harassment of people who are working within their legal rights.

As for Rundle, I hope he enjoys his new bedfellows!

Friday, May 30, 2008

Bill Henson: Sexuality as Subject Matter

There is nothing more likely to get the media over-excited than a conflict between (in capital letters) the Law, Morality and Art.

The case of Bill Henson is just the latest example.

Who is Bill Henson and What Did He Do?

Bill Henson is one of Australia’s best known photographers.

For many years (in addition to other subject matter), he has photographed adolescent children in various degrees of nudity or explicitness.

His artistic motive seems to be to portray the experience of moving from childhood to adulthood.

All of the images that I have seen use darkness and shadow to suggest uncertainty, doubt, lack of confidence and a sense of being in transition between two worlds.

I don’t think there is any serious question whether Bill Henson is a competent or talented photographer.

The media and legal debate concerns his subject matter and his motivation.

The media case against Bill Henson and his photographs is that the photographs:

• Are nude and/or sexually explicit photographs of children;

• Are indecent and offensive;

• Place children in a “sexual context”; and

• Sexualise children.

The allegation is that he is a pornographer, whether or not he considers himself (or the art world considers him to be) a serious artist.

This raises a number of questions:

• Can Art still constitute pornography?
• Is an artist allowed to do what a pornographer may not do (because somehow it is Art)?

The Law

I start from a very simple premise as far as the Law is concerned.

The Law is different from Morality.

The Law is not necessarily and automatically and inevitably a tool for enforcing Morality.


Morality is a social issue, not a legal issue.

It can be enforced by social pressures within the social group that recognises the binding nature of the moral prescription.

Morality is therefore its own enforcement mechanism.


Art has no personal or social or moral or legal obligation to conform to Morality.

The Moral Basis of the Law

Morality can, however, be subsumed or embodied within a Law that Art must comply with.

Most Laws have some kind of moral basis.

However, to become a Law, a moral prescription has to be enacted by an appropriate legislative vehicle (such as the Parliament of a state or country) or a judicial institution (such as a court or a tribunal).

Legal Process

We assume that legislative and judicial institutions will act soberly and seriously in deciding what Laws deserve to be made and therefore what activities deserve to be prohibited or regulated.

Governments are also subject to the risk that unpopular Laws might lead to electoral defeat.

However, ultimately, when a Law has been enacted, the defendant is entitled to insist that the State prove its case beyond reasonable doubt.

If a court finds some imperfection in a Law that enables a defendant to be acquitted on a technicality, then the legislature is able to “fix” its own Law.

The State therefore has the ability to make appropriate Laws and improve them over time, subject only to meeting the procedural requirements of a valid Law.

The Doctrine of “Laissez-faire”

The starting point of all Law should be the doctrine of “laissez-faire”.

All activity (whether artistic or creative or personal or social or economic) is entitled to be free of legal sanction or interference, unless it has been prohibited or regulated by a valid Law.

Thus, a person (or the activity of a person) is entitled to be free, unless it is proven in a court that the person or activity has breached the Law.

That which is not prohibited is automatically permitted.

The doctrine of “laissez-faire” is used to justify minimal interference in economic activity or free enterprise.

However, there is no reason why “laissez-faire” should be restricted to economic libertarianism and not applied equally to social and artistic libertarianism.

Why should economic activity be unregulated, but social and artistic activity be regulated?

Why is it that the greatest advocates of “free enterprise” complain loudest about “political correctness” in the context of social and artistic issues?

What is the difference between an advocate of “political correctness” and an advocate of censorship designed to protect society or children?

Steve Biddulph

In an article in the Age on 28 May, Steve Biddulph writes:

“Art is part of society, and however it serves to provoke, it has to do so within moral limits. Were an artist to launch an installation, and shoot those art patrons in the head who first walked in the door, he would still be a murderer.”

This comment confuses Morality and the Law.

Firstly, it asserts that Art must comply with Morality.

There is no such moral obligation. Any perceived obligation would have to derive from the voluntary acceptance of the obligation by the Artist and other members of the society or group.

Secondly, the comment assumes that the proposed obligation is a legal obligation, not a purely moral obligation.

As argued above, there is no legal obligation, until the obligation has been recognised by the Law through the act of a legal or judicial institution.

My argument is that Art is not subject to any obligation or prohibition or regulation, unless it is legally sanctioned.

This argument doesn’t seek any special status for Art. It applies equally to any personal, social or economic act.


The area of pornography and censorship is one area where the State has considered it appropriate to elevate moral prescriptions into legal obligations.

The rationale has been an interesting and changing one.

Originally, the argument was that sexually explicit material would “deprave and corrupt” society.

This would undermine the social cohesion of the society and make it vulnerable to attack from outside.

Thus, the State considered it necessary and appropriate to legislate in order to protect itself.

In more modern times, the damage to society became less credible as a scientific justification.

More recent legislation used the language of indecency and offence.

The concept of indecency sought to protect social norms of propriety.

Similarly, the concept of offensiveness sought to protect people from being involuntarily subjected to material that might offend their sensibilities.

Obviously, it was implicit in these concepts that what might be improper or offensive from one person’s point of view might be proper (or not improper) or inoffensive from another person’s point of view.

As social norms became more permissive, it became harder to prove that material was indecent or offensive.

It was also implicit within these concepts that people could voluntarily submit to explicit material in a way that waived any right to complain.

This type of regulation paved the way for explicit material to be made available, provided there was an appropriate warning or rating or limited time for viewing (e.g., late night television).

This implicitly allowed adults to view the material, but usually not children.

This differentiated between audiences on the basis of age and perceived vulnerability.

It is also the justification for more recent legislation aimed squarely at prohibiting child pornography.

Child Pornography Legislation

This legislation creates the offence of causing or procuring a child under the age of 14 years to be used for “pornographic purposes” (i.e., which is established by proving that the child has engaged in “sexual activity” or been “placed in a sexual context”).

The second requirement is the reason it has been asserted in the media that the Bill Henson photos have placed the models “in a sexual context”.

“Sexual Context”

Obviously, this legal requirement makes it necessary to determine what “placing” somebody in a “sexual context” means.

This is likely to create significant legal and semantic problems.

Normally, you would assume that context was a social creation, where the artist and the viewer are both responsible for creating the context.

In other words, a viewer with a different life experience could identify a different or more extensive context than might have been intended by the creator of the work.

However, if the crime is the “placement” of the child “into” the “context”, then it would not be legitimate to hold the defendant responsible for a context created or inferred by someone else after the physical act of placement.

In other words, the defendant could not place something “in” a sexual context, if the sexual context did not exist at the time or if it was subsequently created.

No doubt the Law will apply an “objective” test to this requirement.

Presumably, it will assume that the context consists of what a “reasonable person” would have perceived the context to be. (This will be a definitional and practical problem in its own right.)

This is important, because the context that the artist creates might mean different things to different people.

Nudity as “Sexual Context”

In the Bill Henson case, this issue is important, because the “sexual context” has been inferred primarily from the nudity of the model.

At this level, the age of the model is irrelevant.

To prove its case, the State would have to prove that “nudity” equates to “sexual”. Objectively.

This presumably means that nudity must necessarily be seen only as a precursor (or accompaniment) to “sexual activity”.

Presumably, it is not legitimate to think of it as a precursor to having a shower or a swim or a sleep, or changing clothes or seeking medical advice.

To confine the meaning of nudity in this manner is either a failure of the imagination or the product of a perverse or single-minded imagination.

Interestingly, one of the meanings of the word “perverse” is to misconstrue something.

Ironically, there is a sense in which the equation of nudity and sexuality is a misconstruction of nudity.

Context Created by the Viewer

To reflexively insist on giving nudity a sexual context is an act of the viewer, not necessarily an act of the artist.

To this extent, the context has been created by the viewer, not the artist.

If the sexual context wasn’t there when the artist took the photo, it is a context that the artist could not have placed the child “into”.

The Sexuality of Children

Another question is whether the concept of “sexual context” is intended to prohibit any discussion or portrait of the sexuality of children as a subject matter (as opposed to a source of prurient interest or titillation for the viewer).

If this were the case, it would be impossible to discuss the sexuality of children from an academic or medical point of view.

It must be legally permissible to discuss sexuality in the sense of the difference between genders or the nature and development of sexual characteristics or behaviour.

If not, the media reporting of the Bill Henson case would itself place children in a sexual context.

It is arguable that the media has contributed more to creating a sexual context and breaching the privacy of the model (see below) than the original photographs.

Parental Consent

Normally, children are not able to consent to an act, if they are under the age of majority or consent.

Normally, the consent of a parent is required in these circumstances.

However, where the act is a criminal offence, neither the child nor a parent is able to consent to the act.

Breach of Right to Privacy

The Bill Henson case has seen the introduction of a new issue: the child’s right to privacy.

This argument seems to suggest that, even if the photograph is not pornographic, it breaches the child’s right of privacy.

In the case of an adult, the right of privacy can be waived.

However, it is argued that this right cannot be waived by a child (or a parent on behalf of the child).

The concern is that at some time in the future the child might realise that what they had consented to was embarrassing and wish to change their mind.

Therefore, the consent of a child or a parent should not be adequate to permit a non-pornographic photo.

However, while a parent cannot consent to a criminal act, they can consent to a non-criminal act on behalf of a child.

It doesn’t matter if the child or parent subsequently changes their mind.

The Sexualisation of Children

The Bill Henson case comes in the middle of an unresolved debate about the “sexualisation of children”.

The concern is that adolescent children are being introduced (or forced to conform) to adult concepts of sexuality prematurely and that they are having their childhood stolen from them.

Phillip Adams has described this practice in the media as “corporate paedophilia”.

However, ultimately, this is a powerful, but misleading, metaphor.

It confuses two different practices (each of which needs to be questioned independently):

• The practice of encouraging children to look or behave like adults sexually before maturity; and

• The practice of regarding and treating children as sexual objects.

The first practice is an advertising practice that is designed to create an appetite for “adult” consumer products in children.

The target of this practice is children.

However, the immediate result is the sale of consumer products to children, not the physical abuse of the children.

The second practice is a predatory sexual practice in which adults prey on children.

Children are both the targets and the victims of this practice.

The Bill Henson Case

Some of Bill Henson’s photographs portray children in various states of nudity.

The photographs seem to be about the journey from childhood to adulthood or the journey from innocence to experience and sexuality.

The question is whether this is enough to constitute a “sexual context”.

There are four responses:

• Nudity is not in itself sufficient to prove a “sexual context”;

• “Sexual context” relates to “sexual activity” rather than sexuality in the sense of the difference between genders or the nature and development of sexual characteristics or behaviour;

• It is possible to discuss or illustrate sexual or physically explicit subject matter without creating a “sexual context” in the pornographic sense;

• The legislation contains a defence that the defendant was acting for a genuine artistic purpose and the defendant's conduct was reasonable for that purpose. The State would have to prove that Henson’s conduct was not genuine or reasonable.

Saturday, April 26, 2008

“The Evangelist” – Robert Forster

“The Evangelist” contains ample evidence that Robert Forster can escape the mythology of the Go-Betweens and one day make the best music of his life.

Obviously, the album still has one foot in the Go-Betweens camp.

Three songs feature lyrical and musical contributions by Grant McLennan, and the last version of the band supplies bassist Adele Pickvance and drummer Glenn Thompson.

On the other hand, the Go-Betweens as an active band had to die the day Grant died, and “The Evangelist” is the first recorded acknowledgement of this fact.

Recent interviews with Robert have suggested that Grant has been spiritually present in the recording of the album and will watch over the band as they play live.

However, just as the album acknowledges Grant, it points a way forward for Robert.

On this album, we witness Robert coping with loss, cementing foundations, building new bridges and exploring what lies beyond.

“If It Rains”

On the first track, Robert expresses his acceptance of the present, while at the same time speculating about what the future offers.

He sounds like a farmer living on the edge of the desert, dealing with the reality of the drought and speaking of rain as if there is a strong possibility it might never come.

He has hardened himself, so that if the rain never comes, he will be strong enough to deal with it.

Of course, if it does rain, you sense that the landscape will blossom.

Musically, the song is built on simple melodies that combine and aspire until they could fill a cathedral in which people worship our ability to survive and thrive and create.

It’s a nice touch that in the last 30 seconds we hear a storm approaching.

“Demon Days”

This is the first of the songs co-written with Grant.

It’s impossible to work out how much was written by Grant and how much was added by Robert.

In the end, it doesn’t matter.

It is melancholy, but only because it places itself in the very moment of realisation that “something’s not right, something’s gone wrong”.

Fate has taken us from the perception of daylight to the darkness of night.

The dreams of youth have gone up in smoke and we don’t yet know why.

If Grant wrote the whole of the lyrics, you’ll be heartbroken just speculating about the events that could have caused him to write it.

If Robert captured the essence of the song’s potential, then it expresses everybody’s frustration that there was no second chance to get it right. No opportunity to wake again the next morning and start again.


To the extent that “Demon Days” expresses the negativity of the situation, “Pandanus” asserts a more positive view.

At the same time, when day turns into night, Robert finds himself among the pandanus palms at some beach, I can only imagine it was Noosa.

Only now, the going down of the sun has “taken your troubles somewhere, somewhere”.

Both songs bear witness to mysteries we can’t comprehend. Something’s not right now, but later our troubles have gone “somewhere”.

“Pandanus” has a fantastic chugging beat as well as chiming melodies that are bound to make it a live favourite.

If there was any justice in this world, it could be a hit single.

“Did She Overtake You”

This is a deceptively simple song about sexual politics that playfully asks who outsmarted who and who got outsmarted.

Either way, she’s happily making it without you, and therein probably lies the answer.

“The Evangelist”

If “Overtake You” marks a change of theme, it continues on the title song.

Yet again, there are beautiful melodies (supplemented by piano, cello and violin) in the employ of a song about faith and trust in a relationship.

It’s obviously about his German wife Claudia and their move to Australia.

I always respected Robert’s decision to live in Germany for the sake of their relationship, but it must have taken equal courage to ask her to bring their family here.

Robert expresses it in a typically simple progression: “please try and follow me, I thought it was better for us, there was gold in that dust, let’s sail into this life, I thought it was better for us, I believe in us”.

I might be wrong, but in this progression is a movement from selfishness to selflessness, a movement from me to us.

Robert might have lost a relationship of over 30 years, but he is fortunate to have another one (or more) that forms the basis of his future.

Whatever “The Evangelist” might be about, one of its concerns is the importance of friendship and family.

“Let Your Light In, Babe”

This is another collaboration, although this time it’s a flirtatious, mandolin-driven tale of sexual attraction with a bit of the feel of R.E.M.’s “Shiny, Happy People”.

Thanks to Adele for the mandolin.

“A Place to Hide Away”

This initially comes across as a minor throwaway, but looks can be deceptive.

I suspect Robert received many offers of assistance to help him deal with the loss of Grant.

The song finds him contemplating hiding away in a walled city in Greece. Then again, in the same breath (Leonard Cohen-like), he imagines taking someone else there to hide away with.

“Don’t Touch Anything”

This is probably the most overtly Dylanesque song on the album.

It has all of the swirling intensity of “Idiot Wind” off “Blood on the Tracks”.

And like that album, even though he is now married and presumably untouchable, there is a sense of the loss of a past, perhaps youthful relationship, one in which he never had any doubts.

It’s probably a song where to quest for any greater personal meaning would be to ignore the significance of the title.

“It Ain’t Easy”

This seems to be a combination of Grant’s effusive music and Robert’s grateful, but mournful lyrics.

It’s Robert’s thank-you for Grant’s sly grin, will to win and a “dream that ran through everything”.

“From Ghost Town”

On the closing track, perhaps the streets of our town now belong to a Ghost Town, in which David wrote in a goodbye note, “It’s all different now”.

It’s widely suspected that this is about Grant’s death.

At this stage, I’d prefer to think it’s not, I’d prefer to believe that its beauty is an act of the imagination, a profound way to close an album, not a life.

I look forward to the next epistle from this “Evangelist”.

Sunday, February 24, 2008

Ole Tarantula - Robyn Hitchcock and the Venus 3

When I first listened to Ole Tarantula, I was in a hurry to see the band that night and I didn't play it very loud.

That was my first mistake!

My second was to conclude that it was one of Robyn's lesser albums.

I heard a number of the songs live before I had another chance to come back to the album.

This was when I first started to realise just how strong it is.
Robyn's advice is to listen to it for pleasure first and only then to think about the words and their meaning.

Having now done both numerous times, I recognise what I missed at first: the album is an unadulterated pleasure.

Sorry I'm a bit slow on the uptake!

Adventure Rocket Ship

The first song is an upbeat, fun song that purports to be nothing more.

It gallops along at a rate of knots that, at first, annoyed me for some reason, but it gradually won me over with its good-natured insistence.

Now I can't get it out of my head.

I thought it was a throwaway kind of song. But it's better than that.

In a way, it's a bookend that announces that this rocket ship of an album is packed full of messages for the aliens in our universe and maybe just a few for us on earth as well.

Underground Sun

This song continues the upbeat start. It has some of the feel of REM's Shiny Happy People, even though it concerns the death of a friend.

She is underground, but she hasn't really "gone" while there are people who remember her.

Their memories keep the flame of her life alight. She still shines like the sun: "I know you're there, I can relive you."

It's an affirmation of life despite the inevitability of death and the need to experience the death of others in our own lives.

Museum of Sex

Museum has a funkier sound with hand claps, buoyant bass playing, chunky guitars and some nice R 'n' B horns.

Basically, it's a secular hymn to a great rock 'n' roll riff. "Music is the antidote/to the world of pain and sorrow."

Who knows what the lyrics or the title really mean, but music is the pulse of life and life begins with sex and this riff is now housed forever in a song that might just be a museum of sex!

Belltown Ramble

One day I think we'll see this song as one of Robyn's greatest.

It has a delightful syncopated drum beat accompanied by Scott McCaughey's skittish, simplistic piano.

It's the most nursery rhyme-like of the songs on the album, but it's also the most obvious message from one generation to another, in this case a parent to their daughter.

It's a song of comfort to a young inquiring mind wanting to know their place in the world, most likely intimidated by what life might have in store for them.

The song hints that the most important thing to strive for is an "independent life".

If you do it your way (in Robyn's words, whether you walk a square or an oblong or even just walk straight), even though you might think you've done it wrong, "you did it great".

Within this simple message, Robyn enumerates seven worldly threats to his daughter(?):
1. ignorance;
2. opportunism;
3. greed;
4. fundamental(-ist) faith;
5. haste;
6. waste; and
7. something that I'll paraphrase as insular, self-centred idealism or utopianism that aspires to your own paradise on earth while turning your back on the people in our lives (especially while seated at a computer!).

This is Robyn at his most political, yet the song still comes across as personal rather than polemical.

I love the way he places this message in an identifiable place (Belltown) and coyly plays down its profundity by calling the song a "ramble".

At its heart, it's a warning not to take life or situations or songs or lyrics too seriously.

Ole! Tarantula

This song also disappointed me on first hearing.

However, again, I took it too seriously. It's a playful Basement Tapes-era Dylan pastiche complete with harmonica, saxophone and harmony vocals.

Still, beneath its flippancy, it's a celebration of the wonder of birth and "the shock of human existence" that emerges from the process.

With so much birth and death on this album, it's reassuring that its title derives from a song about birth and rebirth.

(A Man's Gotta Know His Limitations) Briggs

This song started off its life as a lyrical extrapolation on a Clint Eastwood film.

It's musical arrangement has matured with age. Now it's a tour de force of duelling jangle pop guitars, possibly the closest to the Hitchcock and Buck sound of the 2006 tour.

It also seems a bit of a caution that there is more to life than living within the sphere of the imagination. You have to accommodate reality as well. Otherwise you just might explode!

Red Locust Frenzy

This is a more contemplative ballad in the style of solo John Lennon.

Again, both guitars and vocals intertwine gracefully throughout the song.

Lyrically, it contains just a few simple brush-strokes, almost like a haiku, that suggest that you ward off the devil and death for as long as you can, so that you can savour love while you have it.

Ironically, the advice seems to come from the afterlife, even though…"there is no God up here/No captain of your dreams."

'Cause It's Love (Saint Parallelogram)

This is an unpretentious guitar driven song about being in love with the idea of love more than actually loving someone.

Saint Parallelogram moves parallel to life and love without ever truly experiencing it.

The Authority Box

This tale of middle class paranoia and fear of failure is a cross between Dylan at his most accusatory and the Beatles at their most psychedelic.

N.Y. Doll

Slower paced than Briggs, this song about the New York Dolls bass player Arthur Kane is one of Robyn's most beautiful compositions.

It opens with the words "I never finished the book", as if it was starting mid-conversation.

While this line originally made me grin, later you realise that Robyn uses the word "book" as a metaphor for life and mortality:

"But in the library of your memory/ People live in their books/ Till the pages close/ Close on me like they're gonna/ Close on you."

There's something that reminds me of "Tears of a Clown" in the feel of this song.

I recently read a review of the Sydney Basement gig that regretted that the band never really kicked butt.

I can't agree. N.Y. Doll shows that the band (especially Scott McCaughey on bass and Bill Rieflin on drums) can conjure up a sound that kicks like the best of Motown without having to resort to the thrash of a lot of their contemporaries.

So, what to make of the album as a whole?

It's draped in the fabric of nursery rhymes, but like the stories we tell our children, it subtly disguises tales of birth, life and death, imagination and dreams, success and failure.

In the face of mortality, this is Robyn's defiant expression of his joire de vivre.

Ultimately, like the Soft Boys song of the same name, the album is a vessel that conveys "the pulse of my heart".

As long as that pulse survives and beats strong, it will help us battle the "poisons" with which life tempted Arthur Kane.

And when we eventually succumb, then hopefully there will be another generation that has learned from our lessons.

So perhaps Robyn's Adventure Rocket Ship is not just a missive for aliens, it might actually be a Satellite of Love for us earthlings as well!

The Saints - "Call It Mine"

As much as I loved the original Saints (with both Ed Kuepper and Chris Bailey), I have always had a soft spot for the Saints Mark II, a version that Chris Bailey started to much consternation in 1979/1980 (after Ed and everybody else had left).

The consternation revolved around Bailey's entitlement to call his band the Saints, something that will never be resolved.

For fans of both Ed and Chris, it was like being asked to take sides in an ugly divorce. Nobody wins. Sometimes, you're just better off keeping your head down and ignoring the fuss.

I had loved "Prehistoric Sounds" and still regard it as the best Australian album ever.

Ed Kuepper took that sound and explored it in the Laughing Clowns. One day, Ed will be appreciated as rock music's equivalent of Miles Davis, except coming from the other side of the fence.

Chris Bailey headed in the opposite direction.

Despite all of the New Wave experimentation in the wake of punk (Gang of Four, Wire, Magazine), Bailey ventured into some modest studio in south London and came up with an E.P. full of immodest but "mid tempo rockers" called "Paralytic Tonight, Dublin Tomorrow".

This wasn't cool enough for NME or many other Saints fans, but I'm sorry, I was just totally knocked out by it. Three songs in particular - Simple Love, Don't Send Me Roses and Call It Mine.

Simple Love grabbed me by the throat and wouldn't let go.

However, I recently decided that I had to elevate Call It Mine to top billing, when I was making a ringtone for my phone.

The cascading guitars that introduce the song were just what I needed to hear every time someone rang me.

So, how to describe the sound?

It's not a slashing punk buzzsaw kind of sound. It's dirty, it's mid tempo and it's jangly.

Looking for something similar in my collection, I keep returning to the Byrds doing "Mr Tambourine Man", especially live.

So a few years before R.E.M., the Saints were playing with a dirty jangly sound.

The chorus introduces a more chugging sound, some would say more pub rock, but there's also an eastern feel.

It's also multi-tracked, so I love trying to work out the interaction of the guitars, so that one day if I ever get around to learning, maybe I'll be able to mimic the sound.

Over the top of this, imagine Chris Bailey's vocals.

They're monosyllabic, somehow stumbling or jumping or leap-frogging from one syllable to another without tripping or losing momentum.

Somehow it all pieces togther into some deceptively passionate singing. It's almost soul music, it's stripped back, it's personal, it's revealing. And those guitars just keep jangling and chugging and driving it along.

Unfortunately, it's still pretty hard to find any versions of the song.

I had to pay a lot of money to get my favourite version on the 16 track New Rose release of the subsequent album "The Monkey Puzzle".

It's also on the New Rose version of the album "Out in the Jungle" (also released as "Casablanca") in an inferior faster guise.

I live in hope that they'll remaster the whole of "The Monkey Puzzle" and add "Paralytic Tonight, Dublin Tomorrow" one today.

I've never been happy with any of the versions of the album, and they seem to choose versions of some of my favourite songs that aren't the best available.

Unfortunately, it's possible that the E.P. was done so much on the cheap that no amount of remastering will help. However, I still think that they could put together a pretty good CD of this transitional material recorded in 1980 and 1981.

It's timeless, but that doesn't mean it should be lost in time.

Hey, there goes my phone...

The Sleepy Jackson - A Selection of Lyrics For Your Listening Pleasure

If I was a girl I would wear a miniskirt into town * When you think with your mind, you've got a place to go now * I had everything I wanted, but you wanted more, I had everything I needed, but you needed more * Crime comes to them like a worried vein, girls get married like they live in vain * I will start myself a revolution * This will take some time I know, and it's going slow I know * Your lonely town's in fear, your idols are crushed by the wind * I lost my mind, it was blown in the wind and I did all of this for you * Girl, it's a long time without lovin' * Love in two days, it's too much, and I fell right through all of you into nothing * When I wake up in the morning, I see your eyes, your bright eyes * It's hard to have fun like a kid does * Take this bucket of love and add some laughter to it * You're better off on your own, when things get tough, just take a rest * The pretty ones seem to get fucked up all the time * It's hard when you don't know what you've done, and it causes no-one fun * Girl, it's a long time when you're runnin' * Love lasts forever with you * God knows if you're ever going to show, but they all know that it's dark and there's no light * We're too far gone, I feel the lights will not come back on * It's true I never had no fun with you, now there's acid in my heart * I understand what you want, I understand what you need, but I just don't agree * You miss my friends more than you ever miss me.

The Panics - My Best Mistake

What do you get when you cross the sounds of Perth and Manchester? And Liverpool and L.A.?

The Panics.

I can't remember the first time I heard My Best Mistake, but I knew I had discovered my New Favourite Band.

It was just like hearing the Stone Roses for the first time (in fact, the Panics take their sound and give it an Australian accent, sort of like the Strine Roses).

This song captures the sound of summer.

It's the sort of song that defines a period of your life, what you were doing, who you were doing it with, all of your memories and all of the consequences.

Its guitars lift you up and fly you over the clouds. They sear and soar and inspire like George Harrison at his best.

The drums propel you along with a nice touch of American Indian beats. And the vocals confide in you like only your lover could late on the night you first met.

If there's anything that makes me slightly hesitant about the song, its a hint of the band America's Sister Golden Hair in the slide guitar. But hey I guess there's not many distinctive ways you can play slide.

I don't know what it is they drink in Perth, but it inspires some classic pop rock music that builds on the traditions of the Beatles and the countrified sounds of the Byrds, Buffalo Springfield and Crosby Stills Nash and Young.

It's a timeless urban and western sound.

Perhaps, it has something to do with the fact that, like L.A. and Liverpool, they're on the western side of the country and they watch the sun go down into the ocean.

Whatever it is, I hope they keep doing it.

The Jesus and Mary Chain – “Darklands” (The Single)

Every time I read a list of someone's Top 100 Singles, I have to wonder what my number one would be, and every time I choose "Darklands".

The song is the first song on the Jesus and Mary Chain album of the same name that came out in 1987.

Many fans thought their second album had sold out the sound of the feedback-drenched "Psychocandy".

I first heard "Psycocandy" at my friend Steve's. He had just returned from a holiday in London and was desperate to play it for me.

I'm embarrassed to say that I just didn't get it on the first play. It seemed to be no more than feedback and distortion. How wrong was I! Just like Lou Reed and the Velvet Underground, feedback and distortion were just ingredients in a new vision of what music should sound like.

Once you listen through the apparent dissonance, you discover that the Jesus and Mary Chain are creators of pristine pop music at the level of both the Velvet Underground and the Ramones.

There is something both very complex and very simple going on at the same time.

"Darklands" starts with a simple lead guitar intro that is almost immediately shadowed by a drum beat that holds the song together like something Smoky Robinson could have written for Motown.

Each lead works up to considered, understated but somehow still slashing chords.

This conversation of alternating guitar styles winds its way through the song, and ultimately represents William's options, heaven and hell.

The most obvious of meanings of the song is that the Darklands are the world you enter when you're in a heroin-induced high.

William goes there to escape the real world. He wants to "talk in rhyme with my chaotic soul".

His motive is simple. Life means nothing, all things end in nothing, real life is chaos, but at least in the Darklands he gets to talk in rhyme with himself, as if he finds some beauty there.

Yet now he is held back from his quest. Perhaps he has O.D.'ed, perhaps he is doing cold turkey, perhaps he just can't afford his next hit.

Whatever the cause, he feels like he is dying, maybe dying to go to the Darklands.

The heaven he experiences in the Darklands is too close to hell. He feels like he could die, then he feels that he is dying, and finally he recognises that he is dying.

He is brought to his knees, pleading to go, but in his time of dying, as he confronts his own death, he recognises that he wants to stay more than he wants to go.

Ultimately, however, his survival instinct wakes him from his dreams and persuades him to stay.

It's not easy though. At the same time as he concludes he wants to stay, he starts off the final chorus by declaring he wants to go.

Another possible meaning is that William actually contemplates suicide in the song, but retreats from the precipice.

Either way, he has stared death in the face and lived to tell the tale.

Out of this drama, the Jesus and Mary Chain create an epic of subtle, but Phil Spector-like proportions.

Many of the things that appealed to me about the sound of the song are founded in the 60's: the drum beats, the instrumental call and response, the guitar crescendos, the doo doo doo's.

Unlike "Psychocandy", I had no doubt that I was witnessing pop music at its greatest, so much so that I can still listen to this song dozens of times in a row.

It took just one song on their second album to realise that this band could be king of all it surveyed. And I was happy while it reigned. Even now, I can close my eyes and pretend that the JAMC still do.

P.S. I still can't work out why "Just Like Honey" didn't have the same impact on me on first listen. It has many of the same 60's ingredients.

Ed Kuepper - “Everything I’ve Got Belongs to You”

I love Ed Kuepper's music. It's got me hooked.

No matter what tempo, he is a master of subtle propulsion and sublime grooves.

When he multi-tracks his guitars and adds piano and organ melodies, he can create a cocoon of sound that you just don't want to escape.

It's even more enticing when his lyrics hook you and refuse to let you off the hook.

Maybe that's a bad metaphor. It must sound violent, which is not what I wanted to convey.

The "hook" that I mean is the lure of sophistication, of a thought or emotion perfectly captured and then projected out to his audience.

Ed Kuepper has a rare ability to focus a magnifying glass on the machinations of heart and soul, body and mind, and then report his findings to us in such simple unpretentious words that you could almost overlook how precious they are. His songs aren't wordy or pretentious, but when repeated until they become familiar, they are loaded and hypnotic. His cocoon is both musical and verbal.

"Everything I've Got Belongs to You" is one song that blends music and words perfectly. It deserves to be on lists of the Top 100 best songs ever. Well, it's close to the top of mine!

It's a love song, at least I think it is.

It's not about saccharine romance or puppy love. It's about real, grown-up love where two people grow in and out of love. They argue and lose each other, then make up and find each other again, in the process maybe learning a little or a lot about themselves and one another.

You have to look as far as Lou Reed and "Ecstasy" and songs like "Tatters" to find someone who can document the dynamics of a relationship this subtly in music. ("Some couples live in harmony, some do not. Some couples yell and scream, some do not.")

"Everything" starts with one of the most amazing first lines in rock music: "I have designs on you that come from dirty books ".

I grin every time I hear it, then I wonder what it really means.

Is the object of Ed's affection an existing lover or a photo in a magazine? Has some fashion model taken over his life? I don't think so. I think a real relationship has begun and ended and begun again. Good on him for still having designs on her! She must be "worth it".

OK he might be churlish, he might be rude. I'm sure she has her faults as well, although he doesn't list them like he does his own. ("You might boohoo" doesn't seem to be that much of a fault.)

There's no point even trying to revisit the issue that once divided them, it will only lead to another fight. Besides "she" seems to be able to win these battles anyway, she always gets her "comeuppance" (I wonder if anyone else has used this word in a song, maybe Cole Porter or Elvis Costello?)

Ultimately, the relationship matters more than who is wrong or right. The relationship is truth, it's no fiction or fantasy.

It drives him to revive it when it falls over. He has to "take" her by the hand and get her back, despite his own faults and perhaps despite any that she might have.

So the title itself…it sounds so romantic. It is romantic. But there's this underlying sense of ownership and possession. Or is there? Does "she" now own everything he used to own? Has she deprived him of it?

I don't think so. It's interesting that Ed doesn't even use the word "own".

The things he's talking about are things that he's "got". She doesn't own them now, they "belong" to her. They mightn't even be material possessions; they might be his qualities, good or bad.

Either way, she deserves them, he's offering them to her or to them. Again, she's worth it.

The relationship is not two people, but one thing. And every time they do something that temporarily splits it, "it" gets itself back together again.

OK he doesn't want to let her "off the hook", but it sounds like he's on the hook as well.

Maybe it's not such a bad hook to be caught on. Real love can keep us on tenterhooks, but they can be such tender hooks!

I hope Ed doesn't mind me printing the lyrics to this greatest of real love songs, so you can enjoy it and make up your own mind.

Everything I've Got Belongs To You
Ed Kuepper

I have designs on you that come from dirty books
And I'd lie to you if that was what it took
Well I'd act out of spite and those times ain't few
Cause everything I've got belongs to you
Yeah everything I've got belongs to you
I'd come by for you and take you by the wrist
You might well boohoo, yes there could be that risk
To let you off of the hook, that just wouldn't do
Cause everything I've got belongs to you
Yeah everything I've got belongs to you
I don't care who's wrong or right
I'd just start another fight
And you'd get yours, can't you see
You always get your comeuppance with me
Now, time has proved I'm churlish and I'm rude
And I find a real contentment in bad moods
And because it's all true, there's nothing to do
Cause everything I've got belongs to you
Yeah everything I've got belongs to you

“After Dark” by Haruki Murakami

"After Dark" is probably the easiest Murakami novel to read.

At 201 pages, it's not difficult to finish in one session.

It's also close to what you would call "high concept" in the film industry.

Its execution is not much more than its conception.

All of the action takes place from 11:56pm to 6:52am on a midwinter night, more or less "after dark" when the days are shortest and the nights are longest.

Murakami's writing is stripped back, simple, present tense, in the style of detective fiction, yet there is always a sense of deeper meaning, even if it is or remains hidden.

We see the surface, almost like a camera, but we know there is something behind it, even if he doesn't choose or have to describe it.

"Darkness" is an extended metaphor throughout the entire novel.

At the most superficial level, it describes the night.

However, it also represents the darkness of the human soul.

This level of meaning is most likely to resonate with its likely audience – youth in their teens or early twenties who are still trying to piece together some sense of the meaning of life and how they fit into it.

Before people developed the technology to build houses, they huddled together in caves at night, primarily to escape their predators, but also to share their collective warmth.

Darkness then created a sense of family, if not society as well.

Language as a form of communication probably developed during these hours of darkness, when there was little else to do.

Now that we can build accommodation, we create smaller scale, more individualised caves where we can live alone and lonely.

What was once a source of comfort has become a source of alienation.

This spiritual or anti-spiritual life of buildings in Murakami's fiction has been coming for some time.

The homes, office blocks, cafes, bars and hotels in his novels take on a life of their own. They are characters with their own mysteries that embrace and surround the human characters. They're almost microcosms with their own cosmic significance.
Inside these buildings, we can be easily lured away from interaction with other humans, even the members of our own family.

Mari and her beautiful sister, Eri, are two sides of the one coin (their names are only one syllable apart) that have lost touch with each other.

Eri is at home sleeping a deep sleep that is "too perfect, too pure" and has lasted for two months.

Late in the book, we learn that they once embraced each other for protection in a lift while it remained trapped in darkness in a blackout. Spiritually, it was the closest they ever came to each other, a return to the comfort of the cave.

Since then, they have drifted apart for no discernible reason.

Metaphorically, they have lost touch, but it's almost as if it is important that they have literally lost touch as well.

Although Eri never fully regains consciousness during the span of the novel, their reconciliation and sense of wholeness begin when Mari learns to open up personally over the course of meetings with strangers during the night and decides to sleep in Eri's bed, holding her close under the sheets, just as the sun starts to rise and the darkness starts to dissipate.

In Murakami's concluding words, "this hint of things to come takes time to expand in the new morning light, and we attempt to watch it unobtrusively, with deep concentration. The night has begun to open up at last."

Throughout the night, we have watched two flowers start to blossom…or, more likely, two shrubs about to re-blossom.

In a sense, they have emerged from the dark and into the light. They are literally "after dark" or post-darkness.

There is a suggestion of a recurring cycle at work here too. Just as day follows night, night follows day.

Murakami's very last words are that the hint of things to come will continue to expand in the light, at least "until the next darkness arrives".

This might just mean that we will retreat to our caves at night, pending a new sunrise.

But it could also mean that, all through our lives, we have to deal with darkness and depression, but we have to remember that there will be a new sunrise, especially if we make it happen ourselves.

Someone has suggested that this novel could be the first in a trilogy based around these characters.

There are a myriad of questions that the detective in the reader wants to find answers for.

On the other hand, the metaphorical significance of the novel and its title is complete in one volume.

Bettie Serveert - I’ll Keep It With Mine

This is one of my favourite songs of the B-sides and rarities genre.

It's a song by Bob Dylan about a female member of the Velvet Underground sung by a female member of a Dutch band who grew up in Canada that you can only get on the soundtrack of a film about Andy Warhol made by a woman who has made some other pretty interesting films.

One of the things I love about it is the way Bettie Serveert have injected into it a Velvet Underground feel (is it the rhythm?) that makes you wonder what it would have been like to see Lou Reed and Bob Dylan in the same band, perhaps during the Rolling Thunder Revue, perhaps produced by the platinum-haired Spider, Mick Ronson.

Even though it's steeped in all these images of New York circa '65, it's still a song that is rewarding for fans of Bettie Serveert.

I love this band, I love Carol Van Dijk and Peter Visser. They are so much more than their first album Palomine, as great as it was and is.

They are so much more than their influences, even if they do wear them on their velvet sleeves, their ermine furs and their shiny shiny, shiny boots of leather.

Bettie Serveert make music that can cure your heart or break your heart in two, it's true!

I hope you like it if you haven't heard it before.

Here's another song that reflects the Velvets influence:

Luna and Dean Wareham – "So why aren't you guys more famous?"

I experienced a little sense of excitement yesterday when I learned that Dean Wareham had written a book about his life before, in and since one of my favourite indie bands, Luna (due out March 13, 2008).

The promo says that "Black Postcards" is also about what it's like to have to pretend to be civil as you answer the same helpful question over and over again, "Why aren't you guys more famous?"

I can't wait to see what Dean has to say.

I don't know the answer to the question, but I'll have a go.

Luna was a cult indie band that played from 1991 to 2005.

Like another of my favourites, Bettie Serveert, and perhaps the Go-Betweens, they seemed to have everything needed to generate popular and commercial success.

They flirted with major record companies (Elektra and Beggars Banquet), but ultimately they got jilted.

So ultimately they remain(ed) a cult band whose obsessive fans (e.g., me) wonder why more music lovers don't join them in their (my) obsession.

So What is a Cult Band Anyway?

I know this will sound like heresy, but I think there is a sense of both success and failure implicit in the term "cult band".


A cult band usually creates a sound that is different, unique, distinctive, quality, a worthy addition to what Julie Burchill used to sarcastically call "rock's rich tapestry".

This is the first and foremost duty of the band to itself and to its audience.

Everything else is secondary.

If the sound of the band is special to the band, then how many people "get" the sound is secondary from the musical point of view.

A cult band will usually have the right pedigree. In the early days, they will play the right covers, they'll name the right influences, they'll get name-checked by the right people. If they're lucky, some of the right people might even guest on their albums or invite them to play on their tours.

As a result, they will develop a dedicated following of early adopters.

A successful act of creativity communicates in some way (whether deep or superficial) with its audience.

We fans will want to buy everything, watch everything, read everything, see them every show and bore our friends senseless with our enthusiasm.

We will also look at our friends a little askew if they don't immediately share our passion.

The duty of the fan is to give the work an audience and space to breathe and grow.

This includes publicising or promoting the work if you're so inclined.

It means playing the CD to friends. It means buying new copies if it's within your budget (artists don't receive any royalties from second-hand sales).

It also means knowing when to stop obsessing and let your friends make their own decisions about what they like and what they want to buy.


I'm talking solely about commercial success now.

I don't know at what point of sales a four member band can live comfortably on their royalties.
Obviously, it depends on your costs, whether collective or personal.

Unfortunately, if you're signed to a major label, it's not 50,000 copies.

Most groups never get a shot at the big time. They never get signed by a major label. Equally, they never get dropped by a major label.

If they're not too obsessive about commercial success or fame, they make do with where they have got. They play music for their audience of loyal fans, they tour relentlessly, they work their butts off and maybe they make enough to survive without a day job.

It can be done nowadays, although there weren't the same income opportunities in the 80's and 90's.

This type of band can't really be said to have failed: if they are satisfied with what they have achieved, they have succeeded in their own vision.

If they are more commercially ambitious or set on financial success or they woo fame too slavishly, then they impose different expectations on themselves.

By failing to achieve these expectations, their only failure is that they have failed to achieve commercial success. So what?

It doesn't mean that they have failed musically, at least from a fan's point of view.

We fans have to make do with what the band was able to generate before the financial pressures terminated their career.

So ultimately the test of every band is: what were they able to achieve with the time and money available?

The Cult of Luna Takes Shape

I think my Luna CD's were among the first CD's I ever bought.

I had assembled quite a large vinyl collection when CD's were introduced and was a slow adopter of the new (replacement?) technology.

What attracted me to Luna was the sticker proclaiming "featuring members of Galaxie 500, the Chills and the Feelies".

Because both Lunapark and the Slide EP had been released in Australia by the time I found them, the deal was sealed when I noticed a Dream Syndicate cover on the EP (not to mention the Velvet's "Ride Into the Sun").

Quite early in their career, they supported the Velvets on their reunion tour of Europe in 1993.
Sterling Morrison played on a couple of tracks on "Bewitched" and Tom Verlaine played on "Penthouse".

It was clear that Luna was building on the foundations of the Velvet Underground sound and that they were firmly planted in the traditions of New York rock.

So I was hooked.

Defining the Luna Sound

The essence of the Luna sound is the standard rock combo: two guitars, bass and drums.

If pressed, I would say that the music is more important than the lyrics. However, I might be wrong.

What I mean by this is that Luna are first and foremost skilled musicians.

Unlike, say, the Go-Betweens, they are not essentially writers who happen to be in a band.

Music is primary, and the lyrics, while enjoyable, are songs, not paragraphs from novels (although I for one would like to read that novel).

Right from the beginning, their music strode the loud/soft divide like the Velvet Underground.

The louder stuff was driven by propulsive guitars and an always subtle rhythm section.

The guitars could be both rude or polite. But while they were often neat, they were never messy.

Some people call them simplistic. As a non-playing fan, I just marvelled at the melodies, even if they were simple or common or traditional or even classical.

By the time they released "Romantica" and "Rendezvous", I think they had taken their compositions to the level of an orchestra for guitars where they used layers of sound to develop a more complex textured sound.

As one critic has said, it was perfect music for headphones.

So to the lyrics…

Romantic, flirtatious, decadent, hedonistic, witty, sarcastic, mischievous, nonchalant, sincere, ironic, nostalgic, innocent, guilty, warm, cool, wistful, affable, arch, self-deprecating, funny, punny, comfortable, relaxed, moody, languid, intimate, post-coital, pre-coital…

Lou Reed might have captured the life and language of Andy Warhol's Factory set in the 60's, but Dean Wareham did the same for a generation in the 90's and noughties that were just getting on with business and life and love and more recently children.

Joe Levy has copped a bit of stick for his effusive liner notes for the Live album, but he does capture how a lot of non-critical fans relate to Luna music.

He also draws a picture of Dean Wareham that betrays a few Warholian brushstrokes:

"I often think of Warhol when I go to see Luna play. Not just because Dean Wareham stands still and shy onstage with a slight smile while his songs act out every manner of misbehaviour he can think of or orchestrate, but also because Warhol is the ground zero for the New York rock & roll that Luna have taken up.

"Without his outsider's desire, his fakery, his honest delight in invention, his thirst for gossip, his cruelty and kindness, his parties, where would we be?"

One of the things that I respect about Dean Wareham is that he came to the flame of New York from New Zealand (via Sydney), yet he appears to have fit in like a hand in glove, perhaps because he insinuated his hand into a velvet glove.

However, sometimes you need an outsider from Pittsburgh or Hibbing or Wellington to see things as they really are.

"So Why Aren't You Guys More Famous?"

Like any fan, I can only enthuse or list the reasons I'm a fan.

Yet my reasons can't be enough. I know I have friends who have no Luna in their collections, who have never heard of them or hate them as purveyors of wimpy dream pop rock.

It's not that they don't get it, some of them get it and just don't like it.

Perhaps, despite the Velvet feel, the music is just a bit too crafted for some? Perhaps, it needs to be a bit more torn and frayed? Perhaps, they haven't transcended their influences enough?

I guess I'll have to wait until March to see if Dean Wareham can shed any light on the question!