A performance artist who live-streamed attempts to conceive a baby through self-insemination has had a major legal victory after Australia's premier arts-funding body was effectively ordered to hand over more documents about why it ripped funding from the controversial project.
Casey Jenkins is suing the Australia Council for snatching away a $25,000 grant over an exhibition called Immaculate, which showed audiences the possible moment of conception through monthly self-inseminations and daily IVF injections.
Jenkins claims the Australia Council acted beyond its powers by withdrawing the funding, and accused the arts body of sex discrimination, defamation and breach of contract, which it denies.
The lawsuit has been underway since September 2021 but boiled over earlier this year when the Australia Council was accused of failing to hand over more documents behind the decision, including text messages, cloud-based files and folders and board papers.
On Wednesday, judicial registrar Amelia Edwards ruled in favour of Jenkins, and found the Australia Council had not followed court orders.
"I accept the applicant's submission that the respondent did not undertake reasonable searches for the purpose of giving standard discovery," she said.
Ms Edwards ordered that another hearing would be held to ensure "what orders, if any, are required to ensure compliance with the respondent's obligation to give standard discovery".
Outside the Federal Court, Jenkins told the ABC that they were relieved, but also "exhausted with the secrecy" surrounding the case.
"All I want from this is the truth of what happened to come out and hopefully now, that will be possible," they said.
"Hopefully there'll be that transparency now and we can see exactly how things went.
"I feel like for artists in general, this is a win because we are able to defend ourselves."
Council pulled funding over possibility of 'bringing a new life into the world'
The Australia Council withdrew funding from Jenkins in 2020, citing unacceptable risks.
"We cannot be party to any act that could result in bringing a new life into the world," its chief executive, Adrian Collette, said in a letter to Jenkins at the time.
"The possible current and longer-term consequences for the child, the child's parent and the child's donor are inappropriate for a corporate government entity to accept," he wrote.
But Jenkins rejected this and said that the Australia Council had "grossly and insultingly mischaracterised my artwork".
"As I have repeatedly articulated to Australia Council and as they are well aware I am not trying to conceive as an artwork," Jenkins said in response at the time.
"I have been trying to conceive for some time and … I am simply documenting and presenting the perfectly common, legal and ethical process of self-insemination."
"I was simply funded to document and present a part of my lived experience and a process I've been undertaking for some time. That the Australia Council chose to imply differently is deeply offensive to me."
Jenkins said their work was neither illegal or unethical.
"There are grave ethical concerns here yes, but the concerns are not with my actions, they are with the highly discriminatory actions of a government entity like Australia Council towards me, my practice and my life and their widespread and damaging implications," they said.
The Australia Council said it was unable to comment as the matter was before the Federal Court.
Wednesday's decision comes after the Australia Council asked for a court order forcing Jenkins to stump up $75,000 to pay for the manpower needed to manually uncover any documents sought in the court case.
Law firm Arnold Bloch Liebler, who is representing Jenkins, argued that the sum was "oppressive", which the court ultimately agreed with.
"I just feel really relieved that we're going to be able to have all the information we need to proceed and I don't have to put up 75 grand which just wasn't possible as a solo parent and artist to defend myself," Jenkins said.
The case continues.
