Do You See what I See? Iconic Art and Culture and the Judicial Eye in Australian Law

Law, as a practice, makes the claim that it deals in clear, verifiable and ascertainable facts and knowledge, eschewing the insensible, or what can only be ‘felt’ or ‘sensed’. And this is the rub; what happens when the courts make decisions about visuals and images? What exactly do they see? My purpose in this chapter is to explore how Australian courts, in a diverse set of circumstances, have ‘seen’ visuals or images, such as art or other cultural and creative outputs, and to propose a corrective to their empiricist reading of them, through the use of a Panofskian iconological schema. As in other jurisdictions, Australian courts have engaged in decision-making about matters typically relevant to images and visuals in disputes over copyright law, commercial transactions, blasphemy and taxation law. But for the purposes of this chapter, I explore how Australian judges ‘see’ visuals and images in areas of law concerned with, or draw upon, uniquely Australian experiences: in broadcasting law, cultural heritage law, and the trust establishing a famous annual portraiture prize featuring Australians – the Archibald Prize.