The Trials of Portnoy

by Patrick Mullins

  ‘A fresh trial for Portnoy’, Canberra Times, 2 March 1971, p. 1.

  Michie to Greene, 15 April 1971, JC 118/2, PRHA, University of Reading.

  Allen Allen & Hemsley to K.M. McCaw, 11 May 1971, NSWSA: Case file, 2464 of 1970, 10/9387.

  Barton to Willis, 14 May 1971, NSWSA: NRS 906, 12/4121, item A69/950.

  Eric Willis annotation, 17 May 1971, on Barton to Willis, 14 May 1971, ibid.

  P.J. Kenny to Undersecretary of Justice, ‘Advice on no bill application’, 17 May 1971, NSWSA: Case file, 2464 of 1970, 10/9387.

  Undersecretary of Justice to Allen Allen & Hemsley, 17 May 1971, ibid.

  Chapter 15: A cloistered and untried virtue

  Unless otherwise noted, what follows of the trial is drawn from the transcript; see NSWSA: NRS 2713, 19/8516.

  Author’s interview with Malcolm Oakes, 26 June 2019. It is worth noting that at this time women had to register to even be considered for jury duty.

  Author’s interview with Margaret Harris, 28 November 2018.

  ‘Judge Phillip Lyburn Head QC MBE’, Australian Law Journal, vol. 63, p. 578.

  ‘Booksellers in court over Portnoy’, SMH, 19 May 1971, p. 10.

  Ibid.

  Author’s correspondence with Malcolm Oakes, 9 July 2019.

  Author’s interview with Maureen Colman, 3 December 2018.

  There is evidence to suggest that this stung Kenny: ‘The presence in the Act of these provisions [of the tendency to deprave and corrupt],’ he wrote later, ‘enabled Counsel for the accused in the second trial to repeat the jibe he had made in the first trial that the effect of the Act was to require the standard of reading matter in the community to be determined by regard to what was suitable for persons sixteen years of age.’ See Kenny and Vine-Hall to McKay, 17 September 1971, NSWSA: NRS 906, 12/4121, item A69/950.

  Author’s interview with Malcolm Oakes, 26 June 2019.

  Chapter 16: Paper tigers

  ‘Govt drops book charge’, SMH, 29 May 1971.

  Eric Willis, annotation, 7 June 1971, on correspondence with the undersecretary, 4 June 1971, NSWSA: NRS 906, 12/4121, item A69/950.

  Chipp statement, 16 June 1971, NAA: A425, 72/4378.

  Customs office Canberra, 17 June 1971, ibid. Labor MP Richard Klugman, who had asked Chipp when he was going to admit defeat after the inconclusive verdict of the first NSW trial, telegrammed him thus: ‘Congratulations on finally adopting the course I suggested in my question on February 16. I hope it will not take so long in future.’ See ‘Chipp and Portnoy’, Review, 20 June 1971, p. 1043.

  ‘Customs (prohibited imports) regulations’, n.d., ibid.

  Author’s interview with Peter Froelich, 13 December 2018.

  Author’s interview with Hilary McPhee, 6 March 2019.

  Greene to Hooker, 4 June 1971, JC 118/2, PRHA, University of Reading.

  Hooker to Greene, 8 June 1971, ibid.

  Minutes of Penguin Books Australia Limited, Directors’ Meeting, 31 July 1971, p. 1, D1294/4/5/1/1, Penguin Archive, University of Bristol, UK.

  John Hooker insisted on being present for that destruction: McLaren, 1996, p. 195.

  ‘State will be a laughing stock’, Mercury, 22 June 1971, p. 12.

  Beard to O’Connor, Bingham statement, 24 June 1971, NAA: A425, 72/4378.

  Author’s interview with Max Bingham, 14 February 2019.

  Lyons to Harrap, 24 August 1971, JC 118/2, PRHA, University of Reading.

  O’Connor to the Comptroller-General, 24 June 1971, NAA: A425, 72/4378.

  McDonald to Harrap, 21 September 1971, JC 118/2, PRHA, University of Reading.

  Undersecretary, Premier’s Department, to Harrap, 28 September 1971, ibid.

  Evans and Ferrier (eds), 2004, p. 11.

  ‘First Australian Portnoy ban’, Courier-Mail, 5 May 1972, p. 3. See also — for a slanted version — ‘Brisbane magistrate and that Portnoy’, Tribune, 23 May 1972, p. 8.

  Sutton, 1973. Queensland would maintain its ban on the book for some time yet. In May 1973, a Brisbane antiquarian bookseller was fined $20 for selling the book. He was under the impression that it was by then legal to do so. ‘I feel very much like a schoolboy being reprimanded for a breach of discipline,’ he said afterwards. See ‘Portnoy cost $20’, SMH, 16 May 1973, p. 9.

  Hansen and Jensen, 1971, p. 9.

  Chipp and Larkin, 1978, p. 127.

  Cabinet notebook, ‘Sir John Bunting, 21 March 1972–20 June 1972’, NAA: A11099, 1/123.

  Cabinet minute no. 898, ‘Little Red School Book — without submission’, 18 April 1972, NAA: A5909, 898.

  Walsh, in Munro and Sheahan-Bright (eds), 2006, pp. 57–63.

  ‘Police buy book’, Canberra Times, 30 November 1972, p. 9.

  ‘Latest challenge to censor has mass appeal’, SMH, 29 November 1972, p. 7.

  Author’s interview with Richard Walsh, 15 May 2019.

  ‘A censorship bill that went wrong’, Canberra Times, 26 December 1972, p. 2.

  CPD HoR, vol. 85, 21 August 1973, p. 122.

  Day, 1996, p. 441.

  Chapter 17: Stories of Australian censorship

  John Hooker and Geoffrey Dutton phone conversation transcript, 10 September 1995, Papers of Geoffrey Dutton, NLA 7285.

  Moore, 2012, p. 289.

  Author’s interview with Richard Walsh, 15 May 2019.

  Twentieth Annual Report, Literature Board of Review, 1 July 1973–30 June 1974, p. 2.

  The initial bill, the Obscene and Indecent Publications Bill, sought to assimilate obscenity and indecency in order to overcome problems presented in the prosecutions of Wendy Bacon and Angus & Robertson. That bill removed the defences for literary and artistic merit, and the provisions for trial by jury in obscenity cases. But this final measure — justified on the grounds that jury trials caused an expense and commitment of time that was unnecessary and inefficient for the ‘cheap, salacious’ publications then commonly the subject of prosecution — provoked considerable opposition, and the bill lapsed. Some of its changes had been suggested by Kenny and Vine-Hall in the aftermath of the second Portnoy trial in NSW. They had suggested doing away with the term obscenity on the grounds that the Hicklin test was no longer compelling for many jurors, and that indecency served the Crown’s purposes well enough; rephrasing the definition of indecent to include the transgression of accepted community standards of decency; quantifying literary merit as substantial; and reversing the onus of proof on whether the manner of sale of a work is justified. See Kenny and Vine-Hall to McKay, 17 September 1971, NSWSA: NRS 906, 12/4121, item A69/950.

  Coleman, 1994, p. 146; Bacon and Coleman, 1975, Turner (ed.), p. 62. Robert Manne (1993, pp. 47–49) makes a similar argument about censorship as expression of disapproval.

  Griffith, New South Wales Parliamentary Debates, 12 March 1975, pp. 4564–70.

  Keesing, 1988, p. 204.

  Peter Cowan, interviewed by Stuart Reid, October 1991–August 1992, NLA Oral History, TRC 2897, pp. 9–10.

  Dutton, in Dutton and Harris (eds.), 1970, p. 6.

  Bedford, 2016, p. 57.

  Sullivan, 1997, p. 137.

  The Queensland Literature Board of Review conceded in 1971 that ‘modern trends in publication indicate that the term “literary merit” is fast becoming as difficult to define as the concept of obscenity’. See Seventeenth Annual Report, Literature Board of Review, 1 July 1970–30 June 1971, p. 2.

  Author’s interview with Wendy Bacon, 26 June 2019.

  Roth, 2016 [1975], p. 16.

  Tom Molloy, ‘I do not think art has got anything to do with the Vice Squad’, SMH, 15 April 1982, p. 1.

  Author’s interview with Julie Rigg, 31 August 2019.

  Peter Coleman, ‘Living in a book world of
double standards’, Bulletin, 12 September 1970, p. 23.

  Greene to Michie, 17 November 1970, JC 118/2, PRHA, University of Reading.

  Bibliography

  ARTICLES

  Dennis Altman, 1970, ‘How I fought the censors and (partly) won’, Meanjin, vol. 29, June, pp. 236–39.

  Wendy Bacon, 2011, ‘Being free by acting free’, Overland, vol. 202, Autumn.

  William Macmahon Ball, 1935, ‘Australian censorship’, Australian Quarterly, vol. 7, no. 26, June, pp. 9–14.

  Joel Barnes, 2014, ‘The right to read: the Book Censorship Abolition League, 1934–37’, Labour History, no. 107, November, pp. 75–93.

  Dennis Bryans, 2011, ‘The trials of Robert Close’, Script & Print, vol. 35, no. 4, pp. 197–218.

  Lloyd Davies, 1978, ‘The complaint against Portnoy’, Artlook, vol. 4, no. 2, March, pp. 33–37.

  Roger Douglas, 2002, ‘Saving Australia from sedition: Customs, the Attorney-General’s Department, and the administration of peacetime political censorship’, Federal Law Review, vol. 30, pp. 135–75.

  Lawson Glassop, 1960, ‘The We Were the Rats case’, Overland, no. 19, December, p. 38.

  Albert Goldman, 1969, ‘Portnoy’s Complaint by Philip Roth looms as a wild blue shocker and the American novel of the sixties’, Life, no. 58, 7 February, pp. 52–57.

  J.A. Iliffe, 1956, ‘The Australian “obscene publications” legislation of 1953–55’, Sydney Law Review, vol. 2, no. 1, pp. 134–39.

  Colm Kiernan, 1976, ‘Arthur A. Calwell’s clashes with the Australian press, 1943–1945’, University of Wollongong Historical Journal, vol. 2, no. 1, pp. 74–111.

  H.J. Kleinschmidt, 1967, ‘The angry act: the role of aggression in creativity’, American Imago, vol. 26, iss. 1, Spring, pp. 98–128.

  Robert Manne, ‘A case for censorship’, Quadrant, September 1993, pp. 47–50.

  Roddy Meagher, 1985, ‘Ave atque vale’, Bar News, Winter, p. 8.

  Nicole Moore, 2016, ‘Zola to Roth: Literature in the dock in Australia’, Buch Macht Geschichte: Beiträge zur verlags-und Medienforschung, P.F. Blume (ed.), De Gruyter, Berlin, pp. 311–28.

  A.A. Phillips, 1969, ‘Confessions of an escaped censor’, Meanjin, no. 4, December, pp. 508–13.

  Philip Roth, 1967a, ‘A Jewish patient begins his analysis’, Esquire, vol. 67, no. 4, April, pp. 104, 107, 191–93.

  — 1967b, ‘Whacking off’, Partisan Review, vol. 34, no. 3, Summer, pp. 385–98.

  REPORTS

  1904 New South Wales Royal Commission on the Decline of the Birth-Rate and on the Mortality of Infants in New South Wales Report, vol. 1, William Applegate Gullick, Sydney.

  THESES

  Dominic Bowes, 2012, ‘Exposing Indecency: censorship and Sydney’s alternative presses, 1963–1973’, Honours thesis, University of Sydney.

  Stephen Payne, 1980, ‘Aspects of Commonwealth Literary Censorship in Australia, 1929–1941’, Masters thesis, Australian National University.

  BOOKS

  n.a., 1965, The Case of Lady Chatterley’s Lover, Horwitz Publications, Sydney.

  James Atlas, 2019, Remembering Roth, Audible, New York.

  Wendy Bacon and Peter Coleman, 1975, Censorship, Ann Turner (ed.), Heinemann Educational, South Yarra.

  Sybille Bedford, 2016, Would You Let Your Wife Read This Book?: the trial of Lady Chatterley’s Lover, Daunt Books, London.

  Jeffrey Berman, 1980, The Talking Cure: literary representations of psychoanalysis, New York University Press, New York.

  Frank Bongiorno, 2012, The Sex Lives of Australians: a history, Black Inc., Collingwood.

  Ken Buckley, 1970, Offensive and Obscene: a civil liberties casebook, Ure Smith, Sydney.

  — 2008, Buckley’s!: an autobiography, A&A Publishing, Australia.

  Vincent Buckley, 1991, Last Poems, McPhee Gribble, Melbourne.

  Anthony Burgess, 1984, Ninety-Nine Novels, Allison & Busby, London.

  Dorothy Campbell and Scott Campbell, 2007, The Liberating of Lady Chatterley and Other True Stories: a history of the New South Wales Council for Civil Liberties, Southwood Press, Marrickville.

  Bennett Cerf, 1977, At Random: the reminiscences of Bennett Cerf, Random House, New York.

  Don Chipp and John Larkin, 1978, The Third Man, Rigby, Adelaide.

  Robert Close, 1977, Of Salt and Earth: an autobiography, Thomas Nelsons, Melbourne.

  David Clune and Ken Turner, 2006, The Premiers of New South Wales, Volume 2, 1901–2005, Federation Press, Annandale.

  Peter Coleman, 1963, Obscenity, Blasphemy, Sedition: censorship in Australia, Jacaranda Press, Brisbane.

  — 1994, Memoirs of a Slow Learner, Angus & Robertson, Pymble.

  Alan Cooper, 1996, Philip Roth and the Jews, State University of New York Press, Albany.

  Zelman Cowen, 1971, From the Trial of Lady Chatterley to the Trial of Oz: some footnotes on a decade, particularly with reference to literary censorship, Third Annual Housden Lecture, Carey Grammar School, Kew, supplement to the Australian School Librarian, December.

  Tanya Dalziell and Paul Genoni, 2013, Telling Stories: Australian life and literature 1935–2012, Monash University Publishing, Clayton.

  Lloyd Davies, 1986, In Defence of My Family: the inside story of the Hewett libel cases, Peppy Gully Press, Peppermint Grove.

  David Day, 1996, Contraband and Controversy: the customs history of Australia from 1901, AGPS, Canberra.

  Don Dunstan, 1981, Felicia: the political memoirs of Don Dunstan, MacMillan, South Melbourne.

  Keith Dunstan, 1968, Wowsers: being an account of the prudery exhibited by certain outstanding men and women in such matters as drinking, smoking, prostitution, censorship, and gambling, Cassell, North Melbourne.

  Gil Duthie, 1984, I Had 50,000 Bosses: memoirs of a Labor backbencher, 1946–1975, Angus & Robertson, Sydney.

  Geoffrey Dutton, 1984, Snow on the Saltbush: the Australian literary experience, Viking, Ringwood.

  — 1994, Out in the Open: an autobiography, University of Queensland Press, St Lucia.

  — 1996, A Rare Bird: Penguin Books in Australia 1946–96, Penguin, Ringwood.

  Jason D. Ensor, 2013, Angus & Robertson and the British Trade in Australian books, 1930–1970: the getting of bookselling wisdom, Anthem Press, London.

  Raymond Evans and Carole Ferrier (eds), 2004, Radical Brisbane: an unruly history, Vulgar Press, Carlton North.

  Sam Everingham, 2009, Gordon Barton: Australia’s maverick entrepreneur, Allen & Unwin, Crows Nest.

  Charlie Fox, Bobbie Oliver, and Lenore Layman (eds), 2017, Radical Perth, Militant Fremantle, Black Swan Press/Curtin University, Perth.

  Robert Garran, 1958, Prosper the Commonwealth, Angus & Robertson, Sydney.

  Robin Gerster and Jan Bassett, 1991, Seizures of Youth: the 1960s and Australia, Hyland House, South Yarra.

  Robert Gott and Richard Linden, 1994, Cut It Out: censorship in Australia, CIS Publishers, Carlton.

  James Hall and Sandra Hall, 1970, Australian Censorship: the XYZ of love, Dai Nippon Printing Co., Hong Kong.

  Steve Hare (ed.), 1994, Penguin Portrait: Allen Lane and the Penguin editors 1935–1970, Penguin, London.

  Frank Hardy, 1961, The Hard Way, T. Werner Laurie, London.

  Paul Hasluck, 1997, The Chance of Politics, Text, Melbourne.

  Søren Hensen and Jesper Jensen, 1971, The Little Red Schoolbook, trans. Berit Thornberry, Stage One, London.

  Michael Heyward, 1993, The Ern Malley Affair, University of Queensland Press, St Lucia.

  Michael S. Howard, Jonathan Cape, Publisher, Jonathan Cape, London.

  Jean-Claude van Itallie, 1968, America Hurrah, Pocket Books, New York.

  Judith Jones and Guinevera Nance, 1978, Philip Roth, Frederick Ungar Publishing Co., New York.

  Prue Joske and Louise Ho
ffman, n.d., Inside Perth’s Bookshops, Second Back Row Press, Sydney.

  Nancy Keesing, 1988, Riding the Elephant, Allen & Unwin, Sydney.

  Ai Kobayashi, 2013, W. Macmahon Ball: politics for the people, Australian Scholarly Publishing, North Melbourne.

  Dominick LaCapra, 1982, Madame Bovary on Trial, Cornell University Press, Ithaca.

  Thomas W. Laquer, 2003, Solitary Sex: a cultural history of masturbation, Zone Books, New York.

  Valerie Lawson, 1995, The Allens Affair: how one man shook the foundations of a leading Australian law firm, Macmillan, Sydney.

  J.S. Legge (ed.), 1971, Who’s Who, Herald & Weekly Times, Melbourne.

  Jeremy Lewis, 2010, Shades of Greene: one generation of an English family, Jonathan Cape, London.

  Wm. Roger Louis (ed.), 2008, Penultimate Adventures with Britannia: personalities, politics, and culture in Britain, I.B. Tauris, London.

  Martyn Lyons and John Arnold (eds), 2001, A History of the Book in Australia 1891–1945: a national culture in a colonised market, University of Queensland Press, St Lucia.

  David Marr, 2008 [1991], Patrick White: a life, Random House, North Sydney.

  — 1999, The High Price of Heaven, Allen & Unwin, St Leonards.

  A.W. Martin, 1993, Robert Menzies: a life, vol. 1, Melbourne University Press, Carlton.

  — 1999, Robert Menzies: a life, vol. 2, Melbourne University Press, Carlton.

  John McDaniel, 1974, The Fiction of Philip Roth, Haddonfield House, New Jersey.

  John McLaren, 1996, Writing in Hope and Fear: literature as politics in postwar Australia, Cambridge University Press, Melbourne.

  Hilary McPhee, 2001, Other People’s Words, Picador, Sydney.

  Nicole Moore, 2012, The Censor’s Library, University of Queensland Press, St Lucia.

  Frank Moorhouse, 2007 [1980], Days of Wine and Rage, Vintage, Sydney.

  J.E. Morpurgo, 1979, Allen Lane: king penguin, Hutchison, London.

  Paul W. Mosher and Jeffrey Berman, 2015, Confidentiality and Its Discontents: dilemmas of privacy in psychotherapy, Fordham University Press, New York.