Law, Arts, culture & society | Australia

19 September 2017

From the violent protests in Charlottesville to graffiti sprayed on a Captain Cook statue in Sydney, how are we to navigate the politics of public places? Mark Williams writes that decisions over public works of art require policy-makers to reach consensus with both the present and the past.

We might have seen it coming: “The place to build a statue in a public park,” according to architectural theorist Camillo Sitte, “is where children build their snowmen.” That’s the place, by-passed by the ‘desire-lines’ of citizens on their pathways through public spaces – often shortcuts between two points the designers failed to see – where there might be a chance to dream, to idealise or, indeed, to hide in plain sight. But this is where the public statue, like the accusing figure of the Commendatore in Don Giovanni, might suddenly come to life.

Such has been the cultural moment over the last few weeks after an apparently innocuous decision to remove a statue of Confederate General Robert E Lee led to a march in Charlottesville, Virginia, by young white men with short hair in polo shirts, who were also carrying flaming torches, and ended in the death of someone who disagreed with them.

Within days, the statue of Captain Cook bearing the strapline ‘Discoverer of Australia 1770’ was sprayed with graffiti in Sydney’s Hyde Park and debate flared across the country over images of dead white Englishmen in public places.

The policy matrix around the issue of works of art in public places, particularly sculpture, requires a long view. For a start, the decision to place anything in public open space immediately privileges and, to an extent, privatises it.

The decision to remove a work impacts upon questions of tangible and intangible cultural heritage. Such a decision also may affect private rights, some of which last for a very long time. In between, who takes ownership or custodianship of the work and the surrounding space is not always clear-cut. At its most extreme, human rights of cultural expression, freedom of association and freedom of speech come into the mix – and that mix is quite different in Australia.

More on this: László Ürge, Les Murray, and a history of multiculturalism

Human rights still have an unsettled place in many countries, including Australia. Legislation has found its way onto the statute books in the ACT and Victoria whilst the Commonwealth Human Rights and Equal Opportunity Act has suffered regular criticism from members of the government and the media.

Elsewhere, the European Charter of Human Rights has been called upon more than once when art in public places becomes the focus of protest.

In 2006, for example, the Moldovan Government was criticised by rights groups for trying to suppress demonstrators protesting about empty space. The trigger for the protest was the government’s refusal to install a statute to the poet, Liviu Rebreanu, which had been donated by the Government of Romania (whose influence the Moldovan Government deplored generally). Ultimately the European Court of Human Rights found the Charter’s guarantee of freedom of assembly was infringed when the government tried to ban and lock up the demonstrators.

Motives and the manner of placing memorials in public space vary over time, but memorials to the dead, killed in violent conflict a long way from home, have a particular space in the Australian psyche.

Recently I was standing in the Epigraphic Museum in Athens looking at the 2500-year-old stelae erected and etched deep with the names of the fallen Athenians at Thermopylae. Understanding of Athenian practices regarding their war dead spread after discoveries in the 1880s and the growth of classical education. The decision to memorialise the huge numbers of the dead of Two World Wars in similar ways seems a particularly significant late classical influence.

By contrast, during travels in Hungary in the 1990s, I noticed war memorials were appearing for the first time in a hundred years. Being on the losing side twice and being occupied after 1956, the Hungarians had not been permitted to memorialise their war dead, right or wrong, until the political climate altered.

Back at home, considerations which arise over the removal of statues regularly force one back to looking at the decision to locate a work in the first place – and it is a view that may involve looking a long way back into the telescope.

To complicate things still further, there is always a question of who owns the physical work – aside from the trite law that once something is fixed to the ground, it belongs to the land.

Many public places, such as Melbourne’s Shrine of Remembrance and its surrounds, have the benefit of Acts of Parliament, with the protection of the political process as an ultimate guarantee of integrity. However, memorials which are privately funded or erected by public subscription often require considerable forensic investigation before the thorny question of ownership is settled. There is a small but significant anomaly in the law of trusts, for example, that trusts for the erection and upkeep of memorials may last in perpetuity. Churches and cemeteries also have long-standing practices that are designed to flatten out temporal enthusiasms of religious or ideological fashion.

If perpetuity is too long, the moral rights of the artist – first conferred in Australian law in 2000 – last a lifetime plus 70 years. These rights include the right to object to derogatory treatment – defined as treatment contrary to an artist’s ‘honour or reputation’. The artist also has rights in regards to removal, with the first option to either document immovable work prior to destruction, or acquire the work if it is capable of removal.

The decision to erect a work of art in public will almost always be the product of a sufficiently powerful consensus at that particular time. The act of removing it will only succeed if the decision-makers in the present can come to a similar consensus with both the present and the past.

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