Opinion Number. 1459

Subject

Customs customs: ‘indecent or obscene’: tendency to corrupt and deprave

Key Legislation

Customs Act 1901 s 52 ( c )

Date
Client
The Comptroller-General of Customs

The question on which I am asked to advise is whether this book(1) is ‘indecent or obscene’ so as to be a prohibited import within the meaning of the Customs Act, section 52(c).

This is not a general question of the censorship of morals. It is a particular question as to the applicability of the precise words ‘indecent or obscene’. And it may be added that, if the work in question comes within that category, even if its importation were not prohibited its possession or exhibition for sale would be an offence against State law.

The boundary line between what is indecent and what is not is very difficult to draw, and depends not only upon the nature of a work but upon the nature of the publicity given to it. What might be perfectly decent in a medical work might be grossly indecent in a newspaper. The test–not always easy to apply–is the tendency to corrupt and deprave those before whom it is likely to come.

The book purports to be a portrait, and is a very unpleasant one, of life in a country town in Australia, and of the sexual characteristics and adventures of the townspeople. There is nothing necessarily indecent in the subject; but obviously it may lead itself to indecency of treatment. Considerable latitude must be allowed to authors in their presentation of such a subject. It is sometimes said that art is not concerned with morals; but when an artist (literary or other) exhibits his work to the public, he is not exempt from the law, which does concern itself with morals.

Much of the dialogue in this book is in my opinion indecent and obscene. It may be said that it occurs naturally in the book as things which the characters portrayed might actually say–as things which are ‘in character’. But that test would justify any imaginable degree of obscenity. I think that the indecency in this book–which goes far beyond what is necessary to the presentation of the subject–is of a character which brings it within the terms of section 52(c).

It may be that, if this book is prohibited, consistency would suggest the prohibition of other works which have not been so dealt with. The matter is therefore one of policy as well as of the strict interpretation of the law.

[Vol. 24, p. 568]

(1) The book the subject of this advice, as indicated by the title of the advice, was Redheap by Norman Lindsay. This was the first Australian novel banned. Redheap remained on the prohibited list until 1958, although it was freely available in Britain, the USA and other countries during this time (see http://www.lib.unimelb.edu.au/collections/special/exhibitions/bannedboo…)