Wednesday, September 17, 2003

Sex, lies and videotape: “Cunnamulla” still under siege
Guest blog by Lyn

In 2000, Dennis O’Rourke released his controversial documentary, “Cunnamulla”. The film concerns the town of the same name – 800km west of Brisbane, with a population of about 1500. He interviewed Cunnamulla residents about their lives – the challenges of the isolated community, the interaction of the locals, the racial mix and the various tensions. As this ABC article put it, “To this day, many of the townsfolk resent the way Cunnamulla was portrayed in the movie.”

O’Rourke was hit first with a defamation action, which you can read about here. But a second, more recent challenge has emerged.

Two teenagers, at least one of whom was thirteen at the time of filming, were interviewed by O’Rourke. Their parents claim that O’Rourke discussed the content of the interview prior commencing – and it was agreed he could speak with their daughters about particular subjects, including the “Miss Maid Contest” and racism.

The discussion which took place in front of the cameras was much broader. One of the girls frankly discussed her sex life: “I would prefer to use protection but most boys out here don't like using protection. You just tell them to watch what they do.”

Their parents are suing O’Rourke. The surprising thing is that they are doing so under section 52 of the Trade Practices Act – a section more commonly associated with second hand cars or supermarket advertising. Section 52 relates to conduct in ‘trade or commerce’ that is misleading or deceptive. The parents’ argument seems to be that O’Rourke’s conduct was misleading or deceptive because he went outside the (allegedly) agreed subject limitations.

It seems odd that interviewing subjects for a documentary is activity in ‘trade or commerce’, but a majority of the Full Federal Court has just confirmed this view – you can check it out in hard copy law reports under Hearn v O’Rourke (2003) ATPR 41-931. The majority’s reasoning is that if a documentary is ‘commercial’, anything essential to creating that documentary is activity related to trade or commerce.

So what does this actually mean?

This decision does not mean that O’Rourke has lost, it just means that they can try to sue him using this avenue. A major point of contention is likely to be the allegation that he promised to confine the interview to any subject – I can’t imagine any documentary maker agreeing to such a hard and fast rule before an interview.

I do think O’Rourke may have taken advantage of his youthful interview subjects – it’s so typical of a thirteen year old to talk tough, and then think – crap! People will watch this! But that’s a separate issue to this scary legal precedent.

Although I’m resorting to The Castle style ‘it’s the vibe’ rambling, this just feels off to me. If I have to come up with a legal argument – I’d say that this construction of ‘trade and commerce’ is too broad. As for a non-legal argument: if people are really worried about how a documentary maker or journalist could portray them, then they should watch what they say in front of a camera.

To finish with O’Rourke’s own words, back when the first defamation case began: "It's the truth. It's not just the truth for the people depicted in the film but for thousands of other people like them all over Queensland, all over Australia for that matter. I don't feel I have to defend that position." Well, it looks like he may have to defend it all over again.

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