Lawyers for an artist who had their Australian government funding withdrawn for a project in which they intended to self-inseminate over a live stream say it is possible emails linking the decision to the former arts minister have not been disclosed.
Casey Jenkins, who uses the pronouns they/them, is suing the Australia Council in the federal court for withdrawing funding for the performance exhibition Immaculate in 2020.
The court heard on Wednesday that Jenkins believed the Australia Council had not properly complied with court orders to provide documents relevant to the decision to withdraw the funding.
The council, the country’s main public funding body for the arts, withdrew Jenkins’ funding after it was criticised by rightwing commentators including Peta Credlin and Dr Bella D’Abrera of the Institute of Public Affairs.
In 2020, Jenkins received $25,000 funding from the council for an international project.
When the pandemic closed international borders, they sought an amendment to the funding so that it could be used for Immaculate, a live stream of them self-inseminating with donated sperm while discussing their past experiences with conception. They said the project aimed to confront stigmas against queer pregnancy and parenting in the art world.
The amendment was initially approved, but then rescinded by the council in a letter sent in September 2020.
Emrys Nekvapil, for Jenkins, told judicial registrar Amelia Edwards that the search for documents related to the decision had turned up fewer files than may be expected, including from the office of the then arts minister Paul Fletcher.
Jenkins is seeking a court order that would force the Australia Council to conduct a more detailed search of documents including emails, online chat histories and text messages transmitted between August and October 2020.
Nekvapil said using only the search terms “Casey” and “Immaculate” in a previous search for documents relating to the decision was not sufficient.
He questioned why, for example, the Australia Council had only turned over about 10% of the emails it had sent Jenkins, though accepted that the council would not turn over multiple copies of the same email if they were included in a thread.
But Meg O’Sullivan KC, for the Australia Council, described the requests of Jenkins’ lawyers on at least five occasions as a “fishing expedition”.
She said the orders proposed were not properly founded, as they made no reference to actual documents that had not been turned over in discovery.
Evidence provided by lawyers for Jenkins in support of claims about the discovery methodology used by the Australia Council was also irrelevant, O’Sullivan said.
“It amounts to ‘you didn’t do it the way we would do it so you therefore must be wrong’,” she said.
The hearing continues.
