Bill Henson is the victim of vigilantism and a police force seeking to utilise the criminal law in a way that borders on abuse of process.

The driving force behind the public execution of Henson is, it seems, Hetty Johnson, a self proclaimed child abuse campaigner, who runs an organisation called Bravehearts. She claims to have had a role in the resignation of former G-G Peter Hollingsworth in 2002, after revelations about his less than satisfactory handling of child abuse complaints when he was Archbishop of Brisbane.

Johnson is, like most morality campaigners, myopic in her vision, and more than happy to go after high profile scalps to further her obsessive campaign. Like Senator Joseph McCarthy, the notorious anti-Communist of the 1950s, Ms Johnson plays investigator, prosecutor, judge and jury. Her comments last Friday to the media, after the New South Wales Police raided Ros Oxley’s Paddington gallery to remove Henson’s images, confirm Johnson’s readiness to prejudge issues.

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“It’s child exploitation, it’s criminal activity and it should be prosecuted, both the photographer Bill Henson … but also the gallery because these are clearly images that are sexually exploiting young children,” Johnson said.

“They are clearly illegal child pornography images, it’s not about art at all, it’s a crime and I hope they’re prosecuted.”

These comments show a cavalier disregard for fairness on Johnson’s part.

Bill Henson by the way can rest easy. He should not be charged with any criminal offence, but if he is his lawyers should examine an abuse of process argument against the New South Wales Police. Ms Johnson and the officers in the New South Wales Police who decided to investigate Henson and the Ros Oxley Gallery have obviously not bothered to read section 91H of the New South Wales Crimes Act.

Section 91H deals with the offences of production and dissemination of child pornography. It defines child pornography to mean material that depicts or describes a child under 16 engaged in sexual activity; in a sexual context or as a victim of torture, cruelty or physical abuse, “in a manner that would in all the circumstances cause offence to reasonable persons.”

Surely even the most junior constable in the New South Wales Police could see that the Henson photographs comprehensively fail to fit within that definition.

But even if they did, section 91H provides a defence to Henson and the Ros Oxley Gallery. It provides that it is a defence to a charge of producing or disseminating material if it can be shown that, “having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose.”

And what of the alleged breaches of Commonwealth law? The Commonwealth Criminal Code makes it an offence to communicate by email, or via the Internet, or other means child pornography images. But once again child pornography is defined in a manner similar to the New South Wales law.

Henson and the Ros Oxley Gallery have done nothing wrong – the law in this area is clear. What is wrong is the conduct of the New South Wales Police and Hetty Johnson – both have clearly misunderstood the law. In the case of Johnson that is to be expected, but there is no excuse for the New South Wales Police.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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