Liberal MP Neil Brown affirmed his belief in the merits of a censorship system administered in light of community standards and values. It was on this basis that he bemoaned the South Australian government’s decision to break with other state governments and allow the sale of Portnoy’s Complaint: ‘The action of the South Australian government is a breach of the spirit of the legislation, if not the letter.’
Labor’s Ray Sherry doubted that censorship improved or maintained the morals of a society, but pleaded for the debate to move from ‘the Dickensian attitude’ to an ‘enlightened and contemporary’ one.
Liberal MP Bob Katter (Sr.) set himself against the tide by arguing that the abandonment of the moral standards that girded censorship was a tragedy and would lead to greater moral degradation. Liberalisation had gone far enough: ‘We should not go any further in this matter of censorship’. Klugman mocked this, noting that Katter did not appear to have been degraded or corrupted by seeing obscene material: ‘I have not noticed any difference in his behaviour now from that before he left here.’ Liberal MP Don Cameron, meanwhile, caused uproar when, demonstrating the existence of dirty material in magazines, he read out advertisements for sex toys, one-off liaisons, and swingers’ parties. Cried one MP: ‘You are corrupting the Hansard writer!’
Portnoy got a run during the debate. Labor MP Clyde Cameron said that he had read most of the books subject to censorship; although he hesitated to say it should be censored, he thought Portnoy was ‘thoroughly disgusting’, with one or two pages that made it ‘thoroughly unacceptable’. Liberal MP Alan Jarman was less damning — claiming only to be ‘not particularly impressed’ — but was ambivalent about banning it. Cameron and Jarman, along with Labor MP Gil Duthie, were, however, in no doubt that there should be age-based restrictions on films that were unsuitable for young people.
Debate went on.6 Liberal MP John McLeay suggested that the liberalisation of censorship could be connected with a higher abortion rate and the spread of sexually transmitted diseases, ridiculed literary and artistic merit defences, and dismissed the adverse international reputation that Australia had attracted for the censorship regime: ‘To heck with overseas critics!’ McLeay was no fan of Portnoy. Calling it a ‘collection of pure rubbish’, he argued that nothing would change even if all the four-letter words were eliminated from it. ‘It would still be garbage,’ he said. Liberal MP Michael MacKellar shied from such arguments, and instead called for more critical discussion of censorship. Labor’s Norm Foster turned the debate towards censorship of Australia’s military, intelligence, and foreign policy, arguing that there should be debate about activities at Pine Gap, at the North West Cape, and at Innisfail.
Nobody was willing to engage on these matters. When Liberal MP David Hamer — whose brother, Dick, was soon to become premier of Victoria — spoke, he talked of a British government report that argued laws on obscenity ‘provide[d] no serious benefit to the public’ and should be repealed. But, citing Disraeli, he added that the overwhelming majority of people in Australia supported the retention of censorship, and ‘in a democracy, it is occasionally necessary for a government to bow to the will of the people’.
***
What was the will of the people? To look at one sector suggested that the position was clear: censorship should be abolished. That month, students at the Australian National University opened the Orientation Week issue of their campus newspaper, Woroni, to find advice on abortion and contraceptives, and excerpts from Portnoy. ‘As the sale of Portnoy’s Complaint is quite legal and above board in two states — South Australia and Western Australia,’ the paper explained, ‘there is no sane reason why the residents of the ACT should not have the same chance to become depraved and corrupt.’ If readers ‘groove[d] on the depraving effects’ of those excerpts, they should buy a copy — perhaps from the Woroni offices.7 Yet not even Woroni was sure it should be selling the book: it defended its 65 cent mark-up as a prudent necessity should there be legal action.8
The provocation worked. Three days later, amid a debate in the Senate over adding student representation to the ANU’s University Council, senators of the socially conservative Democratic Labor Party successfully moved an amendment calling on ANU council members to ‘show a sense of responsibility and regard for the good name of the university’ by rejecting the inclusion of ‘crude pornography’ in student publications. Those senators specifically cited the Woroni issue and its excerpts from Portnoy. As one government senator who supported the amendment commented, Woroni’s actions were ‘an offence against any conceivable standards of decency, the ultimate in human degradation’.9 This ruckus had consequences: at a subsequent meeting of the student association, the director of student publications was censured and then removed from office, by 95 votes to 85. Woroni editor Ken O’Neill refused to be cowed by any of this: ‘Student newspapers are today the only papers in Australia free of pressure-group censorship.’
The trials over Portnoy continued. Police in the Northern Territory had raided two bookshops owned by Darwin city alderman Christopher Nathanael in September and October 1970; now, late in March 1971, they brought Nathanael to court on charges of ‘exposing an obscene book’ and offering it for sale. The first exhibit was one of the forty-seven copies of Portnoy that police had seized in those raids. With a potential sentence of six months’ jail and no exemptions in Northern Territory law for works of literary merit, Nathanael’s best hope was for a sympathetic magistrate. But Donald Miles SM was scathing about the novel. He compared it to writing found on lavatory walls, described it as ‘dirty, dirty’, and found Nathanael guilty on 1 April.10 But Miles was also persuaded that Nathanael was a man of good standing, and so discharged the matter with a lecture and a nominal penalty of a six-month good-behaviour bond.11
Meanwhile, in Tasmania, Portnoy was causing problems. The Tasmanian government’s decision to ban the novel even before Penguin had published it had prompted Charles Wooley, an editor of the University of Tasmania’s student newspaper, Togatus, to run a review in March 1970. It was not a particularly favourable article — ‘Not really worth all that fuss,’ ran the opening line — and the anonymous reviewer commented that finding passages to quote for the ‘illegal delight’ of the paper’s readers had been difficult. The best the reviewer could do was quote the scene where Portnoy and the Monkey have sex with an Italian prostitute: ‘Could this sort of passage justify the banning of the book?’12
After the issue was published, Wooley received a summons for a meeting with the state attorney-general, Max Bingham QC. A Rhodes scholar and Oxford graduate, Bingham was a recent entrant to politics, swept into government in the May 1969 election that had brought the Liberal Party to power after twenty-three years in opposition. Why the meeting? Bingham was well known to be a progressive force within the Liberal Party, Wooley recalled, and was — ostensibly — opposed to censorship. He couldn’t possibly be angry about the review, could he?
The meeting was about the review, but Wooley had been correct in thinking that Bingham was not angry about it. Wooley came in, was offered a cup of tea and a slice of cake, and he and Bingham talked the matter over in entirely civil terms. ‘Although the book is banned,’ Bingham said to him, ‘I don’t think that should preclude a measured appraisal of the work — even though you have, technically, broken the law.’
Wooley caught the subtext. ‘He didn’t say it directly,’ he recalled, ‘but it was clear that Bingham thought the review was fine. He all but said we should not do it again, though, as it would make things difficult for him.’13
Wooley was correct. Bingham was not about to raise a storm over the matter. The meeting had been arranged for him to pass on a friendly warning, in case Wooley and his colleagues had plans to run extracts of the novel in future issues of the newspaper. ‘One expects a bit of entertainment from university students,’ Bingham explained later, ‘but one needs to have regard to what the law of the land is.’14
Both men said their piece. And, with their respective positions made clear, they finished their tea and cake, and went their respective ways.
But there was more entertainment to come from students when John Reid, a scruffy, young PhD candidate in physics at the University of Tasmania and a part-time mathematics teacher at Fahan School, was charged with selling and distributing Portnoy.15 Reid had been concerned with the restrictions that censorship imposed on freedom of speech, and though he had no particular liking for Portnoy as a novel, he believed that its publication in Australia was a pivotal moment in the fight against censorship: ‘I believed Penguin deserved some support for publishing it.’16
When the book came out, he and like-minded students purchased 250 copies directly from Penguin and sold them in the university cafeteria as a protest against the ban. Making a profit was not their aim: ‘We were just selling the book to point toward freedom-of-speech issues.’ To ensure that their motivation was clear, they promised to donate all profits to ABSCHOL, the scholarship program for Aboriginal university students. But the protest had little impact. Said Reid: ‘Of course, nobody took any notice of us.’
Reid realised that he could make his point more cogently by selling copies of the book at Tasmania’s Parliament House. He therefore went to Salamanca Place in the evening of 15 September with half-a-dozen copies of Portnoy, and began to sell them in the foyer outside. The politicians hurrying out to dinner mostly ignored him. Only two stopped and bought copies; otherwise, there seemed to be an almost complete lack of interest. A Liberal MP whom Reid knew socially stopped and, idly, asked what he was doing there. At Reid’s explanation, the MP laughed that he would not buy a copy, but that he would take one. Reid felt again that his point had not been made. No one was offended. No one was indignant. Where there was a reaction, it was only amusement.
Then the police showed up. Inspector Leslie Southern, who — according to Reid — already seemed outraged, seized the remaining copies of Portnoy and flipped through a few pages. What he read scandalised him. He passed the book to Reid and told him to read it aloud. Did he think it was indecent, he asked. What about this? What about that? ‘Would you want your daughter to read this?’ he demanded.
Reid was nonplussed. ‘As a young and single man,’ he recalled, ‘that question seemed a bit irrelevant.’
Told he might be charged, Reid sheepishly agreed to leave. ‘Yes, it looks as though I will be the bunny,’ he said, according to the police.
Max Bingham regarded the matter coolly when it was brought to him. Aware that the censorship debate had widened to include the role of community standards, he believed it was appropriate to gauge whether Portnoy was tolerable by the community standards of his state. ‘You had to bear in mind,’ he explained later, ‘that standards in Tasmania were likely to be different to those in Kings Cross.’ The controversy that Portnoy had engendered offered an opportunity to get a reading of the public view. ‘I didn’t think it was for me to ban the blessed thing,’ he recalled. ‘The only way of testing the public attitude was to put the matter in the public arena and see what happened. That, I thought, satisfied the duty of the attorney-general.’17
Bingham was therefore untroubled by the summons issued both to Reid and to Ian Pearce, director and part-owner of one of Hobart’s literary stalwarts, Fullers Bookshop. A plainclothes police officer named Philpott had visited Fullers on 2 September and, without disclosing his identity, asked Pearce to order him a copy of Portnoy.18 Pearce had taken down his name and address, but admitted as he did so that he was uncertain whether they would receive the book at all. Nonetheless, a week later, a copy of Portnoy arrived in Philpott’s mailbox along with an invoice from Fullers for $1.48. Philpott returned to the store on 10 September, paid for the book, and asked if he could buy another copy. ‘We haven’t got any left,’ Pearce replied, ‘but Millers might have some — they had them on the counter yesterday. I don’t think they realised what they were selling. We have been taking orders and selling them surreptitiously.’ Philpott left, checked Millers — which had no copies — and returned again the next day, along with another officer, to inform Pearce that charges might be laid against him.
It seemed that police had the matter sewn up. But the March 1971 committal hearing against Fullers went disastrously awry. Police magistrate Harold Solomon was profoundly unimpressed with the way police had handled the matter. By their own admission, Pearce’s agreement to sell the book to Philpott was noncommittal at best. ‘That incident was of no more than an exploratory nature,’ ruled Solomon. ‘Comparable to a case where a man says, for example, to a bookseller, “If you ever come across a copy of West’s History, keep it for me, will you?”’ He dismissed the summons: ‘There is no case to go to a jury.’19
But Reid was a different matter. Expecting to be charged with a misdemeanour, he had been shocked to find that he was charged with offences contrary to section 138 of the criminal code. A nervous Reid approached Mervyn Everett QC, the shadow attorney-general in the Tasmanian Labor Party, to ask for help. Everett agreed to represent him. At the committal hearing, evidence given by two police officers showed plainly that Reid had sold the book. That was enough. Notwithstanding John McLaren’s appearance on the stand to testify to the literary merit of Portnoy’s Complaint, Reid was committed to stand trial in April in the Tasmanian Supreme Court.20 He showed up to that hearing heeding the only advice that Everett had given him: ‘John, just make sure you look neat and clean right down to your underpants.’ It was a bewildering experience, underscored by the Dickensian atmosphere and surreal twists of everyday life: in the convict-era courthouse, Reid trooped up the dark stone stairs from underground and into the dock, only to find that the judge’s clerk was a friend. ‘This was Tasmania, after all,’ said Reid. ‘So, when Bill asked me to confirm my name, he was smiling at me!’
Then there were the proceedings. Upon hearing the charges and checking the court file, the judge pointed out to the prosecution that Reid had not been selling the book for any gain. All the profits were going to ABSCHOL. ‘I don’t see that there is much of a case,’ the judge said airily. ‘Adjourned — sine die.’
He rapped his gavel and disappeared into his chambers. Reid had not been found guilty, nor had he been found not guilty. The case had been adjourned without a date being fixed. Though it was possible for it to be taken up again, the matter was, for all intents and purposes, over. Reid, who had found himself querying the judge’s Latin pronunciation, was shocked, thankful, and completely at a loss as to what to make of it.21
***
Such halting court action and token sentences were now becoming ridiculous. And there were signs that the saga was not over: as Penguin had foreshadowed after the November trial, the company successfully applied to the Victorian Supreme Court to have Ross’s finding reviewed.22 The company argued that Ross was ‘wrong in law’ to declare Portnoy obscene: he had failed to consider the meaning of the term within the meaning of the Police Offences Act, had ‘misdirected himself’, had ‘wrongly accepted’ submissions, and had taken into account ‘extraneous and irrelevant matters’. The appeal grounds included Ross’s failure to hear expert evidence about the book’s capacity to deprave or corrupt a particular class or age group of people, but what Penguin believed was its ‘best bet’ was Ross’s finding that Portnoy had literary merit. With that finding, their appeal argued, he should not have declared the publication and distribution of the book unjustified.23
That hearing, in March 1971, did not exactly go to plan. ‘Our Supreme Court appeal was short-lived,’ Michie wrote to Graham C. Greene, afterwards. ‘The judge had very strong views on the subject and gave our barrister a mauling. We have now moved for a full bench hearing, which gives us three judges. This should be listed for August.’24 Another trial against Penguin, with all the embarrassment and mirth of the first, beckoned.
This prospect led some observers to question whether there wo
uld be another trial in New South Wales. Most thought so, although attorney-general Kenneth McCaw seemed to suggest not when he was asked about the matter on 16 February.25 Notwithstanding that the Crown’s costs had reached $4,000, Eric Willis was firmly of the view that the case should be retried. ‘There should be another trial,’ he wrote on 17 February, ‘so that a jury of representative citizens (not just one person) can decide whether this book may be published.’26
A meeting that same day gave the Crown’s prosecutor an opportunity to have his say. Speaking in his chambers with officials from the Crown solicitor’s office, Kenny gave verbal advice recommending that a further trial be held. There was no reason to not adhere to the ordinary procedure in criminal cases, he said.27 Moreover, his personal opinion was that if a second trial were not held, the government would be ‘extremely weakened so far as action against any future publications was concerned’.
However, Kenny said that he could make no promises about the outcome of a second trial. It was ‘most likely’ that the jury would split, and ‘quite probable’ that disagreement could result in another no-verdict. Kenny was hedging his bets, expressing no great confidence: ‘He felt the prospects of conviction were not great,’ wrote one of the attendees. Kenny’s frustrations with the nature of the case were also clear:
Mr Kenny stated that the weight of evidence on literary merit, as opposed to the non-rebuttal of such evidence by the Crown, was a problem but he felt certain that there must be a person or persons in the community of academic standing who could give evidence for the Crown on the literary merit angle. In this regard he was looking for persons who could draw a distinction between ‘skill in writing’ and ‘literary merit’. The Instructing Solicitor would be endeavouring to locate such witnesses and the Department will be providing any assistance possible.28
Should the jury fail to agree on a verdict for a second time, Kenny said that he ‘could not see how any further legal proceedings could be pursued’. Despite Kenny’s pessimism, what settled the matter was his advice that there were no legal barriers to a second trial, and the political need for the government to look strong. The decision was made ‘on the spot’. A second trial would go ahead.
The Trials of Portnoy Page 23