Labor Senators support the objective of the Bill; to protect First Nations artists and cultural expressions from exploitation.
Labor Senators note that issues of inauthentic art and craft, and exploitation of First Nations cultural expressions have been comprehensively examined by the House of Representatives Standing Committee on Indigenous Affairs (HRSCIA). The HRSCIA published, in 2018, the ‘Report on the impact of inauthentic art and craft in the style of First Nations peoples’. The Government has not responded to this report.
Labor Senators call on the Government to respond to the 2018 HRSCIA report as a matter of urgency.
Labor Senators call on the Government to work with First Nations people on a comprehensive legislative framework to prevent inauthentic art and craft, consistent with the recommendations of the HRSCIA report. In light of consultation, Labor Senators also call on the Government to implement the HRSCIA recommendations, including by amending the Bill where required.
Overview from Labor Senators
On 4 July 2019, the Senate referred the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019 to the Environment and Communications Legislation Committee for inquiry and report.
As stated in the Explanatory Memorandum, the Bill amends the Competition and Consumer Act 2010 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.
This Bill follows a series of inquiries and judicial decisions into the proliferation of inauthentic First Nations art and craft, namely:
2018 HRSCIA ‘Report on the impact of inauthentic art and craft in the style of First Nations peoples’;
Federal court case: Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3)  FCA 996; and
2007 Senate Environment, Communications, Information Technology and the Arts Committee report ‘Indigenous Art-Securing the Future’.
The HRSCIA Report made the following recommendations, as summarised in the Chair’s Foreword of the report:
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.
Evidence considered by the committee overwhelmingly supported the Bill’s overarching intentions.
Evidence considered by the committee also supported a comprehensive legislative response from the Commonwealth, with proper engagement with stakeholders in its development and implementation.
Deficiencies in the Bill
While firmly supporting the objectives of the Bill, and calling on the Government to support legislation to address those objectives, Labor Senators note that there are some concerns with the Bill as drafted.
Use of the Australian Consumer Law
Labor Senators note that the Australian Consumer Law is designed as a broad, economy-wide framework for regulating general consumer transactions.
The Australian Competition and Consumer Commission (ACCC) noted in its submission that:
The [Competition and Consumer Act] (containing the Australian Consumer Law) is an economy-wide law of general application that is designed and intended to address the economic harms of anti-competitive and unfair trading. The ACL focuses on fair trading and consumer production and is intended to provide a baseline standard for all traders across all products. As a result, it is not designed or suited to adequately and holistically safeguard Indigenous Australian culture.
Many submitters raised concerns about the appropriateness of the Australian Consumer Law as a mechanism for protecting First Nations cultural and sacred materials, and suggested that standalone legislation could be better. In particular, the Aboriginal Art Association noted that:
…it would be inappropriate…for deeply cultural matters to be dealt with under consumer legislation. This is not about consumption; this is about people's culture…
It is clear that the misuse and appropriation of First Nations cultural designs, arts, and practices is a matter of deep concern for both Australian consumers and First Nations people.
The Government should consider whether the amendment of the Competition and Consumer Act 2010 alone could adequately address potential consumer harms from the sale of inauthentic indigenous art, in the context of the need for a broader legislative framework to protect First Nations cultural practices as recommended by the HRSCIA.
Strict liability criminal offences
Labor Senators support the comments made by the Senate Scrutiny of Bills Committee, indicating that no justification has been provided for the use of strict liability offences in the bill:
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.
Any imposition of strict liability in Commonwealth legislation should be treated with the seriousness it deserves.
In developing a framework to prevent the sale of inauthentic indigenous art, the Government should carefully consider if and when strict liability offences are justified.
Labor Senators note the concerns raised by a number of submitters in relation to definitions used in the Bill.
In particular, Creative Economy questioned whether the definition of “misuse” in the Bill could impact the cultural authority of First Nations Australians over their own ceremonial and cultural materials:
Currently there are ceremonies and items used for ceremony, for example, dance headdresses, dance boards, etc. and photographs and films of ceremony that Aboriginal and Torres Strait Islander peoples and communities offer for trade and commerce with institutions, event producers, collectors, etc.
This is because not all ceremony and Indigenous cultural expressions related to ceremonial purposes are sacred. It is appropriate that the use, trade or commerce, supply is vested in the cultural authority of the relevant Aboriginal and Torres Strait Islander peoples and communities.
Professor Jon Altman of the Australian National University also pointed out that authenticity of First Nations cultural items craft products is a complex issue.
In developing a framework to prevent the sale of inauthentic First Nations art, craft and cultural expressions, the Government should consult extensively to ensure that they use appropriate definitions of misuse, authenticity, and indigeneity.
Capacity of the ACCC
Labor Senators note the testimony of the ACCC, indicating that it currently does not have the organisational capacity to implement the Bill. Mr Greiss of the ACCC noted that:
Turning my mind to the drafting of guidelines that would inform our actions here, I think we would struggle to find the right skills sets in the organisation as they are to be able to give a sense of how we would approach allegations of exploitation of cultural expressions…[This bill could take] us into a new area, which is, I suppose, why I said that we would need the resourcing to take something like this on.
Labor Senators note that the continuing prevalence of inauthentic First Nations art, craft and cultural expressions is having a profound and harmful effect on First Nations culture and the potential income that First Nations people and communities are able to derive.
This misappropriation of culture is unacceptable, and we express our firm commitment to supporting the rights of First Nations artists and communities.
This issue covers nuanced and complex areas of law and demands a comprehensive legislative response with proper stakeholder engagement from design to implementation.
Senator Malarndirri McCarthySenator Deborah O'Neill
Participating memberParticipating member
Senator Marielle SmithSenator Anne Urquhart
Committee memberParticipating member
Senator Nita Green