Many of you would have seen the press coverage surrounding the confiscation of photographs by the renowned local photographer, Bill Henson, last week in Paddington. It now appears Bill Henson may be charged with the publishing of indecent material under both NSW and Commonwealth law.

These recent events highlight the moral panic that currently exists in society around the issue of child sexual abuse. Unfortunately, the reactions of people such as the moral crusader Hetty Johnson and Prime Minister Kevin Rudd do little to address the problem. Instead, it looks like the concept of freedom of expression and an artist’s right to create thought-provoking and challenging work may be the innocent victims of this latest instance of collective hysteria.

Legal experts have almost unanimously given their view that the charges are unlikely to be proven in court in the event Henson is prosecuted. The courts will determine whether someone is guilty of publishing indecent material by making an assessment of whether the material flouts public decency and offends community standards, taking into account the manner in which the material is presented and the intended audience.

Despite the existence of this ostensibly objective legal test, it is important to recognise that the courts will fundamentally be required to undertake a moral and social judgment in these sorts of cases.

Conservative commentators often decry an activist judiciary and argue that the courts should stick to deciding issues of black-letter law. These sorts of criticisms are unfounded and are often nothing more than thinly veiled attempts at dismissing socially progressive judgments that challenge the status quo.

This is not a position that I am usually sympathetic to or endorse in any way. However, having said that, it is important to recognise that when the judiciary is called to resolve questions which are overwhelmingly moral or social in nature, the outcome is that the judiciary’s independence is called into question.

The Henson affair has thrown the limelight on some important issues, such as the role of art in society and the nature of effective child protection. These questions need political resolutions, not the intervention of the judiciary. Public officials who made the call to press charges against Bill Henson deserve to be roundly criticised for their actions.

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