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Editors --- "Opinion" [2000] AltLawJl 59; (2000) 25(4) Alternative Law Journal 156

Heritage, art and the law: culture and chaos

Debates about heritage occur with great regularity and, if the media is any indication, are of constant interest to us..The recent debate over the Eureka flag represents a number of issues that heritage debates focus on. There is the issue about the context in which a cultural object should be held; then there is the issue about who actually should/does own cultural property-the State or the family; and lastly there is the issue about how cultural heritage can best be protected or cared for.

It has been argued that 'heritage can mean anything at all' and given the sorts of debates that have been reported by the media we might agree with this claim. Current debate over the heritage value of the stadium at Waverley Park hinges on the likelihood of the stadium being placed permanently on the State Heritage Register for Victoria. The response from the AFL has been to cry politics rather than heritage. The destruction of the Adelaide Hills Face Zone by horticultural development has been extensively reported by the media. The Face Zone is supposed to be native bush, which rings the city of Adelaide and is constantly being challenged with applications by horticulturalists to establish vineyards and olive groves or from industry wanting to install infrastructure such as mobile phone towers. (The risk to the Zone is thought to be so great that it has been nominated for the National Trust List of Endangered Places.) The conflict between those pro-development and the heritage conservationists was exacerbated when an Environment, Resources and Development Court judge ruled that an olive grove development would be in keeping with the low intensity agriculture allowed under the Zone's regulations. The Supreme Court overruled this decision, highlighting the difficulty that judges have in understanding what constitutes our natural heritage.

As photographer and art teacher Glenys Haensel depicts in her photographic piece that was commissioned for the cover of this edition of the Alternative Law Journal, the absence or presence of family and memories is part of the fabric of all our lives. Viewing heritage through the lens of the photographer, Glenys' images represent its breadth and depth with images of the built and natural environment and of people and families that have influenced and created our culture and identities. These visual representations make a statement not only about perceptions of heritage but also contribute to the body of art which draws on centuries of learning about communicating with images.

Glenys' work highlights two art and heritage themes that run through this issue: one is the use of art in understanding or improving how law operates, and the other is about law and the protection of heritage. These themes are not necessarily exclusive to one another.

In this issue a range of articles have been included that deal with various issues about where heritage and art meet or intersect with the law. Drawing on Martha Nussbaum's writing on the judicial role, Rodney Allen argues that judges need to consider and take into account the benefits of literature. It is interesting to note that Nussbaum herself draws on the heritage of Western thought by using the work of the ancient Greek philosophers and the Roman Stoics, particularly what they had to say about the use of compassion and mercy by those in a position to make public decisions. Rather than arguing for the legal system to embrace literature, Julia Grix uses the dramatic devices of literature to provide us with an active account of what a rape victim experiences in court. The frightening thing is that this piece of drama is not a performance, it is not entertainment, it is real.

The second theme of law and the protection of heritage is apparent in Christine Nicholls' brief. She draws our attention to the intrinsically cultural context of the Australian legal system in her analysis of some recent cases concerning Aboriginal art and authorship. While it has long been acceptable for an artist to be assisted in the production of their work, the actual creativity is usually accredited to a single person. As Nicholls argues, this view is at odds with the cultural background of many Australian Aboriginal artists and rather than using the Australian Copyright Act 1968, a new more culturally appropriate law should be enacted. Terri Janke also looks at the issue of protecting the cultural rights of Indigenous artists. Janke provides an overview of issues raised at a recent seminar that focused on the recently published Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights. George Couvalis and Cheryl Simpson, focusing on the ANZAC tradition, explore the idea that the law not only protects our heritage but also helps to construct its meaning.

The theme articles in this issue show that Heritage, Art and the Law are inextricably entwined; one in various ways enhances the other. As we search for meaning in our lives through the recognition of a need for heritage and self­ expression through the arts, we also recognise that there are competing interests in deciding 'whose heritage' should prevail. This remains a highly political and emotionally charged issue.

Expression of identity and culture in the arts has led to disputes over ownership of intellectual property. This has become increasingly chaotic and complicated with the use of the Internet where cultural property can be accessed globally in a matter of minutes. Heritage laws and intellectual property law are increasingly called upon to settle disputes over these matters. As the legal system grapples with new developments in the arts and heritage arenas it could be argued that it is for now, a period of culture and chaos.

Helen Macdonald

Helen Macdonald advises on native title and community relations management in the private sector.

Cheryl Simpson

Cheryl Simpson teaches legal studies at Flinders University.

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