Fink and Sheppard were similarly cautious. They destroyed the smuggled pages of Trial as they were typeset, and split up the typeset pages, so that no person could be caught with a complete copy of the book. There could be no mistakes in this: as Sheppard wrote, everything they did was geared towards throwing a ‘probing light on the present censorship laws’.12
By April 1965, they had printed 10,000 copies of The Trial of Lady Chatterley and distributed them to bookshops in Sydney, Melbourne, and Brisbane.13 Unveiled on 15 April amid a flurry of headlines about the possibility of court action and proud statements from Sheppard and Fink of their willingness to go to court, the book sold briskly. It was a stunt, a show — and at it, Stephen Murray-Smith recalled, ‘the whole of literate Sydney smiled with delight’.14
Fink and Sheppard sent copies to state and federal authorities, with letters inviting prosecution. They did not regard Trial as being ‘in the slightest degree offensive’, they wrote, but the lack of certainty of whether its publication broke ‘any law that has been decided or tested’ was not sustainable in the long term. ‘Therefore, one of the purposes of this letter is to ask that you permit this book to be put on sale and, if you wish to launch a prosecution, this should be launched against Minderon Pty Limited [the company Fink had set up for publishing the book] and not against an individual bookseller.’15 The bravado was no affectation: ‘I wanted to go to jail for obscenity!’ Fink said later. ‘I suppose that I was cavalier about it — but it was the right thing to do.’
The letter sent to Kenneth Anderson, however, was geared towards finding an acceptable resolution. Assuring the Customs minister that no court would convict them for publishing Trial, Sheppard argued that any charges would put Anderson’s department ‘in a bad light’. He suggested that the minister immediately lift the ban and, importantly, gave him some inducement to do so. ‘If then the ban were lifted,’ Sheppard explained, ‘Mr Fink and I would be losers financially because our edition would not sell against the much-lower priced Penguin edition which would be available.’16
For several days, Fink and Sheppard heard applause from the public and silence from the censors. Unwilling to rescind the ban and unable to intervene, Anderson ruefully announced that the onus was on the states to deal with the matter. But the Queensland government did nothing, and the New South Wales authorities shied away entirely, pursuing a policy that The Sydney Morning Herald called ‘masterly procrastination’.17 It was not accidental. ‘You must think I’m a fool,’ said the state’s chief secretary, Labor Party politician Gus Kelly, when presented with Sheppard’s letter. Pointing to the postscript, which contained a not-too-subtle reminder of Sheppard’s military rank and service, Kelly added, ‘You think we’ll prosecute this man?’18
Victoria, however, was another matter. At Rylah’s direction, police raided bookshops and seized copies. But instead of prosecuting Sheppard or Fink, the Victorians elected to pursue the booksellers who had stocked it, issuing summons to Austral bookshop proprietor Paul Flesch and Toorak newsagent John Petty, and instigating charges based on offences to the Judicial Proceedings Publication Act.19 Sheppard reacted with outrage, but Flesch privately pleaded with him to tone it down. His solicitors, he told Sheppard, had stressed that any inflammatory criticisms would only antagonise the authorities. For Flesch’s sake, Sheppard should be careful — and, preferably, say nothing.20
Sheppard resisted this. ‘We will meet your wishes as far as possible,’ he replied, ‘provided this does not clash too much with our objective — which is to force some changes in the censorship laws. We, also, have some good legal advisors here as well.’ Flesch’s solicitors, he pointed out, were looking out for Flesch; and, fairly, the best course for Flesch was that he was never prosecuted. But, from Sheppard’s point of view, the best outcome was the opposite: ‘We must somehow force the government to have the law and their powers tested by a competent court — that is the whole object of the exercise.’21
But events were moving fast. Simultaneous with the fight Fink and Sheppard had sought to bring on, the Council for Civil Liberties had opened another front. They announced their intention to challenge the 1964 ban on The Quest for Love, a psychoanalytic study of sex and love by British scholar David Holbrook, which had been banned for its use of passages from Lady Chatterley.
It was with this promise at front of mind, with defiance in the air, inaction rife, and the ground giving way beneath them, that cabinet met on 13 May. By now, Customs had given way: it recommended that the bans on Trial and Quest be rescinded. Anderson, grudgingly, echoed this.22 But, he added, doing so was likely to demolish the government’s rationale for maintaining the ban on Lady Chatterley’s Lover. ‘It would and without doubt,’ Menzies said to this.
Frustration with the situation was palpable. ‘Why do we make life so complicated for ourselves?’ treasurer Harold Holt demanded to know. Pointing out that the government had established the Literature Censorship Board precisely so as to take decisions of censorship out of the government’s hands, Holt lamented the lack of an agreement between the states for uniform censorship: ‘We’re only busybodying in trying to knit [the] states together.’ David Fairbairn, the minister for the air, wondered if the decision to rescind the ban on Trial and Quest would backfire: ‘If we yield on this,’ he said, ‘[it] will encourage further stunts.’
Menzies was frustrated but also realistic. ‘We’re getting into, or [are] in, a state of farce,’ he said. ‘Books [are] coming in page for page by post and [are] published here … Perhaps our error, in retrospect, was not to accept [the] Board’s recommendation to release Chatterley.’ There was much to be said for Holt’s view and, in the future, for abiding by the decisions of the board. ‘The trouble is that we have to eat [our] words,’ Menzies added. ‘But we’ve done that before!’23
Cabinet agreed that the bans on The Trial of Lady Chatterley and The Quest for Love would be rescinded. Within days, the Victorian government dropped the charges against Flesch and Petty, and other banned books, including Lady Chatterley’s Lover, were referred to the board and cleared for release. By July, Lawrence’s novel was available in bookshops across the country — except in Victoria, where Rylah mounted a rearguard action to keep the novel out.24 Bookshops in other states had no problems with mailing copies to paying readers: thus, in effect, the most storied title in the censorship fights was finally free. Sheppard thought it amusing. ‘Obscene one day in June 1965, and no longer obscene the next,’ he wrote. ‘… Perhaps we Australians had grown adult in the interim.’25
But the overarching fight was not over. The Lady Chatterley affair had exposed crucial flaws in the censorship system. The federal government’s inability to prosecute individuals for domestically produced editions of banned works, and the inconsistency of state government prosecutions of those individuals, had emboldened the anti-censorship campaigners. A uniform approach, to ensure that censorship was maintained from harbour port to bookstore, was necessary if the system was to maintain any kind of consistency and respectability.
***
The embarrassment that Fink, Sheppard, and Buckley had caused heralded an apparent retreat on the part of the Customs department in the second half of the 1960s. The ban on Lolita was removed in 1965. The ban on Gore Vidal’s novel The City and the Pillar was removed in 1966. The two-year-old ban on G.M. Glaskin’s novel No End to the Way — subsequently recognised as Australia’s first gay novel — was removed in 1966. The ban on J.P. Donleavy’s The Ginger Man — a comic, manic novel about an American GI who goes from bender to bed and back again — was rescinded in 1967.26
For some, this was cause for alarm. One Brisbane dentist wrote a public telegram to Canberra expressing his outrage at the ‘fall from grace’ implicit in the release of Lady Chatterley. ‘Your government’s astounding release of four sex-soaked books constitutes [a] major contribution to potential cases of delinquency both juvenile and adult,’ he declared. ‘… If Au
stralia’s moral decline is to be halted, the present malfunctioning censorship machinery operated by four intellectuals — most academics — must be replaced by a commonsense down to earth body drawn from average homes.’27
But, at the same time, progress on a uniform censorship policy began to gather pace. It was a decided change from the past, where progress had been halting and usually prompted only by embarrassment or scandal. When federal and state ministers met in 1961 to discuss the prospect of an agreement, there was no movement on the idea. Nor could agreement be found at a meeting in April 1964. That September, Anderson therefore took to cabinet a proposal to establish either a federal judicial body that would centralise determinations of whether a publication was obscene, or an advisory body that would reach a decision and seek to bind the states to its recommendations.28
But cabinet would have none of it. Menzies rubbished the proposal, and minister for external affairs Paul Hasluck argued that it would be the ‘worst’ idea to centralise responsibility for censorship. ‘If there is a need for uniformity — and I don’t accept there is,’ he said, ‘it is for uniformity in the law relating to obscenity.’ That point carried the day. Cabinet agreed that at the next meeting of federal and state ministers, there should be discussion of reaching uniformity across the states on what constituted obscenity. ‘The present system of difference between the states is ludicrous,’ said Menzies. ‘As of now, it promotes the sale of pornography rather than blocks it.’ What the government needed, he argued, was ‘some co-operative system of consultation in order to arrive at a uniformity of interpretation’.29
The meeting that followed again failed to produce a consensus, prompting Holt’s lament during the Lady Chatterley mess that the federal government’s involvement was ‘busybodying’. But it was the pain and embarrassment of Lady Chatterley that finally made the states recognise the need for uniform censorship. Thus it took them only six months to agree to a plan for uniform censorship of literary works; over the next two years, they worked to institute that plan.
Amid a host of amendments to the Customs Act, the National Literature Board of Review was established on 1 January 1968, replacing the Literature Censorship Board, and tasked with considering books of ‘literary, artistic, or scientific merit’. It would consider imported and domestically produced titles; it would tender judgements that were understood to be binding; and a book’s contravention of federal or state law on obscenity could be tested in a court of law.
From far away it sounded fine. On close inspection, however, the new system was beset by inconsistencies and problems. They mattered nought for the government: it expressed its ‘pious hope’ that the new system would last.30
***
The first test of the new system came that year, when University of Sydney lecturer Dennis Altman, on a trip to the US, posted a trunk of books to his address back in Australia. Customs opened the trunk and seized copies of the novels Myra Breckinridge, by Gore Vidal, and Totempole, by Sanford Friedman.31
Released in February 1968, Breckinridge had become a bestseller in the US. Shocking, absurd, buoyed by Vidal’s fizzing intelligence and wit, the American edition of Breckinridge had been banned from import to Australia in September. The UK edition, from which Vidal had removed some words and lines ‘in deference to the high moral climate’ of the UK, had been permitted. Totempole, meanwhile, which depicted a homosexual Jewish man’s coming of age, had been banned since 1966.
Returning home, Altman realised that the revised Customs Act offered an opportunity to challenge Customs’ seizure of his books. Poet and academic Stephen Murray-Smith had considered doing so when Customs seized his copy of Borstal Boy, but was dissuaded when he found that he could be liable for costs.32 The newest changes to the Customs Act, however, had removed this possibility: a plaintiff could only be liable for costs if the goods that had been seized were worth more than $200.
The Council for Civil Liberties agreed that the opportunity was worth pursuing and, when the case came up for hearing in December 1969, approached George Masterman to represent Altman pro bono.
Then aged forty-one, Masterman was a barrister of patrician manner and fierce integrity. His schooling and his training were of a sterling pedigree: the King’s School, Oxford, the University of Sydney, and articles at the establishment law firm Allen Allen & Hemsley. Masterman went to the Bar in 1956, a year after his admission as a solicitor, took rooms on the progressive eleventh floor of Wentworth Chambers, and developed a broad and sweeping practice. Later the New South Wales ombudsman, Masterman co-authored a textbook on the Trades Practices Act 1965, edited the conference proceedings of the Australian Institute of Political Science (for which he was also a director), and for a spell edited its journal, Australian Quarterly. Masterman’s political outlook was liberal and, considering his education, fittingly cultured. He delighted in representing the nudist sunbathers of Lady Jane Bay, pointing out to sceptics their good behaviour and respectability, and was a happy volunteer for the Council for Civil Liberties. ‘He was driven and he was so idealistic,’ said his wife, Joan Masterman. ‘He was always putting his hand up to be involved in causes.’33
The case he could present for Altman, however, was straitened. There was limited opportunity to extract a win in the small pea-green courtrooms in Queen’s Square, Sydney. Masterman was not permitted to quote reviews of either book to prove their literary merit. He was not allowed to produce any evidence of community standards that could show the books were inoffensive. He could not even cite from the expurgated edition of Myra Breckinridge, which had been published in Australia with passages that the prosecution now cited as examples of the book’s obscenity. All that Masterman could argue was that the literary merit of both books trumped their supposed obscenity. It was a thin case to make, although Masterman fortified it with far greater elegance than did the prosecution.
Justice Levine — the same judge who had ruled in the Oz case — announced his decision six weeks later. Totempole did not offend community standards, and should be returned to Altman, he ruled, but Myra Breckinridge was most certainly objectionable. ‘The author has spelled out, as it were,’ Levine said, ‘physical details as to permit the reader to form only mental pictures which the words filthy, bawdy, lewd, and disgusting aptly describe.’
One book in; one book out: Altman called it a draw. But, as he was to argue, the fight made it clear that the censorship regime was not wholly based — as its reputation in the community suggested — on preventing the import and dissemination of sex-based obscene material. The censorship was political. ‘Under the guise of preventing obscenity we in fact ban material of a political nature,’ Altman wrote. ‘… As political and cultural radicalism increasingly coalesce, and radicalism is expressed in attacks on traditional moral virtues, censorship acts not only to preserve “good taste”, but also to exclude radical critiques.’34
Cases like this prompted Geoffrey Dutton and Max Harris to solicit essays for their book Australia’s Censorship Crisis. Published in February 1970 with strident criticism of the censorship regime from a host of eminences, the book included lengthy extracts from various banned works, including Myra Breckinridge, Henry Miller’s Tropic of Capricorn, and Steven Marcus’s The Other Victorians. ‘We certainly have rendered ourselves liable to prosecution by publishing the banned stuff,’ Dutton said. ‘But we are hoping the basic seriousness of the book will be obvious to any unbiased reader.’35
No charges would result, but the book contributed to the growing foment in literary circles over censorship, which had been punctuated by a burst of critical coverage in the Melbourne-based literary magazine Meanjin. One of the most notable instalments came from Arthur Angell Phillips, the longtime English master at Wesley College, coiner of the term ‘cultural cringe’, and a former censor of nine years’ service on the Customs censorship boards. Phillips agreed that any decision to ban a book was ‘almost always an act of exceptional repression b
y international standards’, but, perceptively, attributed this to Australia’s ‘cultural geography’ and the self-perpetuating existence of the censorship regime. The existence of the board, he argued, could only be asserted by drawing a line on what should be censored. ‘If in practice they were never to draw the line at all, they would feel intolerably pointless. It’s a dog’s life for a watch-dog if there are never any trespassers to bark at — so the postman gets harried.’
Moreover, Phillips identified what might be considered the most insidious effect of censorship. With no clarity on whether a work might be prosecuted, publishers and traders ‘have to draw the line well on the windy side of the law’. Thus, Phillips argued, the main effect of censorship was not the ‘sentence of execution’ that censors imposed, but the ‘literary onanisms and abortions for which they are directly responsible’: the stories never written, the books never published, the voices never heard.36
For the censorship regime to be truly made to totter and fall, writers, publishers, and sellers would need to be willing to face those sentences — and to defy them.
CHAPTER 5
A literary onanism
Defying censorship would require courage, boldness, and skill — and a good bit of ammunition. The American writer Philip Roth possessed all of these qualities in spades, and would also, at the crucial time, supply that vital ammunition — what might also be called, if with a rather different meaning to what Phillips had suggested, a ‘literary onanism’.
The Trials of Portnoy Page 5