Performance Artist Battles Australia Council in Court Over Pulled Funding

Melbourne-based performance artist Casey Jenkins is suing the Australia Council for the Arts over the statutory body’s revocation of funding for their live-streaming performance, Immaculate, in 2020, which documents their attempts to self-inseminate. The artist has alleged that the Australia Council discriminated against them as a queer, single parent and damaged their career. They are now requesting in federal court that the Council release more documents about its original decision made in 2020.

At a federal hearing on October 12, Jenkins’s legal representative Emrys Nekvapil said the the documents turned over by the Australia Council in relation to its decision, including those from the office of then-arts minister Paul Fletcher, were fewer than expected. They requested the Council conduct a more thorough search for information, including emails, text messages, and online chat histories sent between August and October 2020. Meg O’Sullivan, the legal representative for the Australia Council argued in court that Jenkins’s team was “fishing” for evidence to show discrimination against the artist. During another hearing on Thursday, O’Sullivan explained that the more expansive search would include 4TB of data and contain around 4.9 million items for review, and cost an estimated AUD 2.4 million, an amount which Jenkin’s lawyer Nekvapil rejected. The hearings are currently ongoing.

In August 2020, Jenkins was awarded an AUD 25,000 (USD 18,000) grant from the Australia Council through the art organization Vitalstatistix’s annual experimental festival Adhocracy. The funding was originally intended for an international project, but when the country closed its borders due to the pandemic, the artist sought revisions to the funding, which were initially approved.

The project was announced as a lockdown livestream, and in October 2020 garnered public attention and outrage from right-wing commentators, such as Bella d’Abrera of the Institute of Public Affairs and former political advisor to Tony Abbott, Peta Credlin, who publicly denounced the performance as “nonsense,” “an offence to Catholics,” and criticized its funding by the Australia Council as “beggar’s belief” on Sky News. Following the public backlash, Jenkins received a letter from the Council, which informed them of its decision to rescind funding on grounds of the project presented “ethical concerns” and “unacceptable, potentially long-term and incalculable risk.” In the public statement explaining the reason for revoking of the funds, the Council stated that the project “was not in keeping with the original peer-assessed grant and created potential legal risk for the Australia Council.”

Jenkins—who had an agreement with a donor who would provide them with semen once their ovulation began—envisioned Immaculate as a performance that would record their self-insemination attempts through monthly livestreams. The audience was invited to view the process, which Jenkins stages while naked and seated on a sofa in front of a white LED sign reading “IMMACULATE.” The recordings were also uploaded to their website. The project aimed to “re-conceptualize conception through a queer-lens” and “elevate the experience of queer reproduction and disrupt heteronormative parenting narratives.”

In response to the Australia Council’s initial decision, Jenkins published a statement on their website: “I have been trying to conceive for some time and in my artwork Immaculate I am simply documenting and presenting the perfectly common, legal and ethical process of self-insemination. None of the budget for my work that Australia Council funded [is] related to medical appointments, vitamin supplements or anything else connected to the process of trying to conceive. [T]he budget allocated money for things like lighting, live-stream subscription and recording equipment.”

In statement released on October 12, 2020, Vitalstatistix said the group “unequivocally expresses our support” for Jenkins’s project and “reject[s] the misrepresentation of this work as Casey being paid to become pregnant or the artist having a child as an art project.” The group called on Australia Council to “to support artists and uphold freedom of artistic expression at arms-length from Government.”

In April 2021, Jenkins started taking legal actions and sought damages from the Council for “defamation and/or injurious falsehood, breach of contract and breach of a duty of care,” and declared that the Council’s decision to withdraw its funding was unlawful. On their Facebook page, Jenkins shared that they eventually escalated the Australian Council’s alleged discrimination to the Australian Human Rights Commission. As the matter was unresolved at conciliation, the Human Rights Commission gave the artist leave to take the matter to federal court.

Both the artist and the Australia Council told ArtAsiaPacific that they were unable to comment on the case as it was before the federal court.

Pamela Wong is ArtAsiaPacific’s associate editor and Monica Fernandez is ArtAsiaPacific’s editorial intern.

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