Live, Music, News & Commentary Cultural Control is out of Control: Why we need cultural policy to guide regulatory development. By Jon Perring | November 21, 2019 | Music, art and cultural practice have long been the target of state social control. It’s an old story. Be it the outlawing of music “characterised by a series of repetitive beats,” as the UK’s infamous 1994 Criminal Justice Act put it; the decades-long Australian government ban on African-American Jazz bands after ‘Sonny Clay’s Coloured Idea’ were deported in 1928 for so-called “abandoned” behaviour; the well documented 2010 battle between the music community and industry and the Victorian government over their wrong-headed assumption that live music causes violence; or, more recently, the current stand-off between an obstinate NSW government and music festivals around illicit drug policy. Recently, I have studied the Environment Protection Authority’s new draft Environment Protection Regulations for Noise in Victoria and can see a number of major flaws, problems and contradictions, which will result in serious unforeseen consequences. These issues ultimately stem from the government’s longstanding policy vacuum and apathy when it comes to valuing art, performance and live music practice and enjoyment. The new mantra of the creative economy simply does not see art and culture as intrinsic to the human experience, and offers no effective counter-balance. The new mantra of the creative economy simply does not see art and culture as intrinsic to the human experience, and offers no effective counter-balance. The proposed EPA regulations for noise define “Environment Values” as values that are to be protected against noise. Interestingly, the environment is not one of them! Neither is cultural sound, such as music. The values that are to be protected are altruistic, not controversial and should be benign. They are all experientially anthropocentric: sleep at night, conversation, recreational activities and, now, extending out to include “learning environments” and “human tranquillity”. However, if a noise control exists explicitly for music, it should balance the social and cultural value of music against other environmental values (sic). As the proposals don’t attribute value to cultural sound (i.e. music) as a valid component of the soundscape, it logically extends that the regulatory ideal is a silent world. Not valuing music is at odds with the 97 per cent of Australians who listen to music, the 50 per cent who annually attend a live music gig every year or the one-in-seven who play music and who clearly do value it. This demonstrates the disconnect between the bureaucracy and the expectations of nearly the entire Australian population, and is contrary to the Victorian government’s own acknowledgement of the social importance of live music in the Live Music Accord (2010), which states that: “Live music makes a significant contribution to the cultural well-being of Victorians and makes a significant economic contribution to Victoria.” This acknowledgment of “cultural well-being” is by definition an acknowledgment of the experience of human health and therefore consistent with the ‘purpose’ of the Environmental Protection Amendment Act. Nevertheless, what those at the EPA are struggling to get their heads around, is that sound is not like a pollutant spill, like petroleum in a wetland. Noise cannot be characterised solely by its materiality (decibels, hertz, etc). Sound leaves no residue. It only exists in the present. It is the same material if created by nature, machine or human. Sound can be both a cultural product (music, art) or noise, and its classification as noise is exclusively a cognitive function of the human experience. Whether cultural sound, such as live and recorded music, is considered of value or just noise, is a value judgement by the person perceiving the sound in the context of the soundscape and their experience. Whether cultural sound, such as live and recorded music, is considered of value or just noise, is a value judgement by the person perceiving the sound in the context of the soundscape and their experience. It is the responsibility of different segments of the community to share the burden of protection of noise-sensitive uses from cultural sound sources, as it is the case for sharing its cultural and economic benefits. The problem with the proposed Environment Protection Regulations is not with the sound levels per se, but with the spatial and social context in which they are deployed. In practice, if implemented, the proposed Victorian Environment Protection Regulations for Noise are going to mean that music festivals with on-site camping or with camping grounds in close proximity will no longer be viable. Neither will any stage set up in an urban setting, as the live music event will no longer meet the strict and inflexible nature of the EPA sound level requirements. Almost all festivals will struggle with compliance under the EPA’s new regime rendering any festival site proximate to a campground or even a “tourist facility” (whatever that entails) no longer fit for purpose. The irony being that these campgrounds would be patronised by festival-goers. Any outdoors live music event greater than five hours long and held in an urban setting, will need a permit issued by the EPA and will struggle to meet the strict externally measured sound level requirements. Community, council and other stakeholder opinions are not considered in the permit process in achieving any form of festival operational balance. Well-established music festivals including Meredith, Golden Plains, Queenscliff, Boogie, Evie, St Kilda and Port Fairy will all be adversely affected as will many Victorian country events that stage live music, including country rodeos, shows and ute musters. Street festivals under threat will include the Sydney Road Festival and the Johnston Street Latin/Hispanic Fiesta as will many St Kilda foreshore events. This list is far from extensive. Like the small live music venues that incubate our musicians, music festivals provide the opportunity for emerging and experienced artists to actually earn a living. With recording no longer providing artists with revenues of any significance, live performance provides the only economic possibilities to sustain their careers — specifically, artist fees and copyright revenues flowing from large audience performances and the opportunity to sell merchandise. Like the small live music venues that incubate our musicians, music festivals provide the opportunity for emerging and experienced artists to actually earn a living. In terms of indoor live music venues, the inclusion of learning environments to be protected will mean that many live music venues will suddenly become non-compliant on July 1, 2020. The sound measurement point used for compliance assessment will suddenly move to outside the proximate school or childcare centre even though they operate at very different and non-overlapping times. This creates a legal conflict where no actual problem exists. The new protected ‘sensitive uses’ are not covered by the ‘Agent of Change’ principle, which offers protection to live music venues that pre-date new developments. This means that land uses such as childcare facilities could be weaponised by developers through this loophole, forcing live music venues near their proposed residential developments to close, due to the resultant instant change in the venues’ legal noise compliance requirements (not to mention the subsequent works costs for venues suddenly forced to be legally compliant). By contrast, in other legal areas and jurisdictions, the favouring of some sensitive land-use acoustic protections over music-related cultural land uses has resulted in a number of policy responses and urban planning solutions that spread soundproofing responsibility across the community. These include the ‘Agent of change principle’, and different development rules and sound measurement methods applied within specific entertainment precincts, such as Brisbane’s Fortitude Valley, and now the Gold Coast (Southport), Nambour/Maroochydore, Perth’s inner-city suburb of Northbridge, Wollongong and Canberra. The blinkered, absolutist nature of the draft regulation’s interface with the Victoria Planning Scheme is an arcane kludge. It would require document searches of council archives to establish measurement points, and to attribute the validity of soundproofing in the measured sound transmission path of an acoustic assessment. The blinkered, absolutist nature of the draft regulation’s interface with the Victoria Planning Scheme is an arcane kludge. As pointed out in Music Victoria’s recent submission to the EPA, if implemented, these proposed noise regulations are doomed to fail! This proposal has the potential to take down with it some of our much-loved live music-based cultural institutions. This is all due to a lack of holistic regulatory design across the silos of government – the EPA and Department of Environment, Land, Water and Planning. Directed by their deleterious illusions of altruism, the EPA has put the blinkers on, gone head down and bum up, to implement their regulations with scant regard for our musical culture and the economic value of the music industry. The slow occlusion of our musical culture is gradually strangling it. Mechanisms such as the Victorian Charter of Human Rights and Responsibilities Act are only aspirational and hold no robust review mechanisms to push back effectively against ill-conceived regulation. Serious consideration needs to be given to how this slow-moving tsunami of regulation renders our culture void, because the risk-averse and paternalistic government considers live music to be dangerous, a risk to public safety, or now incompatible with human tranquillity. Victoria is held up as the model for regulatory reform nationally as it has a well-established Live Music Round Table with carriage of regulatory reform. It’s been in existence for eight years. However, the bureaucratic culture within government departments has meant that pan-government reform has been resisted. The round table’s record of achievements could and should be better. I should know, I’m on it. Certainly, the example in NSW, where the Liquor Act regulations were ‘jerry-rigged’ to attempt to address six overdose drug deaths at music festivals, is a master class in policy dysfunction. This predictably led to mass public street protests with the music industry pleading with the NSW government to work co-operatively to address the dangers of illicit drug use. The NSW Premier’s righteous obstinance in the face of universal opposition has now seen the NSW parliament disallow the government’s regulation and impose a Music Festival Roundtable on a humiliated NSW Customer Service Minister and Premier Gladys Berejiklian. The roundtable will comprise equal government and music industry membership, co-chairing between industry and government and precise public reporting standards, and will see one of four annual meetings held at a music festival. Let’s hope that this opportunity is the circuit-breaker needed and that evidence-based policy will now prevail with the recent NSW Coroner’s recommendations able to influence the regulatory agenda. Yet again, government-projected fears and populist bias are expressed in ill-conceived laws and regulations. Independent of where one stands on these issues, there is no doubt that our culture and its artistic practices are the collateral damage in the larger debates around liquor and drugs policy, land use, the building code and, now, the proposed Victorian environment protection laws. Cynically perhaps, the Sydney Morning Herald’s ridiculous headline from earlier this year – “Up to 90% of music fans use drugs” – could become the prophecy for the new Eutopia if art, music and culture are not valued and considered in all aspects of the development of Australian governmental policy, law and regulation. All aspects of government need to consider the exigencies of Australian culture, art, music and its practitioners, to ensure that they can truly thrive and enrich our human experience. Facebook Twitter Pinterest LinkedIn Email About the Author: Jon Perring The operator of iconic Melbourne Live Music Venues including The Tote Hotel, Bar Open, Pony The Melbourne Spanish Club, Yah Yah's and more. He was a central figure in rolling back the ill-conceived liquor licensing regulations that threatened live music in Victoria in 2010 and is a member of the Victorian State Government's Live Music Roundtable. He has written papers on liquor licensing regulation and live music, cultural land-use policy, a review of The Agent of Change planning policy and is also a musician.