This chapter outlines the key issues raised in the evidence received by the committee, before setting out the committee's views and recommendations.
It covers the following matters:
the scale of the problem of inauthentic Indigenous art, particularly in the souvenir market, and its negative effects for artists, the Indigenous community, the business sector, and consumers;
support for the bill expressed in evidence; and
concerns raised about provisions of the bill, which clustered in three areas:
the timing and scope of the bill;
criticisms of the bill, including the limits of consumer law and copyright frameworks, and problematic definitions it contains; and
potential difficulties in the implementation and resourcing of the bill's provisions.
Scale of the problem of inauthentic Indigenous art products
The joint submission made by the Arts Law Centre of Australia, Indigenous Art Code and the Copyright Agency (ALCA, IAC and CA) outlined the widespread availability of inauthentic products available in Australia:
There is a significant and growing market in Australia for art and craft products which have the 'look and feel' of Aboriginal and Torres Strait Islander art but have no connection to Aboriginal and Torres Strait Islander communities. These goods are produced commercially and mostly aimed at the tourist market, often being made from non-traditional materials and featuring inauthentic and culturally inappropriate designs. We estimate that up to 80% of items being sold as legitimate Aboriginal and Torres Strait Islander artworks and souvenirs in tourist shops and some galleries around Australia are inauthentic.
The Australian Competition and Consumer Commission (ACCC) concurred with this estimate, suggesting its investigations in the Birubi case found that 'quite a large proportion of that segment of the [souvenir] market falls into that inauthentic category'.
These observations roughly correlate to the findings of the House of Representatives Standing Committee on Indigenous Affairs (HRSCIA) inquiry, which concluded '80 per cent or more' of Indigenous 'style' souvenirs at retail were inauthentic.
However, Professor Jon Altman cautioned that existing estimates were not based on reliable data. His submission to the HRSCIA inquiry, which he also provided to this inquiry, posed five questions that need further examination by Government in developing relevant policy and legislation:
What is the size of the Indigenous visual arts sector?
What proportion is Indigenous art and crafts products and merchandise as distinct to fine art, bearing in mind that the boundary between the two categories is often blurred?
Of Indigenous arts and crafts products and merchandise what proportion might be deemed to be ‘authentic’ and what proportion ‘inauthentic’?
Of Indigenous arts and crafts products and merchandise, what proportions of authentic/inauthentic is imported/domestically manufactured?
Of Indigenous arts and crafts products and merchandise, what proportion is manufactured under legitimate licencing arrangements with Indigenous art organisations or individuals and what proportion is not?
Professor Altman concluded:
Answering these questions is a difficult task that the Australian government and numerous stakeholders have grappled with for decades. Currently there seems to be no accurate estimate of the size in financial (final sales) terms of the entire sector, let alone the component parts...
The committee notes that the HRSCIA report recognises both the significant scale of the problem of inauthentic Indigenous art and craft products, as well as the deficiency of current data on the matter.
Effects on Indigenous artists, communities and businesses
A number of poor outcomes for Indigenous artists, businesses and communities that result from the proliferation of inauthentic Indigenous art products were noted in evidence. The submission made by ALCA, IAC and CA summed these up as follows:
The trade in inauthentic Aboriginal and Torres Strait Islander art:
misappropriates and exploits Aboriginal and Torres Strait Islander culture;
denies Aboriginal and Torres Strait Islander artists economic and other opportunities;
misleads and deceives consumers regarding the authenticity of Aboriginal and Torres Strait Islander art products they purchase; and
disadvantages Australian businesses who take an ethical and culturally empathetic approach to their work.
This evidence was supported by many submitters to this inquiry, and also concurs with the findings of previous inquiries as noted in chapter 1 of this report.
Support for the bill
Evidence considered by the committee overwhelmingly supported the bill's broad intention to address the presence of inauthentic Indigenous art in the marketplace, and to protect the rights of Indigenous artists and communities.
Commonwealth measures addressing inauthentic Indigenous products
Evidence broadly supported the Commonwealth introducing legislative measures to address the issue of fake souvenirs. It was argued by several stakeholders that the bill could address these issues immediately, even if standalone legislation would be required over the long-term to protect more complex forms of Indigenous cultural expression.
This was comprehensively set out in the joint submission made by ALCA, IAC and CA, which commented:
…given the damage caused by inauthentic Aboriginal and Torres Strait Islander art and craft product is both current and widespread, we consider it imperative to expedite legislative action within an existing legislative framework, while standalone legislation is developed as a long-term solution. We consider this would be best achieved through amendments to the ACL that prohibit the supply of inauthentic Aboriginal and Torres Strait Islander art and craft product.
The Aboriginal Art Association of Australia (AAAA) supported the framework proposed by the bill regarding the souvenir market. It noted that its Board and Aboriginal Cultural Council, which drafted its submission, were both 'wholly supportive of the efforts to enshrine in legislation a solution to the matter of inauthentic art and souvenirs'. Mr Geoffrey Henderson, the President of the AAAA, told the committee that this issue of inauthentic material in the souvenir sector had 'furious agreement across the industry, and from people outside the sector'.
ALCA, IAC and CA noted a number of benefits from an 'outright prohibition' on inauthentic art being added to Australian Consumer Law (ACL), which they argued would:
give rise to a clear statement of the law regarding the boundaries of acceptable and unacceptable conduct;
clearly address the costs associated with the misappropriation of Aboriginal and Torres Strait Islander culture and ensures that Aboriginal and Torres Strait Islander artists and communities can properly commercialise their artwork; and
address the issue of consumers being misled into purchasing inauthentic Aboriginal and Torres Strait Islander products.
Even the Australian Copyright Council welcomed the introduction of the bill due to the current limitations of the Australian copyright framework:
The historical limits of the Australian Copyright Act in protecting Indigenous cultural expression mean that the bill is a necessary part of a framework to protect and encourage the continuing tradition of Indigenous artistic works, which play a significant role in the cultural and economic landscape of creative Australia.
Making it an offence to supply or offer commercial goods that include Indigenous cultural expression as defined, unless supplied by or in accordance with a transparent arrangement with an Indigenous artist or relevant community group, will go a long way towards protecting the sacred ideas, methods and styles of Indigenous people while, importantly, promoting the voice of the group rather than the individual when it comes to creative and cultural expression. The Copyright Act 1968 is currently limited in its effect in doing this.
Appropriateness of Australian Consumer Law
ALCA, IAC and CA set out an argument for the appropriateness of ACL to tackle the problem of inauthentic Indigenous cultural products, as:
…the prohibition is fundamentally concerned with fair trading and with preventing consumers being misled as to the authenticity of Aboriginal and Torres Strait Islander art. Further, amending the ACL would provide an effective legal framework for implementing the prohibition in a timely manner–since responsibility for enforcing the prohibition would fall to the ACCC and be subject to the existing remedies under the ACL.
A number of witnesses and submitters highlighted the importance of accurate labelling to ensure the integrity of any new prohibitions. Professor Altman commented that, even if he thought that overall the bill was flawed, that ACL could be amended to address some of the existing problem of inauthentic Indigenous products:
Australian Consumer Law requires most products—especially food, beverages, clothing and consumer durables—to be accurately labelled. So, one might ask, why not art—especially manufactured tourist art? Australian Consumer Law could make it illegal to either inaccurately label Aboriginal art, which is sort of what the Birubi case was about, in relation to misleading and deceptive conduct—and the Australian Consumer Law and the ACCC showed that that could be prosecuted—or it could make it illegal for wholesalers and retailers who sell inaccurately labelled product to be prosecuted, which would be a lot more difficult.
Improvement on previous legislative proposal before parliament
Some evidence noted that the bill has similarities to the private member's bill introduced by the Hon Bob Katter MP in 2017 (Katter bill).
However, Professor Altman noted that the current bill had substantially addressed the Katter bill's failure to comply with the Commonwealth definition of indigeneity.
In addition, the IAC commented that the current bill 'appears' to have been amended to address the Senate Selection of Bills Committee's criticisms that Katter bill was 'overly broad' in its prohibitions.
Criticisms of bill
A number of concerns about the provisions of the bill were raised in evidence, which will be discussed in turn.
Timing of the bill
Some witnesses and submitters argued that the bill was premature for three reasons. First, it was noted that the Commonwealth has not yet responded to the findings of the HRSCIA. Second, some stakeholders suggested that the full effects of the ACCC's case against Birubi have not yet become apparent. Lastly, some submitters argued that the Commonwealth should undertake further consultation with Indigenous stakeholders before putting legislation before Parliament.
For example, Professor Altman argued:
Rather than propose new law just three months after the publication of the HRSCIA report on the impact of inauthentic art, it seems preferable to await the government's response to the eight recommendations in this report; and to await an analysis of how the wide range of stakeholders who constitute the Indigenous visual arts sector respond to the recent court orders (dated 28 June 2019) in ACCC v Birubi Art Pty Ltd (FCA 996).
Several organisations highlighted the need for extensive Government consultation with Indigenous stakeholders before developing a new legislative approach. The AAAA noted that any discussions 'must involve broad community consultation as the issues are incredibly complex and multi-layered'.
The ACCC advised that it:
…considers that any consultation on developing standalone legislation would be a complex and long-term project, requiring significant engagement and consultation with stakeholders.
We note that the Australia Council is currently facilitating a national consultation process to assist with the development of a National Indigenous Arts and Culture Authority (NIACA). The consultation process will feed into a national forum on First Nations arts and culture which the Australia Council is planning for November 2019. Using this process to engage on how best to address inauthentic Indigenous Australian art and craft products, including through developing stand-alone legislation, would avoid duplication and the ACCC considers that this would be a preferred approach to deliver the public policy objectives of supporting and safeguarding Indigenous Australian culture.
Concerns expressed regarding the bill's scope and definitions
Stakeholders expressed concerns regarding the scope of the bill, and highlighted some problematic definitions contained in its provisions.
The broad scope of the bill
Some stakeholders argued that bill was too broad. In particular, it was argued that protections for Indigenous cultural and sacred material should be addressed through stand-alone legislation rather than amendments to existing frameworks.
For example, Mr Henderson of the AAAA, commented at a hearing that the bill was 'trying to fix too much', and that it was 'commendable, but suffering from overreach'. In particular, he suggested that cultural and sacred objects should not be dealt with in the bill's proposed amendment of consumer law:
…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…
Mr Harold Gallasch, a gallery owner with several decades of experience in the Indigenous art market, commented:
It is inappropriate to include a clause on the protection of sensitive cultural heritage in a Bill that is essentially about retail transactions.
ALCA, IAC and CA also suggested that standalone legislation was a more appropriate mechanism to protect cultural, ceremonial and sacred Indigenous artefacts, and recommended deleting relevant provisions in the bill.
Mr Henderson of the AAAA supported the establishment of an independent body to administer Indigenous arts and cultural matters:
We think we should be looking to an appropriate body, for example, to lead a discussion on some of these things…probably you're all aware that a national Indigenous arts and cultural authority is being proposed at the moment. Maybe that's the right forum for some of these more difficult and nuanced issues to go before…
The lack of a design focus
Dr Meghan Kelly, Mr Jefa Greenaway and Dr Russell Kennedy submitted that the bill should be 'broadened to include design', as:
The current proposal does not allow for new interpretations of Indigenous knowledge and, we believe, defaults to traditional tropes of an artefact. Indigenous cultural expression is manifested in a myriad of ways. The singular focus on ‘art’ is a limited means to fully embrace the changing dynamics of how Indigenous creativity has constantly adapted and evolved over many millenia.
The limits of existing consumer and copyright frameworks
Mr Rami Greiss of the ACCC suggested that consumer law is currently insufficiently equipped to address the problem of inauthentic Indigenous art:
Ordinarily, under the Australian Consumer Law as it currently stands, if that boomerang is properly attributed as being made overseas and not handpainted or not necessarily representing true Indigenous culture then it wouldn't breach the Australian Consumer Law and nor would we be concerned about that. That really ties into why our submission says that this is legislation that goes beyond the scope of what our act has previously allowed, which is that it is a protection for cultural heritage and cultural expression rather than a set of provisions that are meant to avoid consumers being misled.
IP Australia commented that our national intellectual property (IP) laws do not extend to inauthentic products, unless products infringed trade marks or designs. It stated:
Although there is some protection under the Competition and Consumer Act 2010 (CCA) against making false and misleading claims about the authenticity or origin of Indigenous ‘style’ products….many inauthentic products fall outside the reach of existing consumer protection laws.
Problematic definitions and assumptions made by the bill
Some evidence highlighted definitions or assumptions in the bill that were potentially problematic, which required clarification and/or further consultation with Indigenous stakeholders.
Indigenous cultural artefacts
Creative Economy noted that the bill's definition of an 'Indigenous cultural artefact' includes a list of types of objects to be protected by the bill. It suggested that this list could be amended to capture the breadth of Indigenous cultural artefacts across Australia:
It is difficult to determine a finite list of cultural artefacts. Adding the phrase 'is not limited to' [to the definition and subsequent list in the bill] would ensure the inclusion of cultural artefacts, such as head-dresses, jewellery, etc. The items in the current list are more reflected of items for Northern Territory and not fully reflected of cultural artefacts throughout Australia.
The Australian Copyright Council also advocated for a broader definition of 'Indigenous cultural artefact', as it was:
…concerned that the inclusive list does not cover contemporary developments in Indigenous cultural practice. For example, the specific reference to 'paintings on bark', seems to indicate that paintings on other media including cloth and canvas, may be excluded. Other works, resulting from, for example cloth making, print making and mark making, whilst they may arguably fall within the broader definition of 'Indigenous cultural expression', also may not fall within the definition of 'Indigenous cultural artefact'.
Mr Greiss of the ACCC highlighted the need to appropriately consult and exercise caution in the development of prohibitive definitions in legislation:
I see a lot of room for argument with respect to what constitutes a ceremonial or sacred object or what constitutes an Indigenous cultural expression. I see and commend the efforts to make it as clear and objective as possible, but lawyers have a way of muddying the clearest waters.
The 'misuse' of Indigenous cultural expression
Section 50A of the bill outlines and prohibits the 'misuse' of Indigenous Cultural expressions. Creative Economy questioned whether this could inadvertently restrict Indigenous Australians from economically benefitting from the legitimate trade and commercial sale of certain artefacts:
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.
Does this clause of the proposed Bill impact on the cultural authority of Aboriginal and Torres Strait Islander peoples and communities and their ability to seek economic returns, should they chose?
'Authenticity' and 'Indigeneity'
Professor Altman pointed out that 'determining what constitutes authentic Indigenous arts and craft product and merchandise is extremely difficult'.
Professor Altman outlined to the committee how there could be several types of 'authentic' Indigenous cultural expressions, which he distinguished as 'nominal' or 'expressive':
Nominal authenticity is the simple requirement that the producer is Indigenous. Expressive authenticity, which is alluded to in one or two other submissions to this inquiry, requires that an object's character is recognised as a true expression of artistic customs and traditions. It refers to borrowings by people with nominal authenticity from the seriously guarded customs and traditions of others—that is, if it has not got true expressive authenticity. In relation to some items like didgeridoo or dot paintings from sand designs, such borrowings have become quite ubiquitous.
Professor Altman advised that Governments trying to regulate the authenticity of Indigenous art could lead to a 'repressive' form of authenticity, which could place 'an onus of proof ' on Indigenous artists that would have negative effects. He concluded that issues around 'authenticity' in Indigenous art was 'probably an issue that needs to be addressed in the Indigenous domain'.
Implementation, administration and resourcing
Some evidence commented that the bill would be demanding to implement, administratively burdensome, and would require resourcing to be found for agencies and non-governmental bodies for monitoring and advocacy.
Capacity of the ACCC
Mr Greiss of the ACCC commented that the agency does not currently have the 'capacity or remit' to determine the level of inauthentic Indigenous cultural products in the marketplace. He noted that, where the Commonwealth has tasked the ACCC with oversight of a particular sector, it had fully funded new, 'resource intensive' activities'.
The ACCC also told the committee that it 'would struggle to find the right skills sets' within the organisation to administer and give advice on new legislation, as proposed by the bill. Additionally, Mr Greiss commented that the ACCC would have to build capacity in the Indigenous cultural products sector, even to develop guidelines on the responsibility of the sector for new laws:
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.
Mr Greiss also commented that, given its current capacity and remit, the ACCC would struggle to meet the expectations created by the new prohibitions proposed in the bill. In this regard, Mr Greiss told the committee that standalone legislation would be more effective in the long term than immediate amendments to consumer law:
We think that standalone legislation and authority tasked with oversight would probably be the gold standard with respect to this issue. There would certainly be scope then to round out some of the issues that might arise.
Professor Altman also touched on these matters. He stated that the bill was 'well intentioned', but 'likely to be very difficult and potentially bureaucratically cumbersome and so expensive'. He drew out this point further:
Australian Consumer Law could be changed to make more accurate labelling mandatory, but there would still be the issue of funding investigations by the ACCC and of educating the public, including inbound tourists, not to mention supporting existing institutional arrangements like the Indigenous Art Code, Indigenous community-based arts centres and regional organisations like the Association of Northern, Kimberley and Arnhem Aboriginal Artists or ANKAAA, and Desart, funding them more realistically to assist in grassroots regulation.
Allowing the market time for adaptation
Evidence received by the committee also discussed the need for a transition period to allow retailers to adapt to any new prohibitions in ACL.
For example, Mr Ted Hill, a Partner at Allens, which undertakes pro bono work for the IAC and ALCA, said that many retailers would need time to adapt to new arrangements. He used the following example:
I was in a country town, in the information centre, and it had some Indigenous art on sale. Someone happened to walk into the store and point it out to the person behind the counter. They said, 'You know that's fake, don't you?' The person behind the counter—a regular person, unprompted by me, although I was listening pretty carefully—said: 'Yes, I know. I don't think it's right. As soon as we've sold that stock, we're going to move to the authentic stuff.' You will need to allow that kind of transition for people who've got product on stock to sell down and find a new supplier. There will need to be a bit of lead time to allow…a grace period—people to sell down their stock, get new stock and that kind of thing.
However, the AAAA argued that unfair existing contracts should not be allowed to continue indefinitely, noting that:
Failure to do so would see enshrined in legislation the possibility to supply utterly inappropriately sourced art and souvenirs forever and a day. Grandfathering provisions are inappropriate to the issue at hand, especially as the proposed legislation has been circulated in public and there is a clear opportunity for unethical players to contract prior to enactment of the legislation.
The AAAA fully supported the bill's provision for artists to void unfair contracts for licensing of Indigenous designs, even contracts in force at the time the bill enters into law, should it be passed.
Education campaigns for producers, industry, and consumers
Some evidence argued that any legislative response to inauthentic cultural products should also be accompanied by a Commonwealth education campaign. It was suggested such a campaign should not only target the sector that produces and deals in Indigenous cultural products, but also build awareness among artists and consumers.
For example, Ms Stephanie Parkin, the Indigenous Engagement Manager for CA and Co-Chair of the IAC, told the committee that education programs were critical for the success of any legislation in the Indigenous cultural sector:
I think supporting mechanisms around legislation like this [bill] or others that go to Indigenous cultural and intellectual property are things like those that have been spoken about before: education for consumers, for retailers and manufacturers, and for artists, particularly in understanding their rights and ensuring that they're across the issues that they need to be across. Certainly legislation is good, but I think a holistic approach also needs to be taken to ensure that the legislation can have its maximum effect if it's properly supported by other things, like education for a range of different sectors of the community.
Mr Henderson of the AAAA also supported more education programs on Indigenous cultural products:
…[what] we see is that we've got to be aiming for informed choice, and that's informed choice for both the artist and the consumer….At this point, anything that we do or that's proposed needs funding for education, and there are three groups that we see as needing to be educated: the retailers, the consumers and the artists. If we don't do that then, frankly, we've got no chance of getting traction. We really may as well pack up and go home.
The HRSCIA commented that any education campaign should also target international and domestic consumers, alongside industry stakeholders:
A well-resourced, targeted education campaign aimed at tourists, domestic consumers, retailers, wholesalers and distributors would assist in reducing the prevalence of inauthentic First Nations art and craft products. Such a campaign would support the other methods suggested in this report for bolstering the sale of authentic products.
Evidence considered by the committee clearly suggests that there is a large and growing presence of inauthentic Indigenous cultural products being sold in Australia.
It is particularly concerning that estimates provided across a number of inquiries consistently indicate around 80 per cent or more of Indigenous 'style' souvenirs available on the domestic market are inauthentic. Even if it was argued in evidence that relevant data could be more robust, the committee agrees that the widespread availability of inauthentic product on the souvenir market warrants the Commonwealth's consideration of potential policy and legislative responses.
This prevalence has profoundly negative consequences not only for artists, but also the Indigenous community, industry, and consumers. Inauthentic Indigenous art misappropriates Indigenous culture, undermines the role of traditional communities, and denies Indigenous artists financial reward, recognition for their skills and abilities, and other opportunities.
It also misleads consumers, and disadvantages businesses that look to support Indigenous artists, producers and communities in an ethically sound and culturally appropriate manner.
The committee acknowledges that these matters are complex, and that there are a variety of views in the sector. The committee agrees that there needs to be more consultation with Indigenous artists, organisations and communities regarding broad legislative and policy reform to protect and support Indigenous cultural art and craft products.
The committee is aware that the Commonwealth is considering reform in this area to protect and strengthen the Indigenous art sector, including through its consideration of the 2018 HRSCIA report.
Overall, the committee supports the broader direction of these recommendations which, following extensive consultation with Indigenous and other stakeholders, should ultimately result in a comprehensive, standalone legislative framework to protect the various complex forms of Indigenous cultural expression. The committee's view is that this broader objective is beyond the scope of the current bill.
Nevertheless, the committee agrees that the concerning prevalence of inauthentic Indigenous souvenir products being sold in Australia is worthy of prompt attention by the Commonwealth, as supported by many of the submitters to this inquiry.
Accordingly, the committee supports in-principle the Commonwealth addressing the issue of inauthentic Indigenous products in the souvenir market quickly, as proposed in this bill, or through another legislative mechanism.
The committee recommends that the Commonwealth consult Indigenous artists, organisations and communities to develop legislation to prohibit the sale of inauthentic Indigenous products sold as souvenirs, either through amendment of the Competition and Consumer Act 2010 or through another mechanism.
The committee recommends that the Senate not pass the bill.
Senator the Hon David Fawcett