Breaking the local By-Laws? Audrey Martin Napanagka sells her art outside the John Flynn Church
Breaking the law? Audrey Martin Napanangka sells her art outside the John Flynn Church

A month ago to the day I wrote a piece for Crikey about the recent moves by Alice Springs Town Council (the ASTC) to ban street artists – all of whom are Aboriginal – from selling their artworks in the Todd Mall that runs through the centre of town.

Here is a bit of what I said last month:

Late in April the [Alice Springs] News ran a letter from Michael Hollow, proprietor of the Aboriginal Desert Art Gallery some distance down the mall from the John Flynn Church. Hollow’s letter, a copy of which had earlier been sent to the ASTC, was a swingeing attack on the Aboriginal street artists and urged the ASTC to take urgent action against a threat posed by them. Hollow claimed Aboriginal street artists posed such a serious threat to his business so as to be a matter of commercial “life or death” for he and many other traders.

The ASTC, like most small-town councils, is sensitive to the views of small local businesses and took prompt action. In mid-May Erwin Chlanda reported the ASTC was: “…clamping down in Todd Mall on hawkers of paintings who don’t have a permit.” They have been “moved on” in recent days by council rangers. CEO Rex Mooney says the council is seeking to “educate people about the by-laws breach and encouraging them to follow the correct procedure and seek a council permit”. The permits cost $205 a day and vendors are obliged to have a [sic] $10 million public liability insurance.”

Nothing has changed in the last month – apart from some more weasel words from the ASTC. So earlier today a few local artists and activists decided to poke a sharp stick or two into the scab of the ASTC’s stupidity and stage a bit of civil disobedience in the Todd Mall – and sell some of their banned wares out in the open.

I wandered downtown early this afternoon and saw a small crowd gathered about to hear a few speeches, some music and catch some rays on the grass outside the John Flynn Memorial Church in the centre of the Todd Mall.

Rachel Napaljarri Jurrah
Rachel Napaljarri Jurrah

I also ran into Rachel Napaljarri Jurrah, an Aunty of Liam Jungarrayi Jurrah, a rising star at the Melbourne Demons AFL club and her close friend Audrey Martin Napanangka. Both ladies are established artists and were originally from the small town of Yuendumu, 300 kilometres north-west of Alice Springs on the fringes of the Tanami Desert.

Napaljarri and Napanagngka told me that they liked to sell their art in the Mall and enjoyed the contact with tourists, and that they also enjoyed bartering with them for a good price for their art. They also said that they had good relationships with some of the more ethical galleries based in the Mall and that from time to time would also sell their art through those stores.

Audrey Martin Napanangka spoke about selling art in the Mall
Audrey Martin Napanangka spoke about selling art in the Mall

Napanangka also told me about her experiences with some of the more unethical operators in Alice Springs and beyond – the carpetbaggers and other scumbags that prey upon the more vulnerable artists that wander into town from out bush. She spoke out strongly against their exploitative practices and said that she preferred to deal with her own customers – the reputable dealers, galleries and tourists – face-to-face.

After I came back home from my wander around town I poked about on the net to see if there was much there to do with artists selling their wares in public. I haven’t found much in Australia – apart from a brief reference to a NSW Ombudsman’s Report from about 2000 that was noted in this report by Bruce White of the Green Left Weekly in March of that year:

Street artists v Sydney City Council

By Bruce White

SYDNEY — The Ombudsman has replied evasively to a complaint about council treatment of street artists but has, in passing, testified to how deliberate council’s policy is. Sydney City Council completely bans visual artists showing and selling their art on the streets of Sydney. The Ombudsman’s report, released in February, revealed that Sydney lord mayor Frank Sartor directed his staff to use police powers under the Police Offences Act to enforce council’s policy against street artists. The report also revealed that the relevant section of the Police Offences Act has since been abolished. A senior Sydney City Council official claims that council does recognise the right of an artist to show and sell their art in public places and admits he cannot say at the moment what power council has to stop artists. But, he says, the council’s law enforcement section is working on something.

I haven’t been able to locate that report online but if anyone can track it down I’d be most appreciative.

Working on something” sounds pretty much like what the ASTC would say. As I noted in my Crikey piece the current bans being enforced by the ASTC on the selling of street art in the Todd Mall use an old set of By-Laws that have been in the long and slow process of being replaced by a new set that, as Chris Graham has reported at Crikey, have been nothing less than controversial.

And apparently, as reported in the local Centralian Advocate just yesterday, Malarndirri McCarthy, the NT Local Government Minister  has made further requests to the ASTC to fix up the new By-Laws that the ASTC signed off on earlier this year.

And I also found this interesting 2007 case from the United States Court of Appeals for the Ninth Circuit in the matter of Steven C. White v the City of Sparks, Nebraska. This case was refused to be heard (presumably on appeal by the City of Sparks) by the US Supreme Court and stands as law affirming artist Steve White’s right to display and sell his art in public.

Of course we – and much of the rest of the world – don’t enjoy the protections offered by the First Amendment, which states that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Maybe one day…

The Ninth Circuit had some interesting observations about White’s rights to sell his art on the street, including this introductory comment about White’s arts practices:

Appellee Steven C. White (“White”) is an itinerant artist who earns a living by setting up an easel on a city’s sidewalks and in parks and selling his paintings to passersby who take an interest in his work. A painter of nature scenes, White believes his paintings convey, among other messages, the message that human beings are driving their spiritual brothers and sisters, the animals, into extinction.

The City of Sparks prohibits the sale of merchandise in it’s parks but has an exception in an area known as Victorian Square to vendors with permits that are subject to preapproval by the City. White challenged that scheme and at first instance in the District Court unsuccessfully sought a ruling that all visual art is protected by the First Amendment.

On appeal the Ninth Circuit Court said that:

While not having spoken directly on the protections afforded visual art, the Supreme Court has been clear that the arts and entertainment constitute protected forms of expression under the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) (music without words); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66 (1981) (dance); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (theatre); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-34 (1975) (topless dancing); Miller v. California, 413 U.S. 15, 34-35 (1973) (serious artistic work, unless obscene in the legal sense); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952) (movies).

Against this backdrop, it is clear that White’s self-expression through painting constitutes expression protected by the First Amendment. In painting, an artist conveys his sense of form, topic, and perspective. A painting may express a clear social position, as with Picasso’s condemnation of the horrors of war in Guernica, or may express the artist’s vision of movement and color, as with “the unquestionably shielded painting of Jackson Pollock.”

Nor are we convinced by the city’s argument that White’s sale of his paintings removes them from the ambit of protected expression. “[T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away.” (“It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.”); Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 633 (1980).

I’m no big fan of right-based remedies – for mine often as not they just end mired in long and fruitless journeys through the Courts – but sometimes I think they can serve a very real and useful purpose – and if a Bill of Rights for Australia were to incorporate rights for people like Napanangka and Napaljarri and their countrymen and women to sell their art in the main commercial area of the biggest town in central Australia then maybe that would be a good thing.

Maybe it is about time.

What do you think? Let me know.

I reckon that Napanangka and Napaljarri would agree with me.

Audrey Martin Napanangka
Audrey Martin Napanangka