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On 4 July 2019, the Senate referred the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019 (the bill) to the Environment and Communications Legislation Committee (the committee) for inquiry and report by 5 December 2019.
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The bill was introduced on 12 February 2019. The Senate Standing Committee for Selection of Bills Report No. 1 of 2019 (14 February 2019) initially deferred consideration of the bill.
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With the end of the 45th Parliament, the bill lapsed. It was subsequently re-introduced at the beginning of the 46th Parliament, on 4 July 2019. On the same day, the Selection of Bills Report No. 2 of 2019 was tabled, in which the bill was referred to this committee for inquiry and report by 5 December 2019.
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On 25 November 2019, the Senate granted an extension of time to report to 26 March 2019.
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The Selection of Bills Committee recommended that the bill be referred to the committee in order to seek the views on the potential impacts of the bill on the livelihoods of relevant stakeholders, as well as from experts in the arts and legal sectors.
Purpose of the bill
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The Explanatory Memorandum states that the bill would amend the Competition and Consumer Act 2010 (the Act) to:
…prevent the proliferation of fake Aboriginal and Torres Strait Islander art and art products. It makes it an offence to supply or offer commercial goods to a consumer that include Indigenous cultural expression unless it is supplied by, or in accordance with a transparent arrangement with an Indigenous artist or relevant Indigenous community.
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The Explanatory Memorandum provides a brief outline of the purpose and intention of the bill:
The Bill proposes to respond to the growing market in fake art and merchandise. These commercially-produced goods, mostly aimed at the tourist market, are often made from non-traditional materials and feature inauthentic and culturally inappropriate designs.
This trade misappropriates Aboriginal and Torres Strait Islander culture, undermining the role of traditional communities and artists. It denies Aboriginal and Torres Strait Islander artists economic and other opportunities as well as deceiving and misleading buyers.
Background
House of Representatives Inquiry
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In 2018, the House of Representatives Standing Committee on Indigenous Affairs (HRSCIA) conducted an inquiry into the 'growing presence of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products and merchandise for sale across Australia'. Its terms of reference stated that the inquiry would consider:
the definition of authentic art and craft products and merchandise;
current laws and licensing arrangements for the production, distribution, selling and reselling of authentic Aboriginal and Torres Strait Islander art and craft products and merchandise;
an examination of the prevalence of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products and merchandise in the market;
options to promote the authentic products for the benefit of artists and consumers; and
options to restrict the prevalence of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products and merchandise in the market.
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The HRSCIA found that there has been a clear growth in the availability of inauthentic First Nations art and craft at retail in Australia, and that around '80 [per cent] or more' of Indigenous-style souvenir products on sale in Australian gift shops was inauthentic, having no genuine connections to Indigenous cultures in production, meaning, or profits. Three key reasons were provided for this situation:
The first is the interest of many tourists in First Nations cultures and souvenirs. The second is that selling imitation First Nations products is profitable. The third is the lack of understanding among non-Indigenous people of the difference between authentic and inauthentic First Nations art and craft items, as well as the cultural significance of artworks and artefacts.
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In looking to assess the scale of the problem posed by inauthentic Indigenous products, the HRSCIA noted that a significant proportion of the tourism market engages in Indigenous cultural tourism activities and purchases Indigenous arts, crafts or souvenirs:
Analysis by Tourism Research Australia for the 2017–18 financial year indicates that 978 000 international visitors and 715 000 overnight domestic trips included an Indigenous tourism activity. This includes art, craft and cultural displays, visiting an Aboriginal site or community, or attending an Aboriginal performance. These visitors collectively spent $8.4 billion during these trips, although the proportion that can be attributed to Indigenous tourism in not known. Notably, 198 000 international visitors in that year purchased Indigenous art, crafts or souvenirs.
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However, the HRSCIA inquiry noted there is lack of reliable data on the matter, which made it difficult to reform policy and legislation.
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The HRSCIA report also noted the importance of art to the cultural identity, history, and sense of identity and belonging of Indigenous Australians. It noted that many Indigenous Australians found the production and availability of inauthentic art offensive and profoundly disrespectful, and perceived that it compromised the cultural ownership and economic opportunities for Indigenous communities.
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The HRSCIA made a number of recommendations, which were summarised in the Chair's Foreword of the report as follows:
That the Productivity Commission conducts a comprehensive structural analysis of the entire market for First Nations art and craft. It will be difficult for policymakers to be effective in the future without this information.
That the Indigenous Art Code be properly funded and a review take place after two years to determine whether this voluntary code of conduct is being effective or whether a mandatory system should be considered.
That a separate arm of the existing Indigenous Business Sector Strategy be created for First Nations art centres to build their capacity.
That an Information Standard be developed for authentic First Nations art and crafts.
That an information guide on authentic art and crafts be developed as a short video presentation to all passengers arriving into Australia.
That a Certification Trade Mark scheme for authentic First Nations art and crafts be developed by IP Australia in consultation with all relevant stakeholders.
That funding be made available through the Indigenous Visual Arts Industry Support program to assist artists and art centres affected by carpetbagging…[and]
That a consultation process be initiated to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions.
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Regarding the HRSCIA's findings on the development of stand-alone legislation, the full recommendation of the report stated:
The committee recommends that the Australian Government begins a consultation process to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions.
The committee is mindful of the current Australia Council inquiry into the feasibility of a National Indigenous Art and Cultural Authority. The committee fully supports the establishment of this body and recommends that it be part of the consultation process.
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The following rationale was provided in support of the recommendation proposing the development of stand-alone legislation, rather than existing Australian Consumer Law (ACL) or copyright frameworks:
Neither the ACL nor copyright law were designed to protect First Nations cultural expressions, and therefore each is inadequate to do so. The ACL prevents inauthentic products from being passed off as genuine under provisions that prevent businesses from misleading their customers. Current copyright law provides any artist, whether Indigenous or not, with legal protection against reproduction without permission.
The situation regarding inauthentic art is, however, far more complex and nuanced than this. In the first instance, the ACL cannot deal with issues of inauthentic Indigenous products, while the Copyright Act is not designed to recognise the eternal and communal nature of Indigenous cultural expressions, making it inadequate to deal with the misappropriation of culture. Stand-alone legislation may be the best long-term option to resolve this complex issue.
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As at 15 April 2020, the Government had not tabled a response to the HRSCIA report.
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A media release made by the Hon Paul Fletcher MP, the Minister for Communications, Cyber Safety and the Arts, and the Hon Ken Wyatt AM MP, Minister for Indigenous Australians, on 2 March 2020 stated that: 'The Government is looking forward to tabling its response to [the HRSCIA] Report shortly'.
2007 Senate inquiry into Indigenous Art
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In 2007, the Senate Environment, Communications, Information Technology and the Arts Committee tabled a report Indigenous Art–Securing the Future. That inquiry considered the policy challenges of the Indigenous arts and craft sector.
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The inquiry's report made 29 recommendations, including 10 'key recommendations'. These went to broad reform of the Indigenous Art sector, including recommendations for infrastructure, program funding, codes of practice and legislation to support the sector.
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One key recommendation suggested that the Australian Competition and Consumer Commission (ACCC) should be better resourced to oversee industry practice. The context for this recommendation included, but was not limited to, consideration of the significant challenge of the importation of non-authenic Indigenous-style art and craft products:
…as a matter of priority, the ACCC be funded to increase its scrutiny of the Indigenous art industry, including conducting educational programs for consumers as well as investigation activities, with a goal of increasing successful prosecutions of illegal practices in the industry.
Federal court case: ACCC vs Birubi Art
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In March 2018, the ACCC commenced Federal Court action against a wholesaler of Aboriginal art products and Australiana souvenirs, Birubi Art Pty Ltd (Birubi). The case alleged that Birubi had made 'false or misleading claims that some of its products were made in Australia and/or that Aboriginal people had made or hand painted them, when in fact they were made in Indonesia'. This included Indigenous cultural objects, such as boomerangs, bullroarers and digeridoos, represented as or decorated with the words 'hand painted', 'handcrafted', 'Aboriginal Art', and 'Australia'.
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ACCC Commissioner Sarah Court outlined the nature of the case and its implications for both consumers and producers of Indigenous art as follows:
We allege that Birubi's conduct is damaging as it is likely to mislead consumers into thinking they are buying genuine handmade Aboriginal art when they are not. This has the potential to undermine the integrity of Aboriginal art and negatively impact Indigenous artists, including by undervaluing their authentic works…
We allege that over 18,000 of these Birubi products were sold to retail shops in key tourist spots around the country. In the lead up to the Commonwealth Games in Australia next month [April 2018], with tens of thousands of tourists visiting Australia, this action by the ACCC is a timely reminder to traders to ensure that products they are selling as Indigenous cultural objects or art are authentic.
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On 18 June 2018, Channel 9's 60 Minutes broadcast 'Fake News', an investigation of Birubi Art, including outlining the Federal Court case. This included footage taken showing the manufacture of inauthentic Indigenous art products in Balinese factories, which were subsequently sold as hand-made products by Indigenous Australians.
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On 26 June 2019, the Federal Court ordered Birubi (in liquidation) to pay $2.3 million for the breaches it had made to ACL by making false or misleading representations about products it sold. In its judgment, the court noted the economic, social and cultural harms that such misrepresentations could have for Indigenous Australians.
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An ACCC press release on the outcome of the case provided a number of comments by the ACCC Commissioner, Ms Court, including that:
This penalty sends a strong message to anyone considering selling fake Australian Aboriginal style art as the genuine article…
Birubi's actions were extremely serious. Not only did they mislead consumers, they were liable to cause offence and distress to Australian Aboriginal people… Engagement in the Indigenous Australian art industry is extremely important to a significant number of Australian Aboriginal people, especially those in remote regions… The ACCC took this action because the misleading conduct has the potential to undermine the integrity of the industry and reduce opportunities for Australian Aboriginal peoples.
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Ms Court also stated that the ACCC would be:
…monitoring traders of Indigenous Australian style art and souvenirs to ensure confidence in the Indigenous Australian art industry. We will take action against those who mislead consumers about the nature of their products.
Recent Commonwealth initiatives for the Indigenous art sector
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The Commonwealth has recently announced several initiatives to strengthen the Indigenous art sector, and move to reform relevant policy and legal frameworks.
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On 2 March 2020, Minister Fletcher, Minister for the Arts, and Minister Wyatt, Minister for Indigenous Australians, announced a two-day roundtable to consult with Indigenous arts stakeholders on 'ways to further support Australia’s meaningful and prosperous Indigenous art sector, and to promote ethical trading'. In announcing this roundtable, Minister Fletcher said:
The quality of Australian Indigenous Art is world renowned and one of my key priorities as Minister for the Arts is to grow this hugely successful market. I want to help to support the cultural and economic interests of Indigenous artists, and provide consumers with increased confidence that they are purchasing ethically sourced Indigenous art that benefits the artists and their communities.
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Earlier, in August 2019, Minister Fletcher announced $20.8 million to support the Indigenous visual arts sector. This included funding to support art fairs, service organisations and regional hubs 'providing new opportunities for Aboriginal and Torres Strait Islander artists, most living in remote communities'.
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As noted above, the Government has indicated that the response to the recommendations made by the 2018 HRSCIA report is imminent.
Overview of the bill's provisions
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The bill is intended 'to prevent the proliferation of fake Aboriginal and Torres Strait Islander art and art products'. To do this, it would amend the Act in a number of ways, including through provisions:
Setting out definitions of 'Indigenous artist, Indigenous ceremonial or sacred artefact, Indigenous cultural artefact and Indigenous cultural expression';
Changing the definition of 'small business contract' to include Indigenous cultural expressions;
Inserting a definition of Indigenous community; and
Inserting an explanation of 'what constitutes the misuse of Indigenous cultural expression and sett[ing] out what constitutes an offence, in relation to supplying goods that include an Indigenous cultural expression, the relevant penalties and the exceptions to the offence…'
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The relevant provisions are discussed in detail in the following chapter.
Human rights and comment by the Scrutiny of Bills Committee
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The Explanatory Memorandum states that the bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
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The Explanatory Memorandum also notes that the bill promotes the legal rights of Aboriginal and Torres Strait Islander artists and communities.
Comment by the Scrutiny of Bills Committee
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The Senate Scrutiny of Bills Committee drew the Senate's attention to two aspects of the bill in its Scrutiny Digest 2 of 2019: provisions that would reverse the evidential burden of proof; and concerns regarding the application of strict liability.
Reversal of the evidential burden of proof
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Some provisions of the bill seek to reverse the evidential burden of proof relating to a person trading, supplying or offering to supply goods including Indigenous cultural expressions. The Scrutiny of Bills Committee report outlined what implications should be considered in these proposed provisions:
At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty.
Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.
While in these instances the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.
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The Scrutiny of Bills Committee noted that the Explanatory Memorandum did not provide appropriate justification, and drew its concerns to the attention of the Senate.
Strict liability
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The Scrutiny of Bills Committee noted that there was no justification offered in the bill's Explanatory Memorandum for the proposed amendment that would make the offence one of strict liability. Its report stated that:
The bill seeks to insert proposed section 50AB into the Competition and Consumer Act 2010. Proposed subsection 50AB(1) makes it an offence to supply, or offer to supply, a good to a person that includes an Indigenous cultural expression or to create, provide or rely on a document for the purposes of subsection 50A(3) that the person knows is false. Proposed subsection 50AB(6) makes the offence in subsection 50AB(1) one of strict liability. The explanatory memorandum provides no justification as to why it is proposed to make the offence one of strict liability.
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On the importance of any imposition of strict liability, the Scrutiny of Bills Committee argued:
In a criminal law offence the proof of fault is usually a basic requirement. However, offences of strict liability remove the fault (mental) element that would otherwise apply. The committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
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The Scrutiny of Bills Committee noted that the Explanatory Memorandum did not provide appropriate justification for the introduction of strict liability, and drew its concerns to the attention of the Senate.
Conduct of the inquiry
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Details of the inquiry were advertised on the committee's website, including a call for submissions to be received by 14 August 2019. The committee also wrote to some stakeholders directly inviting them to make submissions.
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The committee received 15 submissions. These submissions are listed at Appendix 1 of this report, and available in full on the committee's website.
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The committee held a public hearing in Melbourne on 6 November 2019. A complete list of witnesses who gave evidence at the hearing is at Appendix 2.
Structure of this report
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This report consists of two chapters:
This chapter, which provides a brief background and overview of the bill, as well as the administrative details of the inquiry.
Chapter 2, which sets out the provisions of the bill in greater detail, and discusses support for and concerns raised by submitters about the proposed amendments. It also sets out the committee's view and recommendations on the bill.
Acknowledgements
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The committee thanks all organisations and individuals that participated in this inquiry by making submissions or giving evidence at the public hearing.