Governments and their counselling of the arts

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Oliver Spencer

04 Apr 2014


Over the last few years, ARTICLE 19’s artistic expression project has seen several governments interfere in public funding of the arts in order to make it clear to everyone that artists have to toe the government line.

Just a few weeks ago, Arts Minister, George Brandis, wrote to the Australian Council, threatening to grab executive control because the Council was funding Sydney Biennial despite the festival rejecting tainted sponsorship money.

The global arts community is angry at the government’s meddling, but is struggling to articulate the wrong they feel has happened. After all, some argue, the public purse is the source of money, and the government is (should be) elected partly to oversee public expenditure.

Indeed, rarely have artists and their representatives used a rights-based language and approach, or even worked with human rights defenders, to challenge such government interference.

And who can blame them? When the government machine challenges an artist or publisher, dragging them into the public eye, and criticising them on a scale that drowns out any reasoned response.

Well, it’s time it stopped. And to do it, we should be turning to what we already know.

In the public service

In international human rights law, governments have both a negative obligation to refrain from interfering in free expression, and a positive obligation to encourage it, such as through enabling diverse voices to speak.

Much of the time when people think of the right to freedom of expression, they think of the media, because that’s where the majority of censorship happens.

Usually the printed press falls under the negative obligation, because as an unlimited resource (basically paper, although increasingly online), there is no legitimate reason to regulate, and any attempt to do so is censorship.

TV and radio fall under both: yes, the government is obliged not to interfere in the content, but because radio wave signals are limited in number, a government must, when it shares out the waves, consider it’s positive obligation to encourage freedom of expression, particularly regarding diversity of content.

However, when sharing them out, we all know that commercial TV and radio companies will never be entirely diverse or serve the public good as they are primarily motivated by money.

So public service broadcasters (PSBs) were created to fill this gap, and we as defenders of expression support them wholeheartedly, knowing that when properly mandated they fulfil both the right to expression and the public’s right to information that is in the public interest.

Crucially however, while they need public money to fulfil the government’s positive obligation, any government that tries to interfere with them violates the negative obligation: they would no longer serve the public interest but instead become tools for propaganda.

But what has this to do with the arts?

There are many arguments among artists and cultural workers for and against using public money to fund the arts. Some of those arguments push the arts towards the printed press model, i.e. it’s an unlimited medium, and so let the market and the community decide.

However, given that the majority of the world seems to have decided to use public funds in order to build public access and national legacy, our role is to say that under international human rights law, they should only do so if they use a PSB model.

If we make this argument, suddenly the Australian case becomes much clearer, because no democratic leader in their right mind would so brazenly threaten a PSB. Australia would rebound with cries of “censorship!”

The added benefit of using PSB arguments is that case law and international standards on PSBs are already well established, so it doesn’t take much to utilise the same legal arguments.

If we used PSB standards, what would we say about a public arts funder?

First of all, we’d make it very clear what purpose the public funder (such as the Council in the Australian case) serves. A very clear constitution would use human rights language and declare first and foremost that the council’s purpose is to promote the right to freedom of artistic expression. It does this by serving the public interest as a powerful instrument for promoting people’s participation in cultural life, and for encouraging informed cultural debate and a plurality of diverse artistic expression.

In order to promote free expression, the constitution must first and foremost ensure the art council is independent, balanced and impartial by protecting it from political and commercial interference. This means that under no circumstances should a politician like Brandis have the ability or means to threaten.

To do this the constitution must clearly lay down why it exists, and how it operates. No government politician, public official or business leader should hold sway over what it chooses to do to implement its mandate, who it funds, what it prioritises, and how it makes decisions. In particular, its budget should be set far in advance by parliament, not the executive.

But it should be accountable too

As well as protecting its independence, the constitution should also be clear who it serves. The flip side of the right to freedom of expression, is the right to information, and so audiences themselves have a right to an accessible diversity of cultural information and viewpoints.

As such, the constitution should be clear that the funder’s role is to encourage, alongside diverse artistic expression, truly universal and open access, participation, and so forth. In particular, it should require a board that consists not just of artists or art experts, but also representatives of audiences and other members of civil society.

When it supports the arts, it should reflect a range of views, and take into account political, regional, ethnic, cultural, linguistic and religious diversity, with an emphasis towards those who do not have a voice within the commercial sector.

Social inclusion and the promotion of dialogue and social capital should be clear aims, reaching out to all populations- old and young, urban and rural, rich and poor- in order to put them on the same footing, regardless of status.

It should also be careful when giving a voice to groups, not to falsely confine or preserve them, but instead promote creativity in dealing with diversity and identity.

Challenging the concept of “arms length”

Of course, this all sounds fairly logical, and is probably written into most funder’s constitutions to a degree. The truth, however, as with all human rights standards, is in the outcry when something goes wrong.

Many governments claim that they recognise the importance of the right to freedom of expression, and that their decisions about funders are kept at arms length (whatever that means legally - remember that governments do not give us rights – we have rights and governments have obligations).

George Brandis probably thinks that the Australian Council is wasting public funds by giving money where a commercial donor has been rejected, and that he’s acting on behalf of the public good.

However, his actions are a threat to an institution that serves to promote a right, not one that manages a meaningless public budget. By threatening to withdraw funds because of what the recipient says, Brandis as a politician is directly threatening the Arts Council’s independence.

This is a clear violation of the right to freedom of expression.

So the next time we hear of a government insisting that an arts funder stops funding because a politician or a public official doesn’t like what is being expressed, we all need to be there to point it out.


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