The Theft of Culture and Inauthentic Art and Craft: Australian Consumer Law and Indigenous Intellectual Property
Stephanie Parkin
LLB
Submitted in fulfilment of the requirement for the degree of
Master of Philosophy
School of Law
Faculty of Law
Queensland University of Technology
2020
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Abstract
This thesis focuses on the 2017 House of Representatives Standing Committee (2017 Inquiry Committee) on Indigenous Affairs Parliamentary Inquiry into the ‘growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia’. In particular, this thesis explores and gives priority to the evidence submitted by Aboriginal and Torres Strait Islander participants to the Inquiry (2017 Inquiry). In doing so, this thesis investigates a number of relevant fields of intellectual property law including copyright law and trade mark law and gives particular focus to the Australian Consumer Law (ACL). Such analysis considers and answers the research question: ‘How can the law protect Aboriginal cultural expression from exploitation?’ The geographical focus of this thesis is limited to Australia and reference to ‘2017 Inquiry’ is a reference to the above titled inquiry.
Inauthentic Art and Craft has existed in the Australian marketplace for decades. The elements of Inauthentic Art and Craft consists of souvenir products that have the visual appearance of being in Aboriginal ‘style’, however they are entirely manufactured and sold without the consent or involvement of an Aboriginal or Torres Strait Islander person. Over the years, Australian Courts have looked at the issue of the infringement of Aboriginal artworks and Inauthentic Art and Craft from an intellectual property law and consumer law perspective. The application of such laws has been with limited success in stopping Inauthentic Art and Craft. I explore the ways in which Courts have attempted to address Inauthentic Art and Craft through an examination of previous copyright law cases and ACCC investigations and proceedings, including the recent decision of Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1959 and the subsequent penalty judgment in Australian Competition and Commission Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996. Such analysis is revealing about the strengths and limitations of consumer law when dealing with Inauthentic Art and Craft.
In this thesis, I position Inauthentic Art and Craft as a product of colonial occupation and power. The evidence provided by Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry demonstrates a strong awareness of Inauthentic Art and Craft being part of the colonial conquest, continued exploitation of culture and denial of recognition of rights.
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Drawing upon the theoretical works of Professor Irene Watson and Professor Olunfunmilayo Arewa, I argue that Inauthentic Art and Craft not only needs to be addressed from a legal standpoint, but also acknowledged as a reflection of Australia’s colonial foundation and relationship with Aboriginal and Torres Strait Islander people. The work of Dr Lilla Watson in the development of Aboriginal Terms of Reference provides a framework for affirming Indigenous perspectives and definitions when addressing Inauthentic Art and Craft.
In this thesis, I draw upon and examine the evidence of Aboriginal and Torres Strait Islander people who have contributed to the 2017 Inquiry. I give particular prominence to their opinions on the importance of protecting Aboriginal cultural expression and how Inauthentic Art and Craft negatively impacts Aboriginal and Torres Strait Islander people, particularly from a cultural perspective. The purpose of identifying such voices is to firstly acknowledge that they exist, and secondly to test whether the 2017 Inquiry Report recommendations actually reflect and incorporate the concerns of Aboriginal and Torres Strait Islander people through the 2017 Inquiry. Overall, I find that the 2017 Inquiry Report recommendations do not reflect the clear messages provided by Aboriginal and Torres Strait Islander people that Inauthentic Art and Craft should be prohibited. I also consider two separate bills proposed by Bob Katter MP and Senator Sarah Hanson-Young to amend the ACL to address Inauthentic Art and Craft. I find that one of the bills more accurately reflects the 2017 Inquiry evidence submitted by Aboriginal and Torres Strait Islander people.
In the final Chapter of this thesis, I propose a multi-pronged approached to law reform to address Inauthentic Art and Craft. This includes amendments to the existing ACL and the introduction of standalone legislation to provide recognition and protection of Indigenous Cultural and Intellectual Property (ICIP) rights, in addition to non-legislative measures. Central to this thesis is the prominence of Aboriginal and Torres Strait Islander voices in relation to the impacts of Inauthentic Art and Craft, in addition to ensuring that Aboriginal people and perspectives are at the heart of any proposals for reform.
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Table of Contents
Abstract ...... 2 Statement of Original Authorship ...... 6 Acknowledgements ...... 7 Chapter 1 ...... 8 Inauthentic Art and Craft in Australia ...... 8 1.1 Introduction ...... 8 1.2 Methodology ...... 11 Legal framework ...... 11 Outline of Chapters ...... 26 Chapter 2 ...... 29 A History of Legal Responses to Inauthentic Art and Craft in Australia ...... 29 2.1 Introduction ...... 29 2.2 Copyright law and the protection of Aboriginal cultural expression ...... 31 2.3 Copyright law and Indigenous art ...... 32 2.4 Past government inquiries into Indigenous Intellectual Property ...... 38 2.5 The United Nations Declaration on the Rights of Indigenous Peoples ...... 40 2.7 Dreamtime Creations Case ...... 47 2.8 Conclusion ...... 54 Chapter 3 ...... 56 The Birubi Decision and the Birubi Penalty Case ...... 56 3.1 Introduction ...... 56 3.2 ACL breaches in the Birubi Decision ...... 58 3.3 The representations made by Birubi in the Birubi Decision ...... 63 3.4 Birubi’s creation of Inauthentic Art and Craft...... 64 3.5 The Birubi Penalty Case ...... 66 3.7 Conclusion ...... 71 Chapter 4 ...... 75 The Issue of Authenticity: An Analysis of the 2017 Inquiry’s Terms of Reference and Evidence ...... 75 4.1 Introduction ...... 75 4.22 Terminology ...... 75 4.3 Concerns about past and future efforts to address Inauthentic Art and Craft ...... 84 4.4 Consumer perspectives on Aboriginal cultural expression ...... 92 4.5 Aboriginal and Torres Strait Islander views on ‘authenticity’ ...... 99 4.6 Cultural authority ...... 102 4.7 Other responses to defining ‘authenticity’ ...... 104 4.8 Why Aboriginal Terms of Reference are important ...... 107 4.9 Conclusion ...... 109 Chapter 5 ...... 112 The Impacts of Inauthentic Art and Craft identified by Aboriginal and Torres Strait Islander people ...... 112 5.1 Introduction ...... 112 5.2 Contextualising impacts within a colonial framework ...... 114
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5.3 Evidence reflecting the colonial origins of Inauthentic Art and Craft ...... 120 5.4 The impact of Inauthentic Art and Craft on Aboriginal and Torres Strait Islander culture ...... 124 5.5 Emotional, spiritual and physical impacts ...... 135 5.6 Conclusion ...... 141 Chapter 6 ...... 143 2017 Inquiry Recommendations and Proposals to Address Inauthentic Art and Craft ...... 143 6.1 Introduction ...... 143 6.2 2017 Inquiry Report ...... 146 6.3 Recommendations in the 2017 Inquiry Report ...... 148 6.4 Evidence from the 2017 Inquiry to prohibit Inauthentic Art and Craft ...... 160 6.5 Katter Bill ...... 165 6.6 Hanson-Young Bill ...... 168 6.7 Conclusion ...... 171 Chapter 7 ...... 174 Recommendations to Prohibit Inauthentic Art and Craft ...... 174 7.1 Introduction ...... 174 7.2 Recommendations ...... 174 7.3 Conclusion ...... 181 Future Research ...... 182
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Statement of Original Authorship
The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution.
To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.
QUT Verified Signature
Signature
Date 23 September 2020
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Acknowledgements
I acknowledge that this academic work forms part of the ongoing push for reform and recognition of rights that Aboriginal and Torres Strait Islander people have fought for over many years and on many fronts. Most importantly, this thesis would not have been possible without the determination and generosity of Aboriginal and Torres Strait Islander people who have for decades articulated the importance of relationships and maintenance of cultural expressions. Their voices are strong and unequivocal and this research reflects that.
Thank you to my supervisors Professor Matthew Rimmer and Dr Kylie Pappalardo for your guidance and support, initially by planting the seed in my mind to consider research, and then throughout the research process. I have thoroughly enjoyed the privilege of being able to dedicate time and energy into this work.
Appreciation is also extended to members of the QUT Law Faculty, especially to my sister Bianca Hill-Jarro. Bianca has been part of my academic journey at QUT since the beginning, during my undergraduate law and justice degree and now throughout my postgraduate studies. I am grateful to have Bianca walk with me in this journey.
I acknowledge and thank all those who I have had conversations with about my work and those who have just listened. Special thanks go to all of my loved ones who always provide unwavering and rock-solid support and encouragement.
Throughout this research, I received scholarship support from QUT via the Indigenous Postgraduate Research Award and Faculty of Law Indigenous Higher Degree Research Top Up Scholarship and the Lionel Murphy Endowment Scholarship.
This body of work and all that I do is dedicated to my people, always.
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Chapter 1
Inauthentic Art and Craft in Australia
1.1 Introduction The focus of this thesis is the examination of inauthentic Aboriginal or Torres Strait Islander art and craft products and merchandise in the Australian souvenir market (Inauthentic Art and Craft). In particular, this thesis examines the evidence submitted to the House of Representatives Standing Committee on Indigenous Affairs Parliamentary Inquiry (2017 Inquiry Committee) into the ‘growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia’ (2017 Inquiry). This thesis argues that Aboriginal and Torres Strait Islander voices must take priority when addressing Inauthentic Art and Craft, particularly in relation to the impacts of Inauthentic Art and Craft and proposed solutions to the problem. This is due to the undeniable link that Aboriginal and Torres Strait Islander people have with their cultural expression that is being exploited in order to create Inauthentic Art and Craft. This thesis also argues that current intellectual property and consumer laws are not effective in addressing the particular concerns identified by Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry. Deeper thinking and learning about the origins of souvenirs and exploitation of Aboriginal cultural expression in Australia is needed in order to design an appropriate model for reform to prohibit Inauthentic Art and Craft.
For the purposes of this thesis, the term Inauthentic Art and Craft is defined as art and craft products and merchandise in the souvenir market that are: • manufactured overseas or domestically in Australia; • using or incorporating Aboriginal or Torres Strait Islander cultural expression; and • created and reproduced without the consent or knowledge of the Aboriginal or Torres Strait Islander people to which the cultural expression relates. The reference to ‘cultural expression’ in this definition of Inauthentic Art and Craft specifically refers to the visual cultural expression of Aboriginal people, whose styles and expressions have originated from cultural traditions, practices and knowledges of ancestors, country and family.1
1 ‘Cultural expression refers to tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. Examples include languages, music, performances, literature, song 8
The content of such expression is unique to Aboriginal people of Australia and used as a vehicle to transmit knowledge, culture and stories.2 Such cultural expression and the knowledge that informs the cultural expression is both tangible and intangible forms of cultural heritage.3 Collectively owned, this heritage is continuously looked after and forms the identity of the Indigenous groups from which the heritage originates.4 Aboriginal and Torres Strait Islander people have customary laws that outline who can access, share and use their cultural and intellectual property in accordance with law and custom, which are referred to as Indigenous Cultural and Intellectual Property Rights (ICIP) and are rights to govern and maintain Indigenous Intellectual Property.5 In the context of this thesis, Inauthentic Art and Craft does not follow or incorporate ICIP rights, and instead dismisses ICIP altogether.
An example of Inauthentic Art and Craft is a bamboo boomerang or didgeridoo designed and made in Indonesia or Australia, decorated with Aboriginal style dots or native Australian animals by a person who is not Aboriginal or Torres Strait Islander. The below image contains examples of Inauthentic Art and Craft in the form of two bamboo boomerangs used as part of the Fake Art Harms Culture campaign launched in 2016:
lines, stories and other oral traditions, dance, games, mythology, rituals, customs, narratives, names and symbols, designs, visual art and crafts and architecture’, Terri Janke and Maiko Sentina, Indigenous Knowledge: issues for protection and management (Discussion paper commissioned by IP Australia, March 2018, 17 (‘Janke and Sentina Discussion Paper’). 2 Janke and Sentina Discussion Paper (n 1) 20. 3 Terri Janke, True Tracks: Indigenous Cultural and Intellectual Property Principles for putting Self- Determination into practice (Doctor of Philosophy (by Compilation) of The Australian National University) 2019) 7. 4 Janke (n 3) 7. 5 Ibid. 9
Another example of Inauthentic Art and Craft is an item such as a tea towel, mug or key ring manufactured in Australia or overseas, decorated with Aboriginal style dots or artwork without the involvement of an Aboriginal or Torres Strait Islander person. For the purposes of this thesis, the key element of Inauthentic Art and Craft is the exploitative misuse and reproduction of Aboriginal cultural expression for profit without the consent or involvement of an Aboriginal or Torres Strait Islander person.
Research question This thesis addresses and responds to the primary research question, ‘How can the law protect Aboriginal cultural expression from exploitation?’ In developing a response to the research question, I applied thematic analysis when reviewing the submissions provided by Aboriginal and Torres Strait Islander people to the 2017 Inquiry. In reviewing the evidence, I asked the second question, ‘What are the impacts of Inauthentic Art and Craft?’ I selected this question because although the 2017 Inquiry did not specifically include this question as part of the 2017 Inquiry Terms of Reference, the majority of submissions provided by Aboriginal and Torres Strait Islander people identified the ways in which Inauthentic Art and Craft impacted their culture. By identifying the cultural impacts, this thesis addresses a gap in the approach to issues and laws relating to Inauthentic Art and Craft.
Because impacts on culture and cultural expression were spoken about strongly and frequently by Aboriginal and Torres Strait Islander people, I decided that further consideration and attention should be given to those particular impacts. The third question I posed as part of the thematic analysis was ‘What are the solutions to Inauthentic Art and Craft’? This question was included in the Terms of Reference. I considered it an important aspect of the research to assess and provide recommendations on the specific legislative and non-legislative solutions proposed within and outside the 2017 Inquiry process. For clarity, non-legislative solutions include education strategies for Aboriginal and Torres Strait Islander artists to understand how to enforce their rights within the legal system and awareness programs for the wider community to be educated about the cultural significance of Indigenous cultural expression.6
6 Terri Janke, ‘Protecting Australian Indigenous Arts and Cultural Expression: A Matter of Legislative Reform or Cultural Policy’ (1996) 7(3) Culture and Policy 21. 10
1.2 Methodology
Legal framework In this thesis, I employ a legal doctrinal method to assess Inauthentic Art and Craft in the context of intellectual property laws and the misleading and deceptive conduct provisions under the Australian Consumer Law (ACL). In this respect, past cases instituted by Aboriginal people and regulators are considered respectively under copyright law and the ACL. This thesis begins with an overview of how Australian copyright law has been used by Aboriginal people and communities to address the infringement of their legal and ICIP rights in artworks. An overview of early copyright cases identifies where artists have had successes and challenges in obtaining recognition of rights by the Courts.
The application of trade mark law is also considered in light of the failed Label of Authenticity. This Label of Authenticity attempted to introduce a labelling scheme for Aboriginal and Torres Strait Islander art and craft products, and while it failed, it raises important issues for consideration. The analysis of existing intellectual property laws and case studies leads into the application of the ACL to Inauthentic Art and Craft. In particular, the misleading and deceptive provisions of the ACL are considered in light of their application to the souvenir products the subject of the Birubi Decision7 and the subsequent Birubi Penalty Case.8 Further consideration of the ACL is given in the context of two proposed amendments to the ACL to prohibit Inauthentic Art and Craft, proposed by Bob Katter MP and Senator Sarah Hanson-Young.
Consideration of the ACL is significant because as currently drafted, if no misleading or deceptive conduct exists, Inauthentic Art and Craft is permitted to be manufactured and sold in Australia. This is the case despite the harms caused to Aboriginal and Torres Strait Islander artists and culture. This represents a gap in the current drafting of the ACL which continues to negatively impact on the lives of Aboriginal and Torres Strait Islander artists in the pursuit of their cultural and art business practices.
7 Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1959 (‘Birubi Decision’). 8 Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996 (‘Birubi Penalty Case’). 11
Voices of Aboriginal and Torres Strait Islander people This thesis draws on the public submissions filed with the 2017 Inquiry by Aboriginal and Torres Strait Islander artists and art centres, lawyers, academics, government, non-government bodies and members of the public. This is the first detailed and systematic analysis, outside of the 2017 Inquiry itself, to consider 162 submissions, 32 written and video exhibits and transcripts of 28 public hearings conducted around Australia. When reviewing the submissions, I used thematic and discourse analysis to extract particular themes and impacts of Inauthentic Art and Craft as identified by Aboriginal and Torres Strait Islander people. I also contextualised such themes and issues within a broader legal and colonial framework. The result of analysing the submissions in such ways revealed specific themes and words relating to the impacts and solutions to address Inauthentic Art and Craft.
While the analysis revealed a range impacts of Inauthentic Art and Craft, including impacts on Australia’s national identity, consumer experience and economic impacts on artists and communities, this research gives priority to and only focuses on the cultural impacts identified by Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry.9 This is due to the extent and frequency of Aboriginal and Torres Strait Islander people speaking powerfully about the negative impacts that Inauthentic Art and Craft has on their culture and cultural expression. Because this viewpoint was so dominant throughout the evidence, I decided that cultural impacts required particular attention and exploration. The other impacts identified throughout the evidence are likely to be suited to other research in another thesis. In addition, the purpose of identifying the key impact words from an Aboriginal or Torres Strait Islander standpoint is to assess whether the proposed solutions to address Inauthentic Art and Craft in Chapter 6 actually reflect the concerns articulated in the evidence of Aboriginal and Torres Strait Islander people in Chapter 5.
My decision to give priority to the voices of Aboriginal and Torres Strait Islander people participating in the 2017 Inquiry is also part of a broader field of Indigenous research that is being defined by Indigenous scholars who privilege Indigenous concerns, practices and participation.10 While there are many research needs identified by Indigenous communities,
9 SAGE Publications, The Sage Encyclopaedia of Qualitative Research Methods (online at 17 November 2019) Volume 1, ‘Indigenous Research’ 425 (‘SAGE Publications’). 10 Ibid. 12
including environmental and health issues, Aboriginal and Torres Strait Islander people are often fatigued with research that is presented by outsiders that neither promises nor delivers any real benefits.11 In recognition of such fatigue faced by many Aboriginal and Torres Strait Islander people, this research uses publicly available information submitted to the 2017 Inquiry.
I give prominence to the evidence of Aboriginal people particularly when speaking about cultural impacts of Inauthentic Art and Craft in recognition of the need to embed Indigenous ways of being within wider society, legal and government structures.12 I do this by identifying whether the proposed solutions to address Inauthentic Art and Craft actually reflect or incorporate the cultural impacts identified in the evidence of Aboriginal and Torres Strait Islander people. This is done to provide a space for Aboriginal and Torres Strait Islander voices to be heard within the dominant structure when addressing Inauthentic Art and Craft. Regardless of the outcome of this research, the evolution of Aboriginal and Torres Strait Islander led research will continue, motivated by pressing needs within our own communities and shaped by broader social and political developments.13
Much of the evidence submitted by Aboriginal and Torres Strait Islander people to the 2017 Inquiry is in the form of personal, family and community stories. While speaking in the context of the Bringing Them Home report,14 Professor Larissa Behrendt asserts that the telling of life stories is the only way in which people can understand how laws, policies and actions of politicians and judges impact on the lives of Aboriginal and Torres Strait Islander people.15 Without understanding the impact of law (or lack thereof in the case of Inauthentic Art and Craft), the necessity and drive for law reform cannot be seen or understood.16 In this regard, decision makers ‘cannot understand the need for law reform if they do not understand how laws and policies affect people’s lives’.17 Being able to articulate the significance and consequences of Inauthentic Art and Craft transfers the issues from words on paper to the
11 Ibid. 12 Ibid 426. 13 Ibid. 14 Human Rights and Equal Opportunity Commission, Bringing Them Home: A Guide to the Findings of Recommendations of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Report, 1997). 15 Larissa Behrendt, ‘Law Stories and Life Stories: Aboriginal Women, the Law and Australian Society’ (2005) (August) Redress 30, 30. 16 Ibid. 17 Ibid 31. 13
experience of Aboriginal and Torres Strait Islander people to defend against the exploitation of their culture and cultural expression.18 This process is essential to understanding the link between law and its impact19 and is employed throughout this thesis to give voice to Aboriginal and Torres Strait Islander views to advocate for change.
Analysing the ways in which negative stereotypes in broader society find their way into law and policy is another way to investigate the link between the impact of law and storytelling.20 While speaking about the way in which popular culture portrays stereotypes about Aboriginal women, Professor Behrendt notes that such stereotypes find their way into legal analysis in which such stereotypes are reinforced and rights remain unprotected.21 This understanding applied to Inauthentic Art and Craft includes stereotypes generated about Aboriginal culture as part of the colonial regime, which contribute to the lack of legal protection of cultural expression. For example, that pre-existing traditional designs were presumed to be ‘folkloric’22 and deemed incapable of attracting recognition and protection23 has arguably influenced the lack of legal protection of cultural expression despite Deceased and others v Indofurn24 dispelling that notion from a copyright perspective.25
Thick description and the cultural studies of law In giving priority to the voices of Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry, Chapter 5 includes a range of quotes taken from submissions that speak about the impacts and issues underlying Inauthentic Art and Craft. The purpose of identifying and giving a place to such quotes is not to critique each quote but to make available the issues and answers that are being raised and include them in the record of what is being said on Inauthentic Art and Craft. The method of using quotes throughout the thesis in this way is referred to as
18 Behrendt (n 15) 31. 19 Ibid. 20 Behrendt (n 15) 32. 21 Ibid. 22 Martin Hardie, ‘What Wandjuk wanted?’ in Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing Limited) 155, 161. 23 Hardie (n 22) 162. 24 Deceased and others v Indofurn (1994) 54 FCR 240 (‘Carpets Case’). 25 The Carpets Case is considered in Chapter 2 of this thesis. 14
‘thick description’.26 When reading the quotes provided by Aboriginal and Torres Strait Islander people thick description focuses attention on the significance of what is being said. The quotes taken 2017 Inquiry evidence is cast in terms of the interpretation to which Aboriginal and Torres Strait Islander experience and describe Inauthentic Art and Craft in their own words.27 When employing thick description, the task at hand is not to pull apart what is being said or remove the quotes from their time or place, because to do so risks removing the original significance and intent of what is being said, rendering the quote void.28
In addition, the evidence submitted to the 2017 Inquiry and legal approaches to Inauthentic Art and Craft are contextualised within a colonial framework of exploitation and control over Aboriginal and Torres Strait Islander people and cultural expression in Australia. The analysis of law in this context is described as the ‘cultural studies of law’, which focuses on how the law operates in ways that differ from the law’s own self-understanding and self-description.29 Coombe asserts that too little consideration has been given to the cultural nature of the actual forms that intellectual property laws protect, including the social and historical contexts within which such laws are exercised and enforced.30 This ‘cultural’ approach to law is distinguished from traditional legal scholarship which attempts to perfect legal reasoning and rarely examines the operation of the law.31 As an example, and similar to the purpose of this thesis, the cultural analysis of law may employ the use of narrative by scholars who seek to redress the injustices felt by minority communities from the dominant legal structures.32 Coombe recognises that such academic work is more frequently being conducted by minority legal scholars who are sensitive to the workings of the power of subjugation that infiltrates even the most balanced areas of legal doctrine.33
26 Clifford Geertz, Thick description: toward an interpretive theory of culture (Harper Collins Publishers Inc, 1973) 323. 27 Ibid 315. 28 Ibid 317. 29 Rosemary Coombe, ‘Is there a cultural studies of law?’ in Toby Miller (ed), A companion to cultural studies (Blackwell Publishers Ltd, 2001) 36, 37. 30 Rosemary Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Duke University Press, 1998) 7. 31 Ibid. 32 Ibid 48. 33 Ibid 7. 15
As applied to this thesis, such an approach uses the stories and experiences of Aboriginal and Torres Strait Islander people in the Inquiry to give ‘distinctive power’ to those who stand in opposition or outside dominant legal regimes.34 As explained by Coombe: Telling stories (rather than simply making arguments), it is said, has a distinctive power to challenge and unsettle the status quo, because stories give uniquely vivid representation to particular voices, perspectives, and experiences of victimization traditionally left out of legal scholarship and ignored when shaping legal rules.35
By speaking personal and cultural truths about Inauthentic Art and Craft to the 2017 Inquiry Committee, Aboriginal and Torres Strait Islander people give cultural specificity and dimension to the histories of legal identification and categorisation of existing laws in this space.36 Some scholars have described the cultural studies of law process as ‘deconstruction’ and that ‘deconstruction is justice’ because it addresses the limits of existing law and makes visible those who are invisible in legal discourse and dominant narratives.37 It follows that in bringing forward the voices of Aboriginal and Torres Strait Islander people, limitations of existing laws relating to Inauthentic Art and Craft will be revealed.
Constable suggests that injustice always appears to be located in silence and in the absence of story and voice, particularly where the law speaks and the ‘other’ is mute before the law.38 An ‘absence of voice is presumed to mean both an absence of power and an absence of justice’, and conversely, to possess voice is to be fully empowered and to realise justice.39 In that regard, the purpose of highlighting the 2017 Inquiry evidence of Aboriginal and Torres Strait Islander people is to make visible the words and concerns that may get lost in the clatter of art markets, economics, consumer issues and political ambition. While these other aspects such as economics play a role in understanding Inauthentic Art and Craft, they are not the focus of this thesis.
34 Ibid 48. 35 Ibid. 36 Ibid 49. 37 Coombe (n 29) 52. 38 Marianne Constable, ‘Reflections on Law as a Profession of Words’ 1998 in Bryant Garth and Austin Sarat (eds), Justice and Power in Sociological Studies (Northwestern University Press, 1998) as cited in Coombe (n 32) 51. 39 Coombe (n 29) 51. 16
The intention of bringing the voices of Aboriginal and Torres Strait Islander people to the forefront is to realise justice in this sense, by ensuring Indigenous people are heard and seen and reflected in the solutions for Inauthentic Art and Craft. In doing so, highlighting issues and presenting solutions that, to the extent possible, represent empowerment and justice for Aboriginal and Torres Strait Islander people. The 2017 Inquiry evidence highlights that Inauthentic Art and Craft has real impacts on Aboriginal and Torres Strait Islander people. This research is significant and needed because it gives voice to and addresses such impacts, proposes solutions and contributes to the ongoing push for legal protection of ICIP rights in Australia.
The colonial basis of Inauthentic Art and Craft The role of colonialism in the context of Inauthentic Art and Craft is considered throughout this thesis in a significant way. This is due to the exploitation of culture being one of the modes or endeavours of colonialism. While colonialism involves a much broader system of political and economic control by a dominant society,40 I give particular focus to colonialism in its form of cultural exploitation. By recognising that Inauthentic Art and Craft is a form of cultural exploitation, I argue that its origins are not recent and are rather firmly planted in the establishment of the Australian colonial state. Understanding the colonial origins of Inauthentic Art and Craft can also shed light on the reasons why reform in this area has not been forthcoming. If the practice of colonists is to control the labour force, natural resources and markets within the colony, the recognition of rights other than ones’ own requires a relinquishment of control.
The existence of Inauthentic Art and Craft and exploitation of Aboriginal imagery and design is not new in Australia. Professor Vivien Johnson previously chronicled a range of cases referred to as the ‘Aboriginal art scandals’ in the 1990s which involved non-Indigenous people falsely attempting to pass themselves or their artwork off as Aboriginal. One such event occurred in 1994 where Elizabeth Durack, a white Australian from a prominent family in Western Australia, assumed the identity of an imaginary Aboriginal man named Eddie Burrup.41 Such artworks produced by ‘Eddie Burrup’ were considered to be done with ‘Dreaming’ patterns and were entered into exhibitions, galleries and Aboriginal art awards.42
40 DWJ Books and Jennifer Weber, Colonialism (Infobase Learning, 2010) 2. 41 Vivien Johnson, ‘The Aboriginal art scandals’ scandal’ (2000) 20(1) Artlink 32, 32. 42 William Casement, ‘Art and Race: The Strange Case of Eddie Burrup’ (2016) 53(4) Society 422, 422. 17
While Elizabeth Durack ultimately confessed to impersonating an Aboriginal artist, she maintained that she did not intend to offend Aboriginal people and justified such acts through her extensive contact with Aboriginal people and art.43
While media attention on cases like that of Eddie Burrup raised concerns about the negative impact it could have on art dealers’ and artists’ incomes, there was also apprehension expressed about such artworks weakening the important messages conveyed by actual Aboriginal people about the significance of art and land.44 When speaking of such cases, Professor Ian McLean considers that non-Indigenous people creating fake Aboriginal identities and artworks in fake Aboriginal ‘style’ are examples of the colonising culture wanting to be ‘white Aborigines’.45 Further, Professor McLean suggests that such desire forms a disturbing and obsessive undercurrent in Australian mythologies of identity.46
The research in this thesis builds upon work carried out over many years by Aboriginal and Torres Strait Islander artists and members of the arts and legal industries to raise awareness of and stop the continued exploitation of Aboriginal cultural expression.47 It forms part of the broader conversation about law reform and recognition of rights that Aboriginal and Torres Strait Islander people have continually sought in Australia. According to Justice Sackville, a full account of legislation relevant to the protection of Aboriginal and Torres Strait Islander culture in Australia would require reference to large body of statutes.48 While that reference list may be long, there is no statute that affords comprehensive national protection or recognition of Aboriginal or Torres Strait Islander cultural expression.49
In that regard, Professor Megan Davis recognises that Aboriginal and Torres Strait Islander people have been disappointed with the lack of recognition and legal protection given to tangible and intangible aspects of culture and religion, for example, through land rights, native
43 Casement (n 42) 422. 44 Johnson (n 41) 32. 45 Ian McLean, White Aborigines: Identity Politics in Australia Art (Cambridge University Press, 1998) vii. 46 McLean (n 45) vii. 47 For example, Terri Janke, Minding Culture – Case Studies on Intellectual Property and Traditional Cultural Expressions (Report prepared for the World Intellectual Property Organisation, 2003) (‘Minding Culture Report’). 48 Justice Ronald Sackville, ‘Legal protection of indigenous culture in Australia’ (2002) (1) Federal Judicial Scholarship 1, 5. 49 Justice Sackville (n 48) 5. 18
title, intellectual property and heritage protection.50 Any legislative protection that has been proposed to address such areas has frequently diminished or inadequately addressed such aspects of culture.51 The reality, Professor Davis asserts, is that governing bodies have failed to accommodate cultural difference, and in some cases, ‘distorted and limited the practice of Indigenous culture’.52 One of the purposes of this thesis is to assess whether the 2017 Inquiry and its recommendations to address Inauthentic Art and Craft have accommodated the cultural impacts as articulated by Aboriginal people.
I acknowledge that the exploitation of Aboriginal cultural expression, through the existence of Inauthentic Art and Craft, sits within and is representative of the broader unbalanced relationships that have and continue to exist between Aboriginal and Torres Strait Islander people and governing bodies and non-Indigenous people. Indeed, the fact that Inauthentic Art and Craft exists is a reflection of the relationship that Australia more broadly has with Aboriginal and Torres Strait Islander people and arguably fits the narrative of such relationship to date. Such issues stem from the initial and ongoing acts of colonisation of Australia and the inability of the Australian state to recognise or accommodate Aboriginal and Torres Strait Islander rights. Chapter 5 of this thesis further explores the colonial underpinnings of the impacts of Inauthentic Art and Craft on Aboriginal and Torres Strait Islander people.
Professor Marcia Langton asserts that the relationship between cultural expression and conquest is evident through history, ‘from the early colonial landscape paintings as emblems of colonial conquest, to the trivialisation of genocide in kitsch ‘Australiana’ and the essentialist notions of Aboriginality’ which trap Aboriginal people today in a cultural ‘double bind’.53 In drawing analogies with Professor Langton’s discussion in relation to the management of national parks, the ‘double bind’ does not permit Aboriginal people to manage their cultural expression but rather requires that Aboriginal culture serve as the advertising emblem to international tourist markets of Australia.54 In that regard, the tourism industry continues to use Aboriginal images and cultural expression as a key branding strategy when presenting
50 Megan Davis, ‘A culture of disrespect: Indigenous peoples and Australian public institutions’ (2006) 8 University of Technology Sydney Law Review 135, 135. 51 Davis (n 50) 135. 52 Ibid 136. 53 Marcia Langton, ‘What do we mean by wilderness? Wilderness and terra nullius in Australian art’ (1996) The Sydney Papers 11, 11. 54 Ibid. 19
Australia to the world.55 The impression that such use gives is that Aboriginal people and culture have and continue to be at the forefront of everyday Australian life.56 Confusingly, such a representation was and continues to be at odds with the reality of Aboriginal people and culture taking a disproportionately disadvantaged place within Australian society.57
Similarly, Kathy Bowrey suggests that the development of the Aboriginal art and souvenir market is grounded in and must be understood as part of Australia’s ongoing colonial endeavour. When viewed from this perspective, Bowrey asserts that the exploitation of Aboriginal culture by non-Indigenous parties is tied to the history of past injustices and treatment of Aboriginal people, which now plays out in the dynamics of the Aboriginal art market.58 Further articulation of this framing is provided by Jason Davidson59 from Gurindji country in the Northern Territory who is quoted by Bowrey, ‘Indigenous and non-indigenous people have written in important copyright journals, we have heard people talking at important conferences about Aboriginal art and the rip offs, but still the trend continues’.60 Given the continued work over many decades to address and stop Inauthentic Art and Craft, one must question and consider the underlying causes or drivers that permit Inauthentic Art and Craft to have a place in the Australia.
At the time the British colonised Australia, it is estimated that more than 500 different Aboriginal nations existed, each nation having great diversity in culture and languages.61 During the 1940s through to the 1970s, souvenirs containing Aboriginal people and symbols became popular in the Australian market. This popularity was primarily driven by international tourists’ keen interest to extract the ‘true Australian’ from the increasingly homogenised Western contemporary society that was being presented.62 Professor Langton asserts that such Aboriginal imagery at the time was created to give the impression of a distinctive way of Australian life which incorporated Aboriginal images along with the kangaroo and koala, in an
55 Adrian Franklin, ‘Aboriginalia: Souvenir Wares and the ‘Aboriginalisation’ of Australian Identity’ (2010) 10 Tourist Studies 195, 204. 56 Franklin (n 55) 196. 57 Ibid 203. 58 Kathy Bowrey, ‘Economic Rights, Culture Claims and a Culture of Piracy in the Indigenous Art Market: What Should We Expect from the Western legal system?’ (2010) 13(2) Australian Indigenous Law Review 35, 35. 59 Jason Davidson, ‘Stomping out the middlemen: the punks who rip off Aboriginal artists’ (2006) 6(18) Indigenous Law Bulletin 16. 60 Bowrey (n 58) 39. 61 Larissa Behrendt, ‘Closing the gap in our knowledge’ (2018) 97 Australian Educator 20, 20. 62 Franklin (n 55) 195. 20
imperial sign of the colony’s civilisation over nature.63 The use of Aboriginal imagery in such a way was and continues to be motivated by an insecure colonial society attempting to create ‘a mythology which allows its participants to presume innocence in the colonial process’.64 When viewed and understood through this lens, the use of Aboriginal imagery by the dominant society via Inauthentic Art and Craft is an attempt to control the Indigenous image and at the same time validate Western existence in Australia without facing the reality of colonisation. The visual appearance of Inauthentic Art and Craft does not easily make known these underlying colonial drivers, but they have arguably contributed to the way in which exploitation of cultural expression has and is allowed to exist in relation to Inauthentic Art and Craft.
Brennan and Savage also observe that while average tourists are unlikely to agonise over the appropriateness of a souvenir purchase,65 cultural tourists are likely to actively seek out quality souvenirs containing cultural expressions that are Indigenous to that country.66 Regardless of the average or cultural tourist possessing the intent to make the right souvenir purchase, consumers are nonetheless heavily reliant on the ethical business practices of manufacturers and retailers to supply souvenir with ethical souvenirs to purchase.67 In that sense, manufacturers and retailers could be interpreted as a type of custodian of the souvenir and assume responsibility to stop Inauthentic Art and Craft from existing in the souvenir market.68 However, the bestowed title of custodian is problematic when most souvenirs are manufactured and retailed by businesses that are rarely owned by Aboriginal or Torres Strait Islander people,69 and where it is not against the law to produce and supply Inauthentic Art and Craft. Some have suggested a more appropriate label for such businesses is ‘the new colonists’ of Aboriginal people and culture, through the control, exploitation and appropriation of cultural expression for profit.70
While the form of a commercial business as a colonist might be new, the practice of exploiting cultural expression as part of the colonisation process is not. Indeed, the work of Professor
63 Langton (n 53) 16. 64 Ibid. 65 Linda Brennan and Theresa Savage, ‘Cultural consumption and souvenirs: an ethical framework’ (2012) 2 Arts Marketing: An International Journal 144, 150. 66 Brennan and Savage (n 65) 145. 67 Ibid 150 68 Ibid. 69 Ibid 149. 70 Ibid. 21
Langton suggests that such businesses are not new colonists at all, as from the earliest of times the image of Indigenous people has served as souvenirs for explorers returning to their imperialist centres.71 In that regard, souvenirs are viewed as ‘colonial treasures’ when the coloniser inappropriately romanticises Aboriginal people and culture.72 In this sense, souvenirs presented in a palatable way can also act as trophies of colonial achievement. Indeed, the act of collecting or stealing Aboriginal artefacts, skulls and bones for display in museums was central to colonialism. While sometimes under the appearance of education or intrigue, the exhibition of such material by the coloniser acts as constant reminder of imperialism and conquest.73 When considered in this respect, the symbolism and concept of a souvenir could arguably be constructed as a Western concept. Therefore, while it may be the case that souvenirs play a role in the tourism experience, with tourists wanting to take home a memento of the places they have been, when viewed through a colonial lens, they are also reminders of colonial achievement and act to create ‘a mythology which allows its participants to presume innocence in the colonial process’.74 This practice has continued with the prolonged existence and proliferation of Inauthentic Art and Craft in Australia.
Souvenirs generally pictorialize Aboriginal and Torres Strait Islander people in a stereotypical way, including hunting with a spear, playing the didgeridoo or as stockmen.75 Producers of Inauthentic Art and Craft are unlikely to be cognisant of the nuances of Aboriginal people and cultural expression, which means that souvenirs play a significant role in perpetuating negative stereotypes and myths about Aboriginal people and reinforce the power imbalance between Aboriginal and non-Indigenous people.76 Elizabeth Coleman refers to Robert Eggington who suggests that Aboriginal culture is misrepresented when non-Aboriginal people create and use Aboriginal cultural expressions,77 and he urges, ‘We need to nurture [Aboriginal culture] and protect it. And we need to make sure that when it is passed on through our generation it is Aboriginal people telling our story our way and it’s not contaminated by non-Aboriginal expressionists’.78
71 Langton (n 53) 12. 72 Brennan and Savage (n 65) 148. 73 Ibid. 74 Langton (n 53) 16. 75 Brennan and Savage (n 65) 148. 76 Ibid 147. 77 Elizabeth Burns Coleman, ‘Aboriginal painting: identity and authenticity’ (2001) 59 The Journal of Aesthetics and Art Criticism 385, 387. 78 Ibid. 22
In this context, souvenirs have the capacity to act as a persistent reminder to the wider population of Aboriginal people and culture, and also the blunt reality of colonisation, dispossession and repression.79 The multidimensional nature of a souvenir and the cultural expression contained on it demonstrates how they can be symbolic of Australian tourism and at the same time, politically charged objects representative of Australia’s relationship or lack thereof with Indigenous people.80 When viewing Inauthentic Art and Craft through this lens, it proposes that the manufacture and sale of Inauthentic Art and Craft is a continuous act of colonisation of Aboriginal people. This is achieved through predominately non-Indigenous businesses controlling and profiteering off Aboriginal cultural expression, with passive societal acceptance and without legal consequence.81 Acknowledging the historical undercurrents of souvenirs lays the foundation to consider role that Inauthentic Art and Craft plays within the broader Australian society.
The application and impact of policy In the case of Queensland, Gilbert briefly recounts periods of time that have been instrumental in forming perspectives and controlling the lives of Aboriginal people. Prior to 1897 (which was the year that Queensland Aborigines Protection and Restriction of the Sale of Opium Act (Opium Act) was enacted) writers used violent terms such as ‘extermination’ and ‘dispossession’ to describe the ideology of that period in relation to Aboriginal people.82 From 1897 through to the 1960s, Queensland was governed by the idea of protectionism and under the Opium Act. This permitted the unfettered removal of Aboriginal people from their homes onto reserves and removed freedoms of Aboriginal people in relation to labour, movement, property and custody of Aboriginal children. Further, from 1965 the Aboriginal and Torres Strait Islander Affairs Act (Qld) dictated ‘assimilation’ to be the dominant policy, which justified the undermining of Aboriginal and Torres Strait Islander culture and continued dispossession of such people.83
While this very brief account does not acknowledge the magnitude of dominance of colonial control exerted over Aboriginal lives, it is included to give context to the way in which the existence of Aboriginal people has been approached from a policy perspective. I argue that
79 Franklin (n 55) 195. 80 Ibid. 81 Brennan and Savage (n 65) 148. 82 Stephanie Gilbert, ‘A Postcolonial Experience of Aboriginal Identity’ (1995) 9(1) Cultural Studies 145, 146. 83 Ibid. 23
such policies are not ancient relics, but rather, give context to and shed light on the current lack of recognition of rights in favour of Aboriginal people and their cultural expression. Arguably, the existence of such restrictive and dominant policies over the lives and culture of Aboriginal and Torres Strait Islander people continue to influence the current day position with respect to law and policy. In the case of Inauthentic Art and Craft this could be a reason why a recognition and protection of ICIP rights has not eventuated. Professor Watson suggests that such types of inequalities in policy and law are purposefully maintained to sustain the life of the Australian settler state.84
Indeed, the evidence submitted by Aboriginal and Torres Strait Islander people demonstrated a very real awareness that more than enough time has passed for ‘talking’ about Inauthentic Art and Craft and while there is recognition effective measures to stop Inauthentic Art and Craft are needed, there is suspicion that anything meaningful will actually occur as a result of the 2017 Inquiry. For example, Vernon Ah Kee referred to the continual repetition of issues and possible solutions to address Inauthentic Art and Craft: so now we find ourselves going over this same territory again and asking ourselves and pointing the finger at different sectors of the industry, looking for answers to solutions that have, you know, really simple, simple answers— like the answers to problems that have really simple solutions but will probably be dismissed again.85
Richard Bell also raised apprehension about the 2017 Inquiry outcome by stating, ‘Oh, it'll do something. I'm sure there'll be a lot more white people in jobs after this’.86 Bell explained further, ‘Well, this is what happens if you look at history. Whenever there's an inquiry, there's always the solutions, which are always bureaucratic, and the bureaucrats are almost always white’.87 The suspicion expressed by Aboriginal and Torres Strait Islander people is not without justification. In this context, the 2017 Inquiry recommendations are positioned in light of governments’ previous policy approaches to issues that impact Aboriginal and Torres Strait Islander people.
84 Irene Watson, ‘What Is Saved or Rescued and At What Cost?’ (2009) 15(2) Cultural Studies Review 45, 46. 85 Vernon Ah Kee, Exhibit 11 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 3 (‘Vernon Ah Kee exhibit’). 86 Richard Bell, Exhibit 7 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 2 (‘Richard Bell exhibit’). 87 Ibid. 24
Atkinson, Taylor and Walter similarly surmise that over the last few decades in Australia, policy approaches to issues that impact people have shifted between ‘dismantling, defunding and neglect, on the one hand, and an aggressive, conditional and even militarized operation on the other’.88 From the extent of discussion over the decades and without significant reform, it is easy to categorise Inauthentic Art and Craft and more broadly, recognition of rights into the ‘dismantling’ and ‘neglect’ category of policy approach as described by Atkinson, Taylor and Walter. As an example, this is contrasted with the ‘aggressive’ and ‘militarized’ policy approach taken in relation to the Northern Territory Intervention.89 While the issues pertaining to the Northern Territory Intervention are outside the scope of this thesis, the example is used to show the different ways in which governments approach issues that impact Aboriginal people.
One clear comparison between the two policy approaches is where Aboriginal and Torres Strait Islander people call for reform to recognise or protect particular rights. In such instances, there is a reluctance to consider such issues in a significant way, let alone implement change that is driven by Aboriginal and Torres Strait Islander people. This approach is compared to cases where Aboriginal and Torres Strait Islander people are the subject of a complaint or perceived to be problematic. In that case, targeted and hard-line action is taken against Aboriginal people without prior consultation or consent.90 Such action impinges on the rights of Aboriginal people and is otherwise legitimised by ensuring exceptions to laws exist so the racist imposition of law and policy against Aboriginal people is deemed lawful.
The impacts of the ‘dismantling’ and ‘aggressive’ policy models are the same in the context of both reducing the political power and presence of Aboriginal and Torres Strait Islander communities and perpetuating stereotypes about such people.91 According to Atkinson, Taylor and Walter, while such policies lay in the ideological compass of the government of the day, one cannot ignore that ‘broader systemic forces are also important in shaping our understanding
88 Rowland Atkinson, Elizabeth Taylor and Maggie Walter, ‘Burying Indigeneity: the spatial construction of reality and Aboriginal Australia’ (2010) 19(3) Social and Legal Studies 311, 326. 89 The Northern Territory Intervention was imposed via the enactment of the Northern Territory Emergency Response Bill (Cth) 2007. The Northern Territory Intervention was read by some as a contemporary invasion of Aboriginal lands, however the Australian public and its political system read it as a humanitarian intervention, as a lawful process of the Australian state, see Watson (n 84) 46. 90 Ibid 54. 91 Atkinson, Taylor and Walter (n 88) 326. 25
of the emergence of such policies,92 including colonial control and power’. To ensure that past policy models identified in this Chapter are not repeated, the voices of Aboriginal and Torres Strait Islander people must be at the centre of addressing Inauthentic Art and Craft. This thesis is important because it gives priority to the evidence of Aboriginal and Torres Strait Islander people submitted to the 2017 Inquiry. Particular attention is given to Aboriginal and Torres Strait Islander perspectives on the cultural impacts of Inauthentic Art and Craft and approaches to the issue of ‘authenticity’. This is a deliberate approach to ensure that Indigenous views are identified and incorporated to models for reform.
Outline of Chapters Chapter 1 of this thesis provides a brief history of the existence of Inauthentic Art and Craft in Australia and in doing so gives particular attention to the colonial and policy framework within which Inauthentic Art and Craft has and continues to exist. Consideration of previous policy and approaches to Aboriginal people in Australia is briefly addressed in order to highlight how past policies influence current approaches to the recognition of ICIP rights. By identifying the colonial undercurrents of Inauthentic Art and Craft it is intended that a broader approach to understanding to developing models for reform can be achieved.
Chapter 2 considers intellectual property law and the Australian Consumer Law (ACL) as the legal frameworks within which the thesis approaches the issue of Inauthentic Art and Craft. Chapter 2 highlights some of the previous copyright disputes instituted by Aboriginal people in the pursuit of their legal and cultural rights. This Chapter also provides an overview of previous investigations and action taken by the Australian Competition and Consumer Commission (ACCC) in relation to the sale of Inauthentic Art and Craft. The purpose of examining past copyright and ACL action is to establish the legal landscape upon which cultural expression has been viewed by Aboriginal people, the Courts and sellers of Inauthentic Art and Craft. An examination of past actions taken under intellectual property laws and the ACL highlights the extent to which Indigenous Intellectual Property has been recognised by the Courts to date.
92 Ibid. 26
Chapter 3 focuses on the recent Birubi Decision93 and how the Court approached the issue of Inauthentic Art and Craft under the ACL. The subsequent Birubi Penalty Case94 is also addressed which focuses on the factors that the Court took into account when considering the penalties to be imposed against Birubi. Particular attention is given to the evidence of Dr Marika who speaks to the cultural impacts and consequences of Inauthentic Art and Craft. The examination of the Birubi Decision and Birubi Penalty Case highlights the limitations of the current ACL in prohibiting Inauthentic Art and Craft and recognising ICIP rights.
Chapter 4 of the thesis analyses the meaning of ‘authenticity’ in the context of the 2017 Inquiry Terms of Reference and relevant evidence. The concept of authenticity was highlighted as a major issue for the 2017 Inquiry to understand and define in the context of addressing Inauthentic Art and Craft. As a construct that is related to Western concepts of individualism, the concept of ‘authenticity’ is at odds with the views that Aboriginal and Torres Strait Islander people expressed through the 2017 Inquiry. When considered as part of a model for reform, the concept of authenticity must be viewed and understood through Aboriginal Terms of Reference.
Chapter 5 identifies the impacts of Inauthentic Art and Craft as extracted from the evidence submitted to the 2017 Inquiry. The evidence presented by Aboriginal and Torres Strait Islander people is given priority in order to understand and explore how Inauthentic Art and Craft uniquely affects Aboriginal and Torres Strait Islander people and communities from a cultural perspective. This thesis gives attention to such impacts identified by Aboriginal and Torres Strait Island people, in an attempt to ensure that proposed models for reform address such cultural impacts.
Chapter 6 examines recommendations proposed by the 2017 Inquiry Committee to government in a 2018 document titled, ‘Report on the impact of inauthentic art and craft in the style of First Nations peoples’ (2017 Inquiry Report) to address Inauthentic Art and Craft. Chapter 6 also considers two separate proposed amendments to the ACL provided outside the 2017 Inquiry process proposed by:
93 Birubi Decision (n 7). 94 Birubi Penalty Case (n 8). 27
• Bob Katter MP in 2017 as a private members bill titled Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 (Katter Bill); and • Senator Sarah Hanson-Young from the Greens party in 2019 titled Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019 (Cth) (Hanson-Young Bill).
The purpose of examining the particular proposed solutions is to identify whether the concerns of Aboriginal and Torres Strait Islander people raised in Chapter 5 have been understood and reflected in the recommendations and proposed ACL amendments. In taking into account the limitations of 2017 Inquiry Report recommendations and ACL amendments, I also propose my own model for law reform to prohibit Inauthentic Art and Craft.
Taking into account previous Chapters in this thesis, Chapter 7 sets out the recommendations proposed to address Inauthentic Art and Craft and proposals for further research in the area of Indigenous Intellectual Property.
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Chapter 2
A History of Legal Responses to Inauthentic Art and Craft in Australia
2.1 Introduction This Chapter provides a brief history of previous actions instituted by Aboriginal people and Australian regulators under existing intellectual property laws and the Australian Consumer Law (ACL). The purpose of doing so is to understand the historical landscape upon which the exploitation of Aboriginal cultural expression has been dealt with by the Courts. Before the more recent reliance on the ACL to address Inauthentic Art and Craft, intellectual property laws were initially employed by Aboriginal people to argue cases of infringement of legal and Indigenous Cultural and Intellectual Property (ICIP) rights. This Chapter identifies early copyright cases involving the use of Aboriginal cultural expression without consent and moves to a more comprehensive analysis of the use of the ACL in such cases. I briefly consider previous actions by the ACCC and Courts against businesses in relation to Inauthentic Art and Craft in order to frame and understand the application of the now repealed TPA.95 The purpose of considering such past actions is to also identify the limitations and challenges that the law has in prohibiting Inauthentic Art and Craft and recognising ICIP rights. Further, such limitations of law can be addressed in proposed models for reform to prohibit Inauthentic Art and Craft.
Aboriginal and Torres Strait Islander people frequently experience legislative inaction at all levels of government on issues that require urgent action and as a result, are acutely aware of the struggle to protect their rights.96 Intellectual property law as it applies to Aboriginal and Torres Strait Islander people is no different. Existing Australian intellectual property laws do not adequately recognise or protect Aboriginal and Torres Strait Islander culture and knowledge.97 Such laws do not sufficiently protect ICIP rights and have often have the negative impact of alienating Indigenous people from their cultural expression and knowledge.98 In fact,
95 Now referred to as the Competition and Consumer Act 2010 (Cth). 96 Davis (n 50) 146. 97 Janke (n 3) v. 98 Ibid 7. 29
intellectual property laws allow for the exploitation of Indigenous knowledge ‘by providing monopoly property rights to those who record or write down knowledge in a material form’.99
Terri Janke in the ‘Our Culture: Our Future’ report points out that existing Australian intellectual property laws are inadequate in protecting Indigenous cultural and intellectual property and therefore cultural expression.100 This is due to, among other things, the lack of recognition of communal ownership, the limited period of copyright protection (particularly relevant for very old works) and the lack of protection of the underlying knowledge that supports or gives life to the cultural expression.101 Obtaining copyright protection in Indigenous artworks can sometimes be difficult to achieve, particularly where designs have existed and been passed down through the generations or have been brought into existence through communal contribution and effort.102 The deficiencies in copyright law to address the particular concerns of Aboriginal and Torres Strait Islander people and artists have not been adequately legislated, despite there being discussion papers and proposals for reform.103 In addressing the expectations of Western legal systems to unique areas like Aboriginal cultural expression, it is recognised that copyright law acts to promote the commodification and monopolisation of mass market forms of expression and that assessments of artistic value or contribution to culture sit outside the application of such laws.104
Professor Davis argues that in such cases where Indigenous cultural knowledge and expression cannot be easily accommodated within Western intellectual property law systems, the unequal bargaining power between Indigenous people and the Australian state is maintained.105 Professor Davis further observes that the lack of legislative action is extraordinary given the major contribution of Aboriginal arts and crafts to the economy and tourism in Australia.106
99 Terri Janke, ‘Managing Indigenous Knowledge and Indigenous Cultural and Intellectual Property’ (2005) 36(2) Australian Academic and Research Libraries 95, 96. 100 Terri Janke and Michael Frankel and Company, Our Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual Property Rights (Report prepared for the Australian Institute for Aboriginal and Torres Strat Islander Commission, 1998), xxii (‘Janke and Michael Frankel and Company’). 101 Terri Janke and Jean Kearney, ‘Rights to Culture: Indigenous Cultural and Intellectual Property (ICIP), Copyright and Protocols’ (Web page, 1 November 2019)
Frustration due to the lack of legislative action in relation to Inauthentic Art and Craft and Indigenous Intellectual Property rights permeates throughout much of the evidence submitted to the 2017 Inquiry. In particular, the evidence clearly indicates that Aboriginal and Torres Strait Islander people are concerned about the lack of legislative protection of Aboriginal cultural expressions107 and consequently how the exploitation of culture through Inauthentic Art and Craft continues to damage culture.108
2.2 Copyright law and the protection of Aboriginal cultural expression Aboriginal people have had a long history of seeking out and testing Australian laws to stop the exploitation of their cultural expression and intellectual property rights. In the 1970s, Mr Wandjuk Marika, artist and cultural leader, made a plea for recognition and protection of such rights by stating: It is not that we object to people reproducing our work, but it is essential that we be consulted first, for only we know if a particular painting is of special sacred significance, to be seen only by certain members of a tribe, and only we can give permission for our won work of art to be reproduced. It is hard to imagine the works of great Australian artists like Pro Hart or Sidney Nolan being reproduced without their permission. We are only asking that we be granted the same recognition, that our works be respected and that we be acknowledged as the rightful owners of our own works of art.109
Mr Marika’s statement stresses a key element of seeking permission with respect to Aboriginal art and designs and identifies a distinction between the way in which Aboriginal and non- Indigenous artists and artwork is valued and treated. Hardie explains that such a distinction is not favourable to Aboriginal artists and artwork due to ethnocentric and racist attitudes towards Aboriginal people.110 Unlike other artists whose artistic output is influenced by pre-existing traditions of religious subject matter such as Michelangelo, Aboriginal artwork has been
107 Stephen Hogarth, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 147, undated) 2 (‘Hogarth submission’). 108 Arts Ceduna, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 85, 3 November 2017) 1 (‘Arts Ceduna submission’); Glenn Iseger-Pilkington, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 108, 2 November 2017) 3 (‘Glenn Iseger-Pilkington submission’). 109 Hardie (n 22) 161. 110 Ibid 162. 31
demeaned by being labelled as ‘folkloric’ and only relying on pre-existing traditions for the purposes of ‘inspiration’.111
The view that Aboriginal artwork was incapable of attracting recognition and protection was so ingrained in the national psyche in the 1980s that the Commonwealth Government researched the protection of Aboriginal folklore for a period of eight years.112 The result of that investigation was the Commonwealth Government’s position that because Aboriginal artwork drew upon pre-existing traditions, such works lacked originality and therefore were not afforded protection under Australian copyright law.113 This resulted in Aboriginal artists being actively discouraged by governments, lawyers and members of the art industry from exercising their rights in relation to their artworks.114 While the Carpets Case (discussed below) would ultimately disprove this position from a legal standpoint, the ethnocentric and racist undertones as noted by Hardie arguably have not been similarly dispelled. This is demonstrated through the prolonged existence of Inauthentic Art and Craft, which continues to disadvantage artists and exploit cultural expression.
2.3 Copyright law and Indigenous art Mr Marika’s articulated position and call for recognition in the 1970s echoed throughout a number of important developments and challenges where Aboriginal people’s cultural expression had been exploited and steps taken to seek recognition of cultural and intellectual property rights.
Mr Malangi Mr Malangi belonged to the Manharrngu people of Arnhem Land in the Northern Territory. In 1966, it came to light that the Reserve Bank had used a photograph of one of Mr Malangi’s bark paintings and reproduced the painting on the Australian $1 note. Mr Malangi’s work was used without his knowledge and therefore without recognition or payment to Mr Malangi as the artist of the work.
111 Ibid 161. 112 Titled ‘Report of the Working Party on the Protection of Aboriginal Folklore’, Hardie (n 22) 162. 113 Hardie (n 22) 162. 114 Ibid. 32
The Reserve Bank ‘assumed the painting was the work of an anonymous, and probably long dead, artist’.115 Once it was revealed Mr Malangi was in fact the artist, the Reserve Bank provided him with $1,000 cheque, a fishing kit and inscribed silver medallion.116 The circumstances surrounding the infringement of Mr Malangi’s rights demonstrated how ‘white Australia was previously entirely unaware of Aboriginal art’s real value, disrespectful of its individual practitioners and unaware of the intellectual property and related legal issues to which its unauthorised use gave rise’.117 Arguably, this lack of understanding continues to contribute to the position of Inauthentic Art and Craft in Australia. While Mr Malangi’s case did not proceed to legal action, it increased awareness of issues in copyright and ICIP protection in Australia.118
Mr Yumbulul In 1991, Mr Yumbulul from the Warramiri people of North East Arnhem Land commenced an action in relation to the reproduction of his ceremonial Morning Star Pole on the 1988 commemorative $10 note. The action was brought by Mr Yumbulul against the Reserve Bank of Australia and the Aboriginal Artists Agency Ltd (AAA). The Reserve Bank relied on an agreement entered into between Yumbulul and the AAA where permission to reproduce the Morning Star Pole was granted. The right to reproduce the Morning Star Pole was subsequently licensed to the Reserve Bank who printed it on the 1988 commemorative $10 note. In bringing the action, Mr Yumbulul argued that he was deceived into signing the agreement with the AAA and it was therefore not enforceable.119
It was heard that Mr Yumbulul came under considerable criticism from within his community for permitting the reproduction of the Morning Star Pole by the Reserve Bank as the reproduction exceeded authority that had been given to him under customary law.120 In particular, while it was appropriate for the Morning Star Pole to be permanently displayed to educate the wider community about Aboriginal culture, it was not appropriate to be reproduced
115 Djon Mundine, ‘Essays’, No Ordinary Place: The Art of David Malangi (Web page, 11 September 2019)
on money.121 While the Court stated there was insufficient evidence to substantiate Mr Yumbulul’s claim, Mr Yumbulul maintained that he would not have consented to the Reserve Bank reproducing the Morning Star Pole on bank notes had he fully appreciated the nature the agreement and how it impacted his cultural obligations.122 While Justice French noted that ‘greater care could have been taken in this case’123 he ultimately found that Mr Yumbulul had mistakenly believed that the agreement would impose limitations on the use of the Morning Star Pole similar to those in Aboriginal customary law, when that was not the case.
While the case was ultimately dismissed, it highlighted how Australian copyright law does not recognise Aboriginal community claims to regulate the reproduction of pre-existing Indigenous designs which are communal in origin.124 Justice French also noted that the case demonstrated the ‘difficulties that arise in the interaction of Aboriginal culture and the Australian legal system relating to copyright and commercial exploitation of works by Aboriginal people’.125
The Carpets Case In 1994, an action was taken by a group of Aboriginal artists against an importer of carpets who had reproduced the artists’ works onto carpets without their permission and sold the carpets for profit in Australia.126 The artists’ works incorporated pre-existing cultural clan images and in some instances, were altered by the manufacturer which distorted the cultural message of the works.127
Reflecting existing myths about the inability of Aboriginal art to attract legal protection, the defendant, an Australian based importer company denied that copyright subsisted in Aboriginal art because it lacked originality.128 Justice Von Doussa disagreed with defendant’s arguments and found that while the works were based on existing and traditional themes, copyright did subsist as the works contained ‘intricate detail and complexity reflecting great skill and originality’.129 His Honour found the defendant’s carpet was a copy of the artist’ original work
121 Ibid. 122 Ibid. 123 Ibid. 124 Janke (n 3) 49. 125 Yumbulul (n 119) [1]. 126 Carpets Case (n 24). 127 Minding Culture Report (n 47) 9. 128 Ibid 17.
34
and therefore infringed copyright. This resulted in a landmark decision representing an accommodation of copyright law to protect Indigenous art and cultural expression. The case was also significant as Justice Von Doussa considered the notion of ‘cultural harm’ on the basis that other remedial avenues offered through the law were inadequate. His Honour alluded to this consideration by noting that the economic mode of measurement was not how the artists were measuring the harm caused by the infringing carpets.130 In this regard, the Court heard how the harm extended beyond the individual artist to the community, and where the damage had the potential to displace the significance of the role of artist.131 This led to a new form of damages and established the precedent for cultural specificity of the harm caused to the artists.132 His Honour justified the precedent for the notion of ‘cultural harm’ through the specific section of the Copyright Act with regard to all ‘relevant matters’ and comparisons to personal injury law.133
The Court also considered whether the infringing carpets breached the now repealed Trade Practices Act (TPA).134 Justice Von Doussa found that labelling on the carpets, which stated ‘Royalties are paid to Aboriginal artists’, was misleading given that royalties were not paid. The labels had also been attached to other carpets which had no Aboriginal association or involvement at all. By using such labelling, the defendant was misleading consumers to believe that the copyright in the artworks belonged to the defendant, or was licensed to it, or the carpets were approved or made under the licence and approval of the Aboriginal artists, when this was not the case. Justice Von Doussa found that such false and misleading conduct amounted to an infringement of the TPA.135 His Honour also noted that if the carpets were not substantial reproductions of the artworks, as the defendants alleged, then it would have been false to describe the carpets as designed by Aboriginal artists.
The Court ordered delivery up of the unsold carpets and damages of $188,640 awarded on a collective basis, rather than individual, so the artists could distribute the damages according to cultural practices.136 This demonstrated recognition not only of financial loss of the artists, but
130 Jane Anderson, Law, Knowledge, Culture: The Production of Indigenous Knowledge (Edward Elgar Publishing Limited, 2009) 139. 131 Anderson (n 130) 139. 132 Ibid. 133 Ibid. 134 Now referred to as the Competition and Consumer Act 2010 (Cth). 135 Ibid. 136 Terri Janke, ‘The Carpets Case’ (1995) 20(1) Aboriginal Law Bulletin 36, 36. 35
the harm caused by the theft and exploitation of their cultural expression. Not long after the Carpets Case, moral rights were introduced as an amendment to the Copyright Act. Janke suggests that if moral rights had been in existence at the Carpets Case was heard, the individual artists may have had additional claims to pursue for moral rights infringement.137
Mr Bulun Bulun In 1998, Mr Bulun Bulun and Mr M as representatives of the Ganalbingu people instituted proceedings against company R & T Textiles for copyright infringement. The company reproduced bark paintings by Mr Bulun Bulun onto fabric in Indonesia and imported them into Australia for sale.138 Mr Bulun Bulun’s work, titled ‘Magpie Geese and Water Lilies at the Waterhole’ was created in 1976 in accordance with the traditional laws and customs of the Ganalbingu people.139 As soon as proceedings were served, R & T Textiles admitted infringement of Mr Bulun Bulun’s copyright in the artistic work and confirmed that infringement had occurred in ignorance of the copyright existing.140 Mr M continued the proceedings in his own right claiming the Ganalbingu people had certain rights in the copyright that were separate to the rights of Mr Bulun Bulun. While the Court dismissed Mr M’s claim, Justice Von Doussa’s judgment raised important issues relating to copyright law and Aboriginal cultural expression.
Among other things, Mr M claimed that Mr Bulun Bulun held the copyright in the painting ‘on trust or alternatively as a fiduciary for Mr M and the Ganalbingu people’.141 His Honour found that Mr Bulun Bulun did not hold the artwork or copyright on trust for the Ganalbingu people due to, among other things, customary law allowing Mr Bulun Bulun to sell his work and keep the profits himself. This fact was interpreted by Justice Von Doussa as being inconsistent with the intention to create a trust.
The Court also considered whether Mr Bulun Bulun owed a fiduciary duty to the Galanbingu people as the creator and copyright owner of the work. In this regard, it was particularly
137 Minding Culture Report (n 47) 20. 138 Bulun Bulun, John and Another v R & T Textiles [1998] FCA 1081 (‘Bulun Bulun’). 139 Mr Bulun Bulun’s work ‘Magpie Geese and Water Lilies at the Waterhole’ was subject to an earlier action where work was copied without Mr Bulun’s Bulun’s consent and reproduced onto T-shirts by Flash Screenprinters. In 1989, Mr Bulun Bulun commenced an action under the Copyright Act 1968 (Cth) and then Trade Practices Act 1974 (Cth), however that matter was settled prior to the hearing commencing. 140 Bulun Bulun (n 138). 141 Minding Culture Report (n 47) 59. 36 relevant that the artwork ‘contained ritual knowledge that was of great importance to members of the Ganalbingu people’142. Justice Von Doussa noted that while Mr Bulun Bulun was entitled to create and use the artwork for his own benefit, he was still required under customary law ‘to refrain from taking any steps which might harm the communal interests’143 of the Ganalbingu people in the artwork. Having found that a fiduciary relationship existed between Mr Bulun Bulun and his people, Justice Von Doussa considered that equity imposed on Mr Bulun Bulun, as the fiduciary, an obligation not to use the work in a way that is inconsistent with the law and custom of the Galanbingu people and to take steps to remedy any copyright infringement.
While the recognition of equity did not extend to the Galanbingu’s equitable interest in copyright in the work, in the event of Mr Bulun Bulun breaching his fiduciary duty, there existed a right in personam to bring an action to enforce the fiduciary obligations. Justice Von Doussa considered that ‘Mr Bulun Bulun had fulfilled this obligation by taking legal action’144 against R & T Textiles. Therefore, there was no requirement for equity to provide any additional remedy to the Ganalbinugu people as the beneficiaries of the fiduciary relationship. The case set a precedent by recognising that copyright owners have fiduciary obligations to use their copyright works in accordance with customary law obligations.
Finally, on the issue of whether the common law can recognise communal title directly in an artist’s work, Justice Von Doussa noted that: to conclude that the Ganalbingu people were communal owners of the copyright in the existing work would ignore the provisions of section 8 of the Copyright Act, and involve the creation of rights in indigenous peoples which are not otherwise recognised by the legal system of Australia.145
This view confirmed the legal position that the current Copyright Act does not recognise communal ownership of copyright in a work. As set out above, the Carpets Case was integral in testing the bounds of copyright law and equity as applied to the creation and use of Aboriginal cultural expression.
142 Ibid. 143 Ibid 35. 144 Ibid 60. 145 Bulun Bulun (n 138) 16. 37
2.4 Past government inquiries into Indigenous Intellectual Property In addition to the development of case law in this area, there has been bureaucratic inquiry over the years into Aboriginal and Torres Strait Islander peoples’ intellectual property rights. A brief overview of such developments is set out below in order to give insight into the lead up to the 2017 Inquiry. The review of past inquiries also highlights that many of the same issues and recommendations have been identified as important for several years without significant reform.
Report of the Working Party on the Protection of Aboriginal Folklore (1981) In 1973, the first National Seminar on Aboriginal Arts resolved that the Aboriginal Arts Board of the Australia Council commence pathways to ‘enable each tribal body to protect its own particular designs and works and to strictly control the use of them by non-Aboriginals’.146 This led to the establishment of the Working Party on the Protection of Aboriginal Folklore (Folklore Working Party). The Folklore Working Party recommended a new law ‘to establish an Aboriginal Folklore Board and Commissioner for Folklore to make determinations about uses of Aboriginal cultural items’.147 The draft law and other recommendations from the Folklore Working Party were not implemented. Further, while the term ‘folklore’ is used in international contexts, concerns were raised about its use particularly as the term was used by colonisers to categorise Indigenous culture as subordinate to their own.148
Report of the Review Committee on the Aboriginal Arts and Crafts Industry (1989) In 1989, an inquiry was held into the Aboriginal arts and craft industry, with a particular focus on the commercial viability of the industry. Among other things, the review found there were many Aboriginal manufacturing enterprises catering to the tourist industry. Such businesses received initial government support and training, but support dwindled once products were created, which impacted the ongoing sustainability of the businesses.149 In the report there was
146 Michael Davis, Indigenous Peoples and Intellectual Property Rights (Research paper 20, Social Policy Group, 1996-1997) 19
Creative Nation Cultural Policy (1994) The first cultural policy formally developed by a Commonwealth government was in 1994 titled ‘Creative Nation’. The policy drew focused on the inadequate protection of Aboriginal and Torres Strait Islander peoples’ intellectual property rights within existing laws. Among other things, the policy committed to government ‘fully supporting Indigenous people in their efforts to retain their material, intellectual and spiritual heritage’150 and that any measures to address such issues should be consultation with Indigenous communities.151
Issues Paper on ‘Stopping the Rip Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples’ (1994) The Stopping the Rip Offs Issues Paper provided an opportunity for the public to comment on how the government could improve legal protection for Aboriginal and Torres Strait Islander arts and cultural expression.152 Some of the questions posed to the public were: ‘What should happen if an artist, musician or dancer from outside your community uses the traditional images, designs, songs or dances of your community without its permission?’ and ‘How do you think Aboriginal and Torres Strait Islander arts and cultural expression should be protected by the Australian legal system?’ The Stopping the Rip Offs Issues Paper outlined problems in protecting Indigenous Intellectual Property and expanded on recommendations in the Creative Nation policy.153 Most of the submissions made by Indigenous people in response to the Stopping the Rip Offs Issue Paper called for specific legislation to cover all aspects of ICIP rights.154 Many submissions also noted that more work needed to be done in the education of Indigenous people in relation to copyright and ICIP rights.155
150 Commonwealth Government, Creative Nation: Commonwealth Cultural Policy, October 1994 (Policy document, Heritage – Our Past Our Future, 1994)
Our Culture Our Future Report (1999) In 1997, a discussion paper titled ‘Our Culture Our Future’ was released identifying a range of issues and proposed solutions raised in previous government inquiries including the Stopping the Rip Offs Report. After extensive consultation, the Our Culture Our Future Report was released in 1999 in an effort to develop practical reform proposals to recognise and protect ICIP rights. The Our Culture Our Future Report is a comprehensive document discussing the nature of ICIP rights, how far existing laws protect such rights and proposed solutions which include both legislative responses and policies and protocols.156 It is a document that provides much guidance and approaches to address ICIP rights, including stand alone legislation, reform of existing legislation, cultural infrastructure and education.157
Despite the extensive work and effort undertaken in the above named inquiries and reports, the actions have not led to substantive changes to the intellectual property laws in favour of ICIP rights and recognition.158 Consideration of past inquiries and reports also demonstrates how this current thesis adds to an existing body of work.
2.5 The United Nations Declaration on the Rights of Indigenous Peoples Author, Jane Anderson reflects that judicial developments in relation to Aboriginal cultural and intellectual property puts Australia at the forefront internationally in the area of copyright recognition and protection.159 Given the continued prevalence of Inauthentic Art and Craft and the lack of any legislative reform since the early copyright cases and inquiries, it is appropriate to question the extent to which Australia is leading the way internationally. This is particularly the case where Australian domestic laws remain fragmented and unable to offer unique and robust recognition of Aboriginal cultural expression and associated rights.
156 Janke and Michael Frankel and Company (n 100) xvi. 157 Terri Janke and Company, New Tracks: Indigenous Knowledge and Cultural Expression and the Australian Intellectual Property System (Issues Paper, response to: Finding the Way: a Conversation with Aboriginal and Torres Strait Islander Peoples, conducted by IP Australia and Office for the Arts, 31 May 2012)
For decades, Aboriginal and Torres Strait Islander people have sought increased autonomy within the structures of the Australian state, which is referred to as the concept of ‘self- determination’.160 The rights in self-determination include everything from the right not to be discriminated against, the right to enjoy culture, lands and seas, the right to be economic self- sufficient, involved in decision making processes that impact upon Aboriginal and Torres Strait Islander lives and the right to govern and manage our own affairs and communities.161 The Our Culture Our Future report listed a range of rights that Aboriginal people sought to have instated including ‘the right to own and control Indigenous cultural and intellectual property (self- determination)’.162
Janke advocates that self-determination is the key concept relating to ICIP rights.163 In this context, it is articulated as the right of Indigenous people to own, control and manage their own ICIP, including the right and duty of Aboriginal and Torres Strait Islander people to maintain and develop their cultures, knowledge systems and social organisation.164 Janke highlights that the concept of self-determination is also an international concept, that all peoples have the right to be in control of their own destinies equally.165
In that regard, Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that Indigenous people have the right to self-determination. While the UNDRIP does not define self-determination, Janke cites Anna Cowan who identifies two key elements of the concept being ‘meaning participation in decision-making and freedom from discrimination’.166 Similarly, Article 31 of the UNDRIP identifies the right of Indigenous people to maintain and protect their cultural expressions and knowledge and control the intellectual property associated with such culture. The ability to ‘control’ is linked to self- determination and the 2017 Inquiry evidence of Aboriginal and Torres Strait Islander people about the lack of control they face in relation to their cultural expression when Inauthentic Art and Craft is allowed to proliferate. Arguably, Inauthentic Art and Craft can be viewed as
160 Larissa Behrendt, ‘Indigenous Self-Determination in the Age of Globalization’ (2001) 3 Balayi: Culture, Law and Colonialism 1, 2. 161 Ibid 2. 162 Janke and Michael Frankel and Company (n 100) xx. 163 Janke (n 3) 31. 164 Ibid 34. 165 Ibid 31. 166 Anna Cowan, ‘UNDRIP and the Intervention: Indigenous Self-Determination, Participation and Racial Discrimination in the Northern Territory of Australia’ (2013) 22(2) Pacific Rim Law and Policy Journal 247, cited in Janke (n 3) 32. 41
denying Aboriginal people the right to exercise self-determination as decision making around their culture and cultural expression is removed from their control.
When considering such evidence, there are stark differences between the recognition of rights and principles embedded in the UNDRIP at the international level compared to the circumstances Aboriginal and Torres Strait Islander people experience domestically when they have no decision making ability or control over the way in which their cultural expressions are legally exploited without their consent. While Australia endorsed the UNDRIP in 2009, it is yet to enact laws or policy that reflect the UNDRIP at a domestic level.167 Despite this, the UNDRIP should be used to influence government and policy makers to inform reforms.168 Outside of UNDRIP enactment and law and policy influence, Janke also notes that the management and use of ICIP through protocols can provide self-determination to Indigenous people.169
Given the difficulties with existing legal frameworks some of which identified above, it follows that many have sought to address the deficiencies in law by recognising and managing Aboriginal cultural expression through protocols, contracts and codes.170 Protocols are widely used to increase awareness of issues, understand consent concepts and set minimum standards for acceptable behaviour when dealing with Indigenous knowledge in addition to addressing issues of respecting Indigenous culture and rights and self-determination.171 Such strategies have been employed to establish best practice guidelines for the recognition, use and reproduction of Aboriginal cultural expression.172 In a practical sense, non-Indigenous artists who copy Indigenous art and themes are acting inconsistently with nationally recognised cultural protocols.173 For Aboriginal people, the need to legally assert their rights over cultural expression is motivated by the obligation to protect and maintain the integrity of that expression.174 This is of great importance, as the ability to exercise and control such cultural rights is inextricably linked to Aboriginal peoples’ identity and the physical and spiritual
167 Janke (n 3) 33. 168 Ibid. 169 Ibid 32. 170 Janke and Sentina Discussion Paper (n 1) 7. 171 Minding Culture Report (n 47) 96. 172 Janke and Sentina Discussion Paper (n 1) 7. 173 Terri Janke, ‘Ensuring Ethical Collaborations in Indigenous Arts and Records Management’ (2016) 8(27) Indigenous Law Bulletin 17, 18. 174 Kimberley Weatherall, ‘Culture, Autonomy and Djulibinyamurr: Individual and Community in the Construction of Rights to Traditional Designs’ (2001) 64(2) Modern Law Review 215, 222. 42
connection to ancestors, family and country.175 The evidence given by Aboriginal people in the early copyright cases and more recently in the 2017 Inquiry articulate and demonstrate these unbroken connections to ancestors, family and country and given their importance, the critical need to obtain and enforce legal rights and control over such cultural expressions.
2.6 The application of Australian Consumer Law to Inauthentic Art and Craft Given the discussion in this Chapter around the limitations of existing intellectual property laws to protect Indigenous cultural expressions, it is necessary to analyse other areas of law, like the Australian Consumer Law (ACL) and consider whether such law can offer protection. For the purposes of this thesis, a consideration of the current form of the ACL as a distinct part of the Competition and Consumer Act 2010 (Cth) (CCA) is necessary in the absence of sui generis legislation that deals specifically with the protection and enforcement of Aboriginal and Torres Strait Islander cultural expression. Without specific comprehensive legislation, it is anticipated that the application of the existing ACL is likely to expose deficiencies as to the extent of protection offered by the law.
The limits of the ACL are tested in the context of analysing previous ACCC investigations, the Dreamtime Creations Case and the more recent Birubi Decision and Birubi Penalty Case. The analysis of cases is intended to demonstrate how Courts over time have grappled with the existence of Inauthentic Art and Craft within the bounds of existing law. Aside from the legal issues, the proceedings are considered in terms of how Courts have conceptualised Aboriginal cultural expression and Inauthentic Art and Craft. The views held by the Courts and parties to the cases will be drawn from the judgments and viewed through a colonial lens.
The identification of how Australian Courts have interpreted Aboriginal cultural expression in the context of existing laws establishes the basis upon which Inauthentic Art and Craft is considered from a legal perspective. This is considered in light of Anderson’s criticisms of how the early Aboriginal copyright cases have not transpired into meaningful reform, particularly
175 Terri Janke and Peter Dawson, New Tracks: Indigenous Knowledge and Cultural Expression and the Australian Intellectual Property System (Issues Paper commissioned by the Australia Council for the Arts, Aboriginal and Torres Strait Islanders Arts Board, 31 May 2012) 10. 43
in relation to ‘the interpretation of what the problem is, the identification of the problem as cultural/legal and the proposal and development of legislative remedies’.176
In terms of analysing the legal solutions to address Inauthentic Art and Craft, this thesis is focused on the application of the ACL. By way of background, the ACL is contained within Schedule 2 of the CCA. The purpose of the CCA is to enhance the welfare of Australians by promoting fair trading and competition, and through consumer protection provisions.177 Within that vein, the ACL itself addresses a range of areas relating to businesses and consumers, including but not limited to misleading and deceptive conduct, unconscionable conduct, unfair practices and country of origin representations. The ACL is administered by the Australian Competition and Consumer Commission (ACCC) and State and Territory consumer agencies and enforced by all Australian Courts and tribunals.178
I briefly consider previous actions by the ACCC and Courts against businesses in relation to Inauthentic Art and Craft in order to frame and understand the application of the now repealed TPA.179 As the regulator, the ACCC has investigated, commenced and settled several cases in the context of misleading and deceptive conduct and the use of Aboriginal cultural expression on art and craft products, some of which are briefly addressed below.
Nooravi Case In 2008, Mr and Mrs Nooravi (Nooravi), through their art gallery and website ‘Doongal Aboriginal Art and Artefacts’ engaged in misleading and deceptive conduct. Justice Logan agreed to consent orders put forward, where Nooravi acknowledged that they had breached section 52 of the now repealed TPA by engaging in conduct that was misleading or deceptive.180 The breaches related to the promotion and sale of artworks, boomerangs, spear throwers and ceramics as authentic, when in fact the items were created by non-Indigenous artists.181 Certificates of authenticity bearing the words ‘Certificate of Authenticity of Original
176 Anderson (n 130) 589. 177 Section 2 Competition and Consumer Act 2010 (Cth). 178 Australian Competition and Consumer Commission, ‘About us’, Legislation (Web page, 2 October 2019)
Aboriginal Art’ had been affixed to items that had been made by non-Indigenous people.182 Injunctions were granted by consent, restraining Nooravi for a period of five years from engaging in similar conduct.183 Nooravi were required to write to the purchasers of the artworks in question advising them of the Court proceedings,184 and were ordered to pay the ACCC’s costs of approximately $7,500.185 The consent orders were agreed to by the parties to avoid a disputed hearing in the Court.
Mayvic Case In 2010, the ACCC raised concerns with wholesaler Mayvic Pty Ltd (Mayvic) about Aboriginal rock art magnets sold as ‘Authentic Aboriginal Art’.186 The ACCC was concerned that promoting the product in such a way was likely to create the impression that the product was an authentic Aboriginal work when that was not the case.187 Mayvic acknowledged that its conduct would likely breach the now repealed TPA188 and withdrew the magnets from sale.189
The ACCC chairman at the time, Graeme Samuel said that ‘Promoting imitation Aboriginal artworks as authentic undermines the Indigenous art industry and impacts on the income of many Aboriginal artists’.190 Samuel elaborated: Authenticity is a key concern for buyers of all forms of Aboriginal art. Whether businesses are selling expensive fine artworks, small souvenirs or magnets, they must ensure that claims of authenticity are accurate, honest and truthful. It is crucial for Aboriginal artists to be able to differentiate their works from imitations and imported products that are not authentic. Consumers also need to be confident they are getting genuine Aboriginal art when they are purchasing products promoted as being authentic.191
182 Ibid 3. 183 Ibid 4. 184 Ibid 7. 185 Ibid 9. 186 Australian Competition and Consumer Commission, ‘Media releases’, Wholesaler Withdraws ‘Inauthentic’ Aboriginal Rock Art Magnets From Sale (Web Page, 5 October 2019) https://www.accc.gov.au/media- release/wholesaler-withdraws-authentic-aboriginal-rock-art-magnets-from-sale (‘Mayvic Case’). 187 Mayvic Case (n 186). 188 Now referred to as the Competition and Consumer Act 2010 (Cth). 189 Mayvic Case (n 186). 190 Ibid. 191 Ibid. 45
While the former Chairman’s comments acknowledge the financial impacts on Aboriginal artists, they do not suggest an absolute prohibition on Inauthentic Art and Craft as a solution to the problem, only that Inauthentic Art and Craft should not be mislabelled. This is reflected by the former Chairman identifying the need for there to be a distinction between authentic and inauthentic products in the market. This thesis argues it is not only imitation Aboriginal artwork being represented as authentic that impacts the income of artists, but also imitation Aboriginal artwork that make no or vague claims of authenticity, with impacts from a cultural perspective.
Overall, the comments by the former Chairman suggest there is an accepted space for Inauthentic Art and Craft to exist in the Australian market, provided the item is clearly identified as ‘inauthentic’ or gives no clear representation as to the products authenticity. The view that there is potentially space for the Inauthentic Art and Craft in the Australian market is not shared by the majority of Aboriginal and Torres Strait Islander people who provided submissions to the 2017 Inquiry. Such views are discussed in Chapters 4 and 5 of this thesis.
Delgiacco Case In 2012, Angela Delgiacco trading as Alice Sundown Aboriginal Art provided the ACCC with court-enforceable undertakings after making false or misleading representations about Aboriginal artwork sold on eBay.192 Ms Delgiacco created a Certificate of Authenticity that falsely attributed the name of an artwork as ‘Women’s Hairstring Ceremony’, which Ms Delgiacco gave to the work based off an internet search of common names for paintings by a well-known central desert artist. This was done instead of obtaining from the actual artist the name and date of the artwork. The undertaking stated that a title given to an Indigenous artwork is important because it ‘represents the cultural story/dreaming depicted in the artwork’.193 Such conduct was carried out by Ms Delgiacco in order to make the artwork appear culturally significant and more appealing to consumers for purchase, rather than seeking to properly attribute the artist as generally required by law. Ms Delgiacco agreed the conduct contravened
192 Australian Competition and Consumer Commission, ‘Undertaking to the Australian Competition and Consumer Commission given for the purposes of section 87B’ (Undertaking, 12 September 2019).
the now repealed TPA194 and for a period of three years agreed not to produce a certificate of authenticity for artwork which contained false or misleading information.195
The above three actions, taken by the ACCC, demonstrate the limitations of the ACL only being able to address Inauthentic Art and Craft in the context of misleading and deceptive conduct.196 As noted earlier in this Chapter, if no misleading or deceptive conduct exists under the ACL, Inauthentic Art and Craft is permitted to be manufactured and sold in Australia. At a practical level, this means that Aboriginal ‘style’ products are permitted to be manufactured and sold in Australia without the involvement or consent of an Aboriginal person, provided consumers are not mislead as to the authenticity of the product. This represents a gap in the current law which continues to have a negative impact on the livelihoods of Aboriginal and Torres Strait Islander artists in the pursuit of their cultural and art business practices. Arguably, the impacts felt by Aboriginal and Torres Strait Islander artists and communities have been exacerbated and compounded over time due to the prolonged life that Inauthentic Art and Craft has been afforded in the market due to the grey area of the consumer law. In light of the ongoing impacts articulated by Aboriginal and Torres Strait Islander artists, it is interesting to note the limited action taken by the ACCC in this area since 2008. This is despite ‘conduct impacting Indigenous Australians’ being an ‘enduring priority’ of the ACCC in recognition of conduct being ‘so detrimental to consumer welfare and the competitive process that the ACCC will always regard them as a priority’.197
2.7 Dreamtime Creations Case In 2009, Justice Mansfield found that Dreamtime Creations, a non-Indigenous business owned and directed by Mr Tony Antoniou, misled consumers by making false and misleading representations about artwork being made by an Aboriginal person when they were in fact made by a non-Indigenous person. For a period of time in 1992, Mr Antoniou engaged Aboriginal artist, Mr Bruce Harris, to paint items including ceramics, boomerangs and didgeridoos.198 The artwork style employed by Mr Harris included Aboriginal cross-hatching
194 Now referred to as the Competition and Consumer Act 2010 (Cth). 195 Delgiacco Case (n 192) 2. 196 Australian Competition and Consumer Commission, ‘About us’, Compliance and Enforcement Policy and Priorities (Web Page, 20 September 2019) https://www.accc.gov.au/about-us/australian-competition-consumer- commission/compliance-enforcement-policy-priorities (‘ACCC priorities’). 197 ACCC priorities (n 196). 198 Australian Competition and Consumer Commission v Australian Dreamtime Creations Pty Ltd [2009] FCA 1545, 5 (‘Dreamtime Creations Case’). 47 style and he labelled works with the name ‘Ubanoo Brown’ to identify himself as the artist.199 Dreamtime Creations promoted and sold the artwork painted by Mr Harris under the name Ubanoo Brown.200
In 2003, Mr Antoniou engaged Mr Greg Goodridge, a non-Indigenous artist, to paint artworks for Dreamtime Creations.201 Mr Goodridge painted artworks for Dreamtime Creation in Aboriginal ‘style’, including items in the cross-hatching style.202 Dreamtime Creations imported shipping containers from Indonesia containing carved wood items including birds, statutes, didgeridoos, boomerangs, shields and clapsticks and Mr Goodridge painted the majority of the items in the shipment in Aboriginal style art.203 The ACCC alleged Dreamtime Creations made six false or misleading statements contrary to the now repealed TPA204 that: 1. Dreamtime Creations promoted and sold artworks which have Ubanoo Brown written on the artwork when in fact they were painted by Mr Goodridge. 2. Dreamtime Creations supplied Certificates of Authenticity in relation to artworks that had the words Ubanoo Brown on them, which were in fact artworks painted by Mr Goodridge. 3. Dreamtime Creations affixed stamps to items including those painted by Mr Goodridge which read: • ‘TRADITIONAL HAND PAINTED ABORIGINAL ART AUSTRALIA’ • ‘AUSTRALIAN DREAMTIME CREATIONS STH AUSTRALIA’ • AUTHENTIC ORIGINAL ABORIGINAL ART AUSTRALIA’. 4. Dreamtime Creations stated on its website that artworks were made by an Aboriginal person and/or Ubanoo Brown when the majority of works were in fact painted by non- Indigenous artist, Mr Goodridge. 5. Dreamtime Creations represented through its website that the country of origin of the carved wooden items was Australia (when in fact it was Indonesia). 6. Dreamtime Creations represented on eBay that a particular carved wooden bird was painted by an Aboriginal person and the country of origin was Australia (when in fact it was made in Indonesia and painted by non-Indigenous artist Mr Goodridge).205
199 Ibid 6. 200 Ibid. 201 Ibid 7. 202 Ibid. 203 Ibid 8. 204 Now referred to as the Competition and Consumer Act 2010 (Cth). 205 Dreamtime Creations Case (n 198) 11. 48
The ACCC’s view was that a consumer upon seeing the representations would believe that the products were painted by an Aboriginal person or by artist Ubanoo Brown and were from Australia.206 Dreamtime Creations went to considerable lengths to emphasise the impression that the artwork offered for sale was made by an Aboriginal person, including by providing customers with Ubanoo Brown’s ‘Dreamtime story’ or ‘bush tucker dreaming story’ when purchasing an item painted by Mr Goodridge and stating on its website that ‘Certificates of Authenticity issued with every print’.207
At law, whether a representation is likely to mislead or deceive is an objective question of fact, to be determined in all the circumstances.208 When considering this test, the Court made reference to the Bush Friends Australia Case209 where Bush Friends Australia was a wholesaler of koala soft toys. The koala had a label attached to it with the words ‘Aussie Born’, ‘Made in Australia’ and accompanied by smaller words ‘With Some Imported Components’. While the soft toys were designed in Australia, components of the toy were manufactured in China and put together in Australia. In that case, the labels were found to be misleading because: While it should not be assumed that purchasers are ‘extraordinarily stupid’ neither should it be assumed that purchasers of products such as toy koalas will be scrupulous to analyse the nuances of the language the trader has chosen to use on labels attached to the merchandise…The meaning conveyed by the labels will be assessed by construing the language employed, but will take account of such factors as the prominence given to particular slogans or phrases, the nature of the product itself and the expectations and likely understanding of consumers.210
Under the Agreement on Trade-Related Aspects of Intellectual Property Rights, Australia is required to provide a mechanism for the protection of geographical indicators, such as well- known marks like ‘Australian Made’ when they are attached to products.211 A geographical indicator identifies a product as originating in a specific region where a particular quality,
206 Ibid 12. 207 Ibid 13. 208 Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136. 209 QDSV Holdings Pty Ltd (trading as Bush Friends Australia) v Trade Practices Commission (1995) 59 FCR 301 (‘Bush Friends Case’). 210 Bush Friends Case (n 209) 309. 211 For wine or grape products, the protection mechanism is through the Australian Grape and Wine Authority Act 2013 (Cth) and for all other products through registration of the geographical indicator as a certification trade mark under the Trade Marks Act 1995 (Cth), see IP Australia, Certification trade marks and geographical indications (GIs) (online at 10 November 2019) [2]. 49
reputation or other characteristic of the product is attributable to that geographic origin.212 The attributes of such products may come from a strong reputation developed in the region for producing a particular good of certain quality.213 There are rules attached to the use of the geographical indicators which producers of such products must follow, providing consumers with an assurance they are purchasing a product with a particular level of quality.214 False use of geographical indicators deceive consumers into believing they are purchasing products originating from a specific geographical area, which may also possess a level of reputation due to that place of origin.215 Legitimate producers of such products from those actual geographical regions are also impacted by having to compete with business who use false geographical indicators, causing harm to the reputation of the genuine products.216
In the Bush Friends Case, the Court found that words like ‘Made in Australia’ are used to get the attention of consumers, particularly where such words are attached to an ‘Australiana’ type product that is not expensive. Further, because consumers buying cheaper products are likely to give less attention to reading labels in detail, such noticeable phrases like ‘Made in Australia’ are important in creating an impression to a consumer.217
In considering purchasers who were international tourists with limited English, the use of the phrase ‘Made in Australia’ in the Bush Friends Case was significant in establishing the belief that the manufacturing process of koalas actually took place in Australia.218 In that case, Justice Sackville observed that ‘A consumer unable or unwilling to do more than glance at the label would be even more likely to form these beliefs’.219 The label referring to ‘Australia’ and the iconic Australiana type product, such a koala, was identified in the Bush Friends Australia case as being influential in purchasers identifying and believing the product was in fact from Australia, even if purchasers made a quick glance at the product. Arguably, the same type of analogy can be drawn with the marketing and sale of Aboriginal style products due to the
212 IP Australia, Geographical Indications (Web page, 30 January 2019)
distinct and unique visual presentation of Aboriginal style art and products and the connection to Aboriginal people and Australia.
In the Dreamtime Creations case, Mr Antoniou’s defence was largely premised on his belief that there was a ‘world of distinction’ between Aboriginal fine art and souvenirs.220 Mr Antoniou explained that Aboriginal fine art are one-off works by Aboriginal people whereas souvenirs were not considered Aboriginal fine art. In Mr Antoniou’s view, anything that was hand painted was genuine and Aboriginal art.221 Further, because the name Ubanno Brown was a pseudonym, Mr Antoniou said he could add that name to works painted by Mr Goodridge without representing they were painted by an Aboriginal person.222 Interestingly, while there was a focus on the use of the pseudonym, its use does not change the fact of the Aboriginal style of painting which continues to give the impression that it is painted by an Aboriginal person.
Mr Antoniou called Ms Ivy Taylor, an expert in carving and sculpting who gave evidence that it was common practice for artists to use pseudonyms and that cross-hatching used by Aboriginal artists originated elsewhere and was not indicative of Aboriginal artwork.223 While it may be recognised that the cross-hatching technique has been used elsewhere, the cross- hatching technique or rarrk is also distinct to and has been ancestrally inherited by the people of Arnhem Land, Northern Territory.224 The images depicted by Aboriginal artists using rarrk include spirit figures and creation stories. Ms Taylor took the opportunity to describe the ACCC investigation as a ‘gross miscarriage of justice’ which facilitated the ‘threats of a disgruntled person’.225 The views espoused by Ms Taylor are consistent with the position stated by Anderson that it is the dominant cultures in society that determine what is of value and how protection is to be afforded.226
Bowrey explores Anderson’s view further by asserting that exploitation of Aboriginal art has its roots planted firmly in the Australian colonial experience, indicative of past injustices and
220 Dreamtime Creations Case (n 198) 29. 221 Ibid. 222 Ibid. 223 Ibid. 224 Minding Culture Report (n 47) 76. 225 Dreamtime Creations Case (n 198) 35. 226 Anderson (n 130) 139. 51
unfair treatment of Aboriginal people, art and culture.227 Rather than viewing Inauthentic Art and Craft as an infringement of Aboriginal peoples’ cultural rights or a contravention of the law, Ms Taylor categorises and diminishes the issue as a ‘gross miscarriage of justice’, an action taken by the ACCC that is in her opinion, ultimately flawed and unfair.
In relation to the certificates of authenticity, Mr Antoniou argued that the certificates accurately represented Aboriginal art, on the basis that a person does not have to be Aboriginal in order to paint Aboriginal art.228 Arguably, Mr Antoniou’s understanding of what constitutes Aboriginal art could be interpreted as recognising only the physical end product art form and failing to comprehend the underlying knowledge and stories of ancestors, family and country that influence an artist’s cultural expression in the physical piece.229
Similarly, some collectors of Aboriginal art have shared observations in relation to Aboriginal cultural expression as an art form and the relevance of the underlying story or meaning of the work in a commercial context: In the end, no matter what anyone says, if you’ve got a painting hanging on the wall the only thing you’ve got to judge it by is the painting. If the painting isn’t any good, in that way that art is great or not great…no amount of blurb on the wall’s going to improve it.230
Further: We think it’s a pity people can hardly look at Aboriginal paintings without first saying ‘what’s the story?’ And we would like people to look at them, as you look at non-Indigenous art and say ‘this is a great painting’, because, say, it has fantastic visual impact, or it’s beautifully painted, or it’s beautifully colourful, or it’s illustrative of abstracted landscape mapping and that sort of thing. Rather than go straight to wanting to know what the underlying story is.231
Despite Mr Antoniou asserting there is a ‘world of distinction’ between Aboriginal fine art and souvenirs, his views and the views quoted above similarly place an emphasis on the importance of the visual nature of physical piece of as an art form. By contrast, Fisher suggests that the
227 Bowrey (n 58) 35. 228 Dreamtime Creations Case (n 198) 30. 229 Desart, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 87, 2 November 2017) 2 (‘Desart submission’). 230 Laura Fisher, Aboriginal Art and Australian Society: Hope and Disenchantment (Anthem Press, 1st ed, 2016) 115. 231 Fisher (n 230) 115. 52
meanings behind cultural expression can be an important part of promoting the artwork, in addition to educating non-Indigenous audiences about the continuation of custodial relationships with the land.232
In relation to the use of descriptions of ‘Aboriginal art’, Justice Mansfield rejected Mr Antoniou’s defence and said that the distinction Mr Antoniou was trying to draw between Aboriginal fine art and souvenirs was very artificial.233 Justice Mansfield explained: I am of the opinion that to describe an artwork as ‘Aboriginal’ is expressly to say that the artist is of Aboriginal descent. It is a common means of conveying that an artwork is painted by an artist of Aboriginal decent to describe it as ‘Aboriginal art’. On the other hand, it is not commonplace to describe an artwork painted by an artist who is not of Aboriginal decent as ‘Aboriginal art’.234 Further to describe a painting as ‘Aboriginal art’ is to convey that it is painted by an Aboriginal person or a person of Aboriginal descent. If that is not explicit, as I think it is, it is clearly implied.235
While Justice Mansfield notes that express references to ‘Aboriginal art’ in product descriptions are likely to be easily identifiable, implied representations require further consideration on a case by case basis to determine whether misleading and deceptive conduct has been made out. For example, where products containing visual Aboriginal ‘style’ expression are sold without clear descriptions of it being made or hand-painted by an Aboriginal person, it is unlikely to be considered misleading or deceptive under the ACL. Further, it is not a contravention of the ACL where products containing visual Aboriginal style expression are sold with labels such as ‘Made in China’ or ‘Made in Indonesia’ on the basis that consumers are not being misled about the origins or provenance of Aboriginal ‘style’ products. This is a gap in the legal responses to Inauthentic Art and Craft, which this thesis will interrogate further in the following Chapters.
If Dreamtime Creations had not sold the artwork labelled as Ubanoo Brown’s or made claims of authenticity, it would not have breached the ACL, permitting it to sell Inauthentic Art and Craft within the bounds of the law. Again, this represents a deficiency in the law which allows Inauthentic Art and Craft to exist and proliferate in the market, provided there are no misleading
232 Ibid 113. 233 Dreamtime Creations Case (n 198) 30. 234 Ibid 40. 235 Ibid. 53
claims about the authenticity or provenance of the product. This is a key aspect of the research that will be considered and explored in this thesis, with a view to addressing the gap in the law through law reform.
2.8 Conclusion This Chapter has provided a brief account of previous legal proceedings to understand the historical landscape upon which the exploitation of Aboriginal cultural expression has been considered by Courts. The account of previous intellectual property and Indigenous art cases demonstrates the successes and challenges that Aboriginal people have experienced under such laws when attempting to protect ICIP rights. The limitations of existing intellectual property laws have encouraged consideration of other laws, like the ACL to address Inauthentic Art and Craft.
This Chapter has considered the use of a variety of forms of intellectual property to protect Indigenous culture and cultural expression in Australia. Copyright law has been invoked in a number of actions involving the sale of art and craft products that incorporate Aboriginal cultural designs and expression without the consent of the relevant Aboriginal artist or community. The strengths of the copyright regime have been the recognition of copyright subsisting in artworks containing Aboriginal cultural expression236 and further, the acknowledgement that copyright owners have fiduciary obligations to use their copyright in accordance with customary law obligations.237 A weakness of this regime has been the inability of copyright law to recognise an Aboriginal community as communal owners of a copyright work. In this regard, there has been little progress in copyright law reform to address the concerns of Indigenous communities to recognise communal ownership and broader ICIP rights embedded in such works and expressions.
Increasingly, the ACL has been deployed to protect Indigenous art and craft products. In this Chapter I have considered previous actions by the ACCC and Courts against businesses in relation to Inauthentic Art and Craft to frame and understand the application of the ACL. There have been mixed results with the application of the ACL only being able to enforce actions were misleading and deceptive conduct exists, that is, where labelling or packaging on
236 Carpets Case (n 24). 237 Bulun Bulun (n 138). 54
Indigenous art and craft products makes false claims about the authenticity or provenance of such products. This means the application of the ACL is not effective in prohibiting Inauthentic Art and Craft where the products themselves make accurate representations as to their origins and authenticity, for example, ‘Made in China’ or ‘Made in Indonesia’. This approach similarly applies where products make no or vague claims of origin or authenticity. This represents a gap in the current ACL which allows Inauthentic Art and Craft to legally exist and proliferate in the Australian market.
There has also been experimentation with trademark law, with consideration of the unsuccessful Label of Authenticity. While the intent of using trade mark law through the Label of Authenticity was to provide consumers with the choice of purchasing products, the administrative burden on artists to engage with the trade mark scheme made it difficult to implement. The mixed bag of results in the law recognising Indigenous Intellectual Property and prohibiting Inauthentic Art and Craft is also exacerbated by Australia not yet implementing its obligations under Article 31 of UNDRIP.
The identification of the limitations of existing laws helps to formulate a model to address the research question ‘How can the law protect Aboriginal cultural expression from exploitation?’ This Chapter has revealed that proposed models for reform as discussed further in Chapters 6 and 7 of this thesis, should address the grey area of law that currently exists in the ACL. Doing so would also recognise and protect ICIP rights. Further, in considering the challenges of existing intellectual property laws and the ACL, this Chapter has raised different perspectives on the creation of works, cultural expression and Aboriginal art more broadly. Such perspectives identified in the cases appear to be influenced by the markets within which participants operate, including Aboriginal artists, non-Indigenous manufacturers and businesses selling Aboriginal art and crafts. This Chapter also positions Inauthentic Art and Craft as symptomatic of past and continuing injustices and treatment against Aboriginal and Torres Strait Islander people, art and culture.
55
Chapter 3
The Birubi Decision and the Birubi Penalty Case
3.1 Introduction This Chapter provides a critical, original analysis of a key new precedent in respect of the Australian Consumer Law (ACL) and Indigenous Intellectual Property. Such analysis is conducted in relation to the Birubi Decision in 2018 and subsequent Birubi Penalty Case in 2019. This Chapter explores the representations made by Birubi on a range of product lines containing Aboriginal style art. It also highlights the characteristics the Court considers important in finding whether such representations were made out under the ACL or not. The Birubi Penalty Case is also considered, particularly in light of the evidence of Dr Banduk Marika and the identified harms the Court treated as important when considering principles of general deterrence in imposing penalties against Birubi. The purpose of analysing the cases in this way is to examine how the ACL is applied to Inauthentic Art and Craft and identify the strengths and weaknesses of such application in recognising Indigenous Intellectual Property.
After the Dreamtime Creations case, it would be another nine years before the ACCC instituted and proceeded with an action of misleading and deceptive conduct against a business selling Inauthentic Art and Craft. The ACCC proceedings were instituted at a time when other developments were being made in relation to Inauthentic Art and Craft, including the commencement of the 2017 Inquiry, the increased attention of the Fake Art Harms Culture Campaign, and the 2018 Commonwealth Games on the Gold Coast, which prompted a range of investigative and spot checking activities by the Office of Fair Trading Queensland in Brisbane and Gold Coast souvenir and tourist hubs.
The Birubi Decision and subsequent Birubi Penalty Case highlights the different ways in which Aboriginal people and manufacturers of Inauthentic Art and Craft view and deal with Aboriginal cultural expression. For example, Aboriginal artists tend to view the creation and use of Aboriginal designs and artwork in a cultural responsibility context.238 This was exemplified in the evidence provided by Dr Marika in the Birubi Penalty Case who explained
238 Birubi Penalty Case (n 8) 52. 56
that ‘an Indigenous person’s right to produce specific designs is related to their connection to a specific place or country’.239 Such a right requires careful management to protect identity for future generations.240 This is compared to the evidence of Mr Ben Wooster, Director of Birubi, who selected and used Aboriginal cultural designs to ‘make a good product’ in a commercial context.241 It is evident from the Birubi Decision and Birubi Penalty Case that Aboriginal people, producers of Inauthentic Art and Craft and current laws hold opposing views about definitions and legitimate use of Aboriginal cultural expression.
In March 2018, the ACCC instituted proceedings in the Federal Court against wholesaler Birubi Art Pty Ltd (Birubi) for engaging in misleading and deceptive conduct in relation to five product lines containing ‘visual images, symbols and styles of Australian Aboriginal art’.242 Birubi supplied approximately 1,300 product lines to 152 retail outlets throughout Australia. The focus of the ACCC case brought against Birubi was the impact of representations upon consumers as opposed to retailers who purchased the products from Birubi. In the Birubi Decision, the Court found that Birubi breached certain provisions of the ACL over the period 1 July 2015 to 14 November 2017. The breaches in the Birubi Decision occurred by implied representations made by Birubi to the general public and consumers including international tourists whose familiarity with Aboriginal designs, art and cultural practice was limited.243
The implied representations made were about the ‘provenance and characteristics of five product lines sold to retailers’ which contained styles of Aboriginal art.244 The five product lines in question were loose boomerangs, boxed boomerangs, bullroarers,245 bamboo didgeridoos, and message stones (Products). The loose boomerangs, boxed boomerangs and bullroarers reproduced artwork designed by Trisha Mason who identified and was recognised by the Court as an Aboriginal artist pursuant to a 2014 royalty agreement between Ms Mason and Birubi. In total, the ACCC identified and Birubi conceded that over 18,000 of the Products
239 Birubi Penalty Case (n 8) 47. 240 Ibid 241 Birubi Decision (n 7) 44. 242 Ibid 1. 243 Ibid 75. 244 Ibid. 245 An object generally only used, heard and seen in particular ceremonial practices. 57
were supplied to retailers in Australia during the relevant period.246 The ACCC argued that Birubi stood to ‘gain financially’ from prospective purchasers being misled.247
It is anticipated that an examination of the ACL in the Birubi Decision and the Courts’ consideration of harms caused to Aboriginal artists in the Birubi Penalty Case, will reveal whether the ACL is effective at prohibiting Inauthentic Art and Craft and recognising ICIP rights. The analysis of the Birubi Decision and Birubi Penalty Case in this context is important to consider whether the ACL should form part of a model for law reform that addresses Inauthentic Art and Craft and ICIP rights.
3.2 ACL breaches in the Birubi Decision The specific breaches committed by Birubi fell under the following sections of the ACL:
• section 18 of the ACL which makes it an offence to engage in conduct that is misleading or deceptive or likely to mislead or deceive;
• section 29(1)(a) of the ACL which makes it an offence to make false or misleading representations that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;
• section 29(1)(k) of the ACL which makes it an offence to make false or misleading representations concerning the place of origin of goods; and
• section 33 of the ACL which makes it an offence to engage in conduct that is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability of purpose or quantity of any goods.
In the Birubi Decision, Perry J concluded that Birubi engaged in misleading or deceptive conduct by representing to consumers that ‘the loose boomerangs, boxed boomerangs, bullroarers, didgeridoos and message stones were hand painted by Australian Aboriginal people’.248 The implied representation that such products were ‘hand painted by Aboriginal persons was a false or misleading representation that the products were of a particular style or had a particular history’.249 The Court also found that Birubi engaged in conduct that was
246 Birubi Decision (n 7) 35. 247 Birubi Penalty Case (n 8) 85. 248 In contravention of section 18 and sections 29(1)(a) ACL. 249 Birubi Decision (n 7) 163. 58
‘liable’250 to mislead the public by inferring that the boxed boomerangs, didgeridoos and message stones were ‘hand painted by an Aboriginal person’,251 but did not find the same breach in relation to the loose boomerangs and bullroarers.
In that regard, Perry J was not persuaded that a person would be misled into thinking that the loose boomerangs were hand painted by an Aboriginal due to evidence submitted by Birubi. The evidence submitted was that the loose boomerangs stated ‘Art featured is from originals by Australian Aboriginal artist Trisha Mason’ which identified the product as a reproduction rather than an original piece of craftsmanship and in that case, an ordinary person would not assume the reproduction was painted by a person of any particular ethnicity.252 In addition, the label on the loose boomerangs stated ‘royalties are paid’ and Birubi argued that the ordinary person generally understands the implication of payment of royalties, being that they are paid when copies of an original artwork are reproduced and sold, which goes against the suggestion that it was hand painted by an Aboriginal person.253 Perry J came to the same conclusion with the bullroarers as it had the same labels and wording attached to it as the loose boomerangs.254 Such arguments relate to the method and display of a product being produced, rather than the content of the actual designs and artwork being used.
The Birubi Decision found that Birubi misled consumers by representing that ‘the loose boomerangs, boxed boomerangs, bullroarers, didgeridoos and message stones were made in Australia’,255 and made ‘misleading representations concerning the place of origin’ of the products.256 By way of example, the Court considered a product like the boxed boomerang in the following way:
250 In contravention of section 33 ACL, in the sense of ‘more likely than not’, as referred to by Perry J in Birubi Decision (n 7) 163. 251 In contravention of section 33 ACL. 252 Birubi Decision (n 7) 105. 253 Ibid 106. 254 Birubi Decision (n 7) 138. 255 In contravention of section 18 ACL. 256 In contravention of section 29(1)(k) ACL. 59
Front of boxed boomerang product
257
Label on left hand side
Label on right hand side
Back of boomerang inside box
257 Photographs of boxed boomerang taken from Birubi Decision (n 7) 118. 60
Back of boxed product
BIRUBI ART Pty Ltd Enlarged label on back of box 100% Australian owned
Suppliers of quality Australian souvenirs, genuine Aboriginal art, and the exclusive worldwide licensee for Aboriginal flag products. Birubi Art supports and promotes ethical dealings with all Aboriginal people.
Trisha Mason
A highly awarded Aboriginal artist, Trisha Mason is a descendent of the Kamilaroi tribe of eastern Australia. Trisha’s artwork reflects her love of her Aboriginal culture and ancestry. Trisha’s artwork is faithfully reproduced from originals onto a variety of quality products.
Royalties are paid.
In finding the boxed boomerang breached sections 18, 29(1)(a), 33 and 29(1)(k) of the ACL, Perry J considered the following features of the product:
• the boxed boomerang and its artwork is immediately recognisable as an Aboriginal object with characteristically Aboriginal artwork which naturally suggests a relationship between Aboriginal people and the production of the boomerang;258
258 Birubi Decision (n 7) 126. 61
• a consumer would be misled into thinking that the boxed boomerang was hand painted by an Aboriginal person, due to the following features, which conveyed a connection with Aboriginal culture and an impression of authenticity and provenance:
o the plaque on the stand where the boomerang is intended to be placed reads ‘handcrafted Australian boomerang’;259
o label on the box stating ‘[a]uthentic Aboriginal art with another large label emphasising that Birubi is ‘100% Australian owned’ and is a supplier of ‘quality Australian souvenirs, genuine Aboriginal art…’;260
o label on the box stating that ‘Birubi Art supports and promotes ethical dealings with all Aboriginal people; handmade; royalties are paid’. This appeared directly after references to ethical dealing with Aboriginal people which, in the eyes of the Court, suggested a link between the manufacture of the product and Aboriginal people. Perry J thought the impression of the connection is further strengthened by an image on the label of a person playing a didgeridoo, a widely recognised instrument traditionally played by Aboriginal people;261
o label on the box reinforcing the impression the boxed boomerang is painted and made by an Aboriginal person through use of words ‘100% hand painted’, a feature which a consumer would assume was emphasised because it increased the cultural value of the product;262
o there is no reference to the fact that the artwork is from originals by artist Trisha Mason, instead the large label on the box is a general statement about Trisha Mason’s artwork which again emphasises that Birubi promotes ethical dealings with Aboriginal people;
o the actual boomerang features the word ‘Australia’ in hand writing style and does not disclose it was made in Indonesia or mass produced.263
259 Birubi Decision (n 7) 127[1]. 260 Ibid 127[2]. 261 Ibid 127[3]. 262 Ibid 127[4]. 263 Ibid 127[7]. 62
3.3 The representations made by Birubi in the Birubi Decision
In taking into account all the relevant features as listed above, Perry J took the view that the overwhelming impression conveyed to the consumer by the boomerang itself, images, and representations made on the boomerang, its stand and packaging is that the boxed boomerang was made in Australia and was hand painted by an Aboriginal person.264 Perry J emphasised that even if a consumer assumed from the reference to ‘royalties’ that the boxed boomerang was a reproduction, the impression that the boxed boomerang was nonetheless hand painted by an Aboriginal person (and in that sense is ‘authentic’ and ‘genuine’) was so persuasive that a consumer is ‘likely’ and ‘liable’ to be misled into thinking that the reproduction was hand painted by an Aboriginal person.265 Perry J analysed the remainder of the Products in a similar way, taking into account the implied representations and the likely meanings that were conveyed to consumers. Throughout the judgment, there was a considerable amount of common ground or agreement between the ACCC and Birubi including that each of the Products were of a character culturally associated with Aboriginal people,266 the Products were manufactured in Indonesia and not in Australia, they were supplied by Birubi in Australia, not labelled to disclose the fact they were made in Indonesia267 and there was no evidence that anyone in Indonesia who was involved in the manufacture of Products identified as Aboriginal.268
It was also not in issue that the representations were not expressly made by Birubi, as the conduct was by implied representations only. The Court’s consideration of implied representations demonstrates the case by case consideration of the substance of Birubi’s implied representations in relation to Inauthentic Art and Craft. Arguably, implied representations can often be more difficult to make out as a conveyed impression or message, compared to express representations which are usually clearly written or spoken. I argue that the analysis of implied representations in the context of Inauthentic Art and Craft is an important step in testing the boundaries of the ACL, and in particular, how far the ACL can be extended to stop Inauthentic Art and Craft from existing in the market. Testing the boundaries
264 Ibid 128. 265 Birubi Decision (n 7) 7. 266 Ibid. 267 Ibid 1.2[10]. 268 Ibid 1.2[11]. 63
of the ACL in this context is particularly relevant where Inauthentic Art and Craft without any associated packaging or labelling conveys its own impression, including being made by an Aboriginal person. Arguably, this is because the specific use of artwork and visual styles associated with Inauthentic Art and Craft are immediately associated with Aboriginal people. This view was supported by Perry J where she observed that the boxed boomerang and its artwork is ‘immediately recognisable as an Aboriginal object with characteristically Aboriginal artwork which naturally suggests a relationship between Aboriginal people and the production of the boomerang’.269
The Birubi Decision was unable to test the full extent of implied representations and misleading and deceptive conduct, as the products were considered in the context of their associated packaging, use of words and labelling such as ‘genuine Aboriginal art’ and ‘authentic Aboriginal art’, rather than just the products themselves. In this regard, the limitations of the ACL support the call for law reform in this area to comprehensively protect and recognise the rights of Aboriginal artists and Indigenous Intellectual Property. In addressing the implied representations in the Birubi Decision, the ACCC argued that:
• aside from the message stones, all of the Products are objects known as traditional Aboriginal cultural objects;
• the artwork, symbols and/or designs reproduced on the Products are characteristic of Aboriginal artwork, symbols and designs; and
• there is no reference on the Products or their labels or packaging to the Products having been made in Indonesia.270
3.4 Birubi’s creation of Inauthentic Art and Craft Birubi denied that the ordinary consumer would draw the alleged inferences and said that consideration must be given to the way in which the Products were presented in the retail outlets and the characteristics of other products in those outlets and price placement products.271 The Court heard evidence from Mr Wooster about how he sourced and created the product lines, which gives particular insight into the process undertaken to actually create Inauthentic Art and
269 Ibid 126. 270 Ibid 80. 271 Ibid 1.2[12]. 64
Craft. In relation to the bamboo didgeridoos produced by an Indonesian supplier, Mr Wooster said: The specification when ordering the didgeridoos was very simple. I specify the length, blank material, that Aboriginal style be used and that each product had to have two Australian animals on it, one of them being a kangaroo. Based on the knowledge the Indonesian Supplier had acquired, they simply produced samples which I approved then made the didgeridoos in the quantity ordered.272
Mr Wooster confirmed that the message stones were also obtained from the Indonesian supplier and were hand painted by Indonesian artisans. Mr Wooster instructed the Indonesian supplier with the Aboriginal symbols to be used based on his own non-Indigenous understanding and meaning of the symbols. Mr Wooster elaborated on that particular process: I obtained the aboriginal symbols graphic from internet research (mainly Google) and simply printed them off when I saw a symbol which I thought would make a good product. To my understanding from the research I completed, the symbols were common symbols (similar to a hieroglyphic) which Aboriginal [persons] used to communicate in written form. They are not produced in the same way that the Trisha Mason products are produced but are based on the symbols I provided to the Indonesian Supplier obtained from the Internet.273
The copying of Aboriginal symbols and designs from the internet without any knowledge or understanding of the particular design, or involvement of an Aboriginal person, is comparable to the opinion of Mr Antoniou in the Dreamtime Creations Case where Aboriginal people were not required to be involved in the creation of Aboriginal art. Again, Mr Wooster’s action of selecting Aboriginal style symbols that he thought would ‘make a good product’ is demonstrative of Anderson’s position of dominant cultures deciding what is of value and significance.274 Mr Wooster’s treatment and use of Aboriginal symbols in this way is seemingly at odds with the parties’ agreed position that the objects the subject of the Birubi Decision were of cultural significant to Aboriginal people.275 Mr Wooster’s process for creating Aboriginal designs, artwork and products is also completely at odds with and disregards the request and reasoning articulated by Mr Marika in the 1970s about the importance of seeking permission to use Aboriginal designs and artworks.
272 Ibid 43. 273 Ibid 44. 274 Ibid. 275 Ibid 7. 65
3.5 The Birubi Penalty Case The penalty case against Birubi gives particular consideration to the cultural harms imposed on Aboriginal people and communities by Inauthentic Art and Craft. The evidence provided to the Court emphasised the ‘interrelationship between specific designs, personal identity and connection to country under Aboriginal lore and customs’, and how that is impacted through the existence of Inauthentic Art and Craft.276 For the purposes of this Chapter, the evidence relating to the cultural harms caused by Inauthentic and Art Craft will be given particular prominence in order to understand how Courts interpret and consider such cultural harms from a legal standpoint.
Shortly after the Birubi Decision was delivered by the Court, Birubi entered into voluntary liquidation.277 The ACCC sought and was granted leave to pursue penalty proceedings against Birubi in liquidation.278 Given the circumstances that had transpired with Birubi’s liquation, the ACCC asked the Court to order penalties against Birubi for the purpose of general deterrence, rather than seeking injunctions to stop Birubi’s conduct. The ACCC sought a penalty in the range of $2 million to $2.5 million on the basis that the breaches had consumer and market harms and in addition to economic, social and cultural impacts on Aboriginal people: Contraventions of this kind are serious, not only for their immediate potential to mislead consumers, but particularly for their potential to thereby undermine the integrity of the Indigenous arts sector. Such conduct puts at risk an array of economic and social benefits which are vital to Indigenous communities, particularly those in remote areas. It is also liable to cause offence and cultural harm to Australian Aboriginal persons. A strong deterrent message is therefore important to ensure that other would-be contraveners are not tempted to prioritise their own short-term profits over the risk of such harms...279
The ACCC argued that strong ‘deterrent penalties’ were ‘necessary to ensure that consumers are not misled, and consumer choices are not distorted’ in relation to the purchase of Aboriginal art and craft products in the souvenir market.280 This was particularly relevant in this case
276 Birubi Penalty Case (n 8) 34. 277 A voluntary liquidation is a self-imposed wind up and dissolution of a company that has been approved by the company shareholders. The purpose of a voluntary liquidation is to cash out of a business that does not have a viable future or which has no other purpose in remaining operational, see Adam Hayes, ‘Voluntary liquidation’, Investopedia (Web page 13 September 2019)
where ‘the misrepresentations were designed to enhance the cultural value and attractiveness of the products to potential purchasers’, which was likely to entice uniformed customers to prefer Inauthentic Art and Craft over those actually made by Aboriginal artists.281 It was also noted through evidence presented by the ACCC that the impact of such misrepresentations were particularly significant in this case due to the rapid growth of the Indigenous art and craft and souvenir industry over many years, which now generates revenue estimated between $300- $500 million per year.282 The ACCC submitted that a strong penalty was needed in order to stop businesses engaging in profit and risk analysis when considering dealing with Inauthentic Art and Craft and send a message that businesses breaching the ACL cannot gain a competitive advantage over other businesses who comply with their ACL obligations.283 Perry J relied on a range of affidavit evidence presented and ordered that in the circumstances a total penalty of $2.3 million against Birubi was appropriate.
The evidence of Dr Marika in the Birubi Penalty Case
The ACCC presented the Court with affidavits of a number of people, including Dr Banduk Marika AO who is a sister to the late Mr Marika quoted earlier in this Chapter. The Court heard that Dr Marika is a Rirratjinu woman of North North-East Arnhem Land and a cultural leader with over 40 years’ experience in making and supporting Aboriginal art. Dr Marika gave evidence about the cultural responsibilities and customs with respect to the creation of Aboriginal designs and artwork and highlighted the ‘consequences and impacts of misuse of such designs’.284 Dr Marika provided specific examples to which she could speak, including designs she had inherited from her family and parts of stories that she is permitted to depict according to her family’s cultural protocol. Dr Marika analogised that similar traditional protocols exist across Australia, ‘so that a person from another clan or part of Australia, such as Central Australia, would not use North-East Arnhem land designs without permission’, just as Dr Marika ‘would not use Central Australian designs without permission’ as she did not know or understand the laws government the use of those designs.285
281 Ibid 31. 282 Ibid 32. 283 Ibid 33. 284 Ibid. 285 Ibid 49. 67
The process for creating Inauthentic Art and Craft, as described by Mr Wooster in relation to didgeridoos and message stones, do not follow the customs and protocols outlined by Dr Marika. Further, and as described by Mr Wooster, the purpose of him selecting and using particular Aboriginal designs and symbols was to make ‘a good product’,286 rather than for the purpose of respectfully promoting the cultural meanings and responsibilities attached to the use of such designs by Aboriginal people. From Dr Marika’s perspective, the consequence of people using such designs without permission is that such designs are misused ‘because they do not know the lores, the country or the songlines that relate to the design and are not worthy or initiated to use the design. Songlines are narratives that are used to describe the stories and activities of our ancestors’.287
Dr Marika said that ‘it would be entirely inappropriate for a person to use a design which did not belong to them, whether they were a person from a different clan or the same clan, or were a non-Indigenous person’.288 This is relevant to the creation and manufacture of Inauthentic Art and Craft where there is no involvement or consent of an Aboriginal person in the creation of such artworks and products. Dr Marika elaborates: The impact of the misappropriation of art in a meaningless way that does not represent lore and culture is the dismantling of Indigenous cultural heritage. Indigenous Australians have, as described above, their own rules about their people and their country. Art identifies who you are and how you fit into Indigenous society. Misappropriation of art dismantles the cultural structure of Indigenous communities and causes damage to our identity.289
The evidence provided by Dr Marika identifies the reasons why Inauthentic Art and Craft has negative cultural impacts on Aboriginal people and communities due to the connection to identity and culture.
Dr Marika’s evidence in the Birubi Penalty Case highlights the different approaches to Aboriginal designs and artwork depending on the lens through which the issue is viewed. From the perspective of Dr Marika, the misuse of Aboriginal designs and artworks, without permission and in the form of Inauthentic Art and Craft, contravenes Aboriginal laws and customs that exist around the use of such designs. However, under Australian law the use of
286 Birubi Decision (n 7) 44. 287 Birubi Penalty Case (n 8) 50. 288 Ibid. 289 Ibid 52. 68
Aboriginal designs and artwork without permission is permitted provided there is no breach of copyright and no misrepresentations being made about the authenticity or provenance of such work. Conduct that is clearly in breach Aboriginal law and custom is permitted to exist to the detriment of Aboriginal artists and communities in accordance with Australian law. This inconsistency demonstrates a gap in perspectives and law, which this thesis attempts to address.
The ACCC noted that Dr Marika’s evidence in the Birubi Penalty Case went to the question of general deterrence because it demonstrates the kinds of risks that may follow when Aboriginal art and designs are presented as authentic when they are not.290 The Court recognised that the insult and harm which such misuse may cause and the consequences under Aboriginal law and custom were not matters to be considered when assessing penalties, as they were not factors which relate to Birubi’s conduct of misrepresenting the products as being made in Australia and hand painted by an Aboriginal person.291 Dr Marika’s evidence highlights the stark reality that while Inauthentic Art and Craft may be permitted and allowed to proliferate in under existing Australian laws, it most certainly infringes Aboriginal law and customs.
Penalties in the Birbui Penalty Case After weighing up the evidence, Perry J imposed the following penalties for each product line in question by indicating the key factors which warranted higher penalties than others. Firstly, the didgeridoos were the most serious of the contraventions as the product itself and ‘labelling conveyed a misleading impression of an ‘overwhelming’ kind’.292 The didgeridoos had the highest volume of sales at 19,472 with an extended sale period of two years..293 Given the need to impose ‘a strong message of general deterrence’, Perry J imposed a penalty of $700,000.294
Secondly, the boxed boomerangs, their labelling and packaging conveyed an ‘overwhelming impression’ that they were ‘made in Australia and hand painted by an Aboriginal person’ which was liable to mislead consumers.295 Over the two period, there was a lower volume of sales compared to the didgeridoos, with the boxed boomerangs coming in at 7,167 sales.296 Perry J
290 Ibid 54. 291 Ibid. 292 Ibid 105[1]. 293 Ibid. 294 Ibid. 295 Birubi Penalty Case (n 8) 105[2]. 296 Ibid. 69
considered the lower volume of sales important and imposed a penalty of $475,000.297 Thirdly, the message stones were more likely than not to mislead consumers and were available for sale for a period of 19 months. The volume of sales of 6,814 was comparable to the boxed boomerangs and a penalty of $475,000 was imposed.298
Fourthly, the loose boomerangs ‘created a real risk of misleading consumers as to the authenticity and provenance of the product’, but were not found to be liable to mislead.299 Despite this, the high volume of sales at 15,688 over a lengthy period of 2 years and 4 months warranted a penalty of $450,000.300 Lastly, the misrepresentations attached to the bullroarers ‘created a real risk of misleading consumers as authenticity and provenance’, but were not found to be liable to mislead. The low volume of bullroarer sales of 352 for less than a year lead to a penalty of $200,000.301
From the reasons provided by Perry J, it appears that when determining the appropriate penalty, weight is given to the volume of sales and length upon which the misrepresentations conveyed with the product were made. To the extent it can, the Court has highlighted the cultural harms associated with Inauthentic Art and Craft, however limitations to address the issue still exist depending on the facts of the particular case and the scope of ACL being applied. While the Birubi Decision was welcomed and certainly needed after a long absence of ACCC proceedings in this area, it also reaffirmed the limitations of the existing ACL, which is that despite the misuse of Aboriginal designs, Inauthentic Art and Craft is allowed to exist where there is no misleading or deceptive conduct. This is because the ACL only recognises misleading or deceptive conduct if an inauthentic Aboriginal ‘style’ product claims to be authentic due to associated express or implied representations attached to the product, such as the labelling or placement of the product. While Inauthentic Art and Craft without any associated labels has not been directly tested by the Court from a misleading or deceptive perspective, based on the law’s interpretation to date, it is not likely to be found to be misleading. On the contrary, I argue that the visual representation of the Aboriginal ‘style’ product already gives the impression there is an association with an Aboriginal person or artist.
297 Ibid. 298 Birubi Penalty Case (n 8) 105[3]. 299 Ibid 105[4]. 300 Ibid. 301 Ibid 105[5]. 70
Hardie is of the view that ‘strategic litigation’ and ‘dialogue with the Courts’302 is likely to progress reform in this area. The significance of the Birubi Decision may be positioned within that approach for reform due to highlighting the limitation of the law, but also considering the cultural harms evidenced in the Birubi Penalty Case. In that sense, the Birubi Penalty Case builds on the cultural harms that were identified and considered in the Carpets Case, although only if considered in light of general deterrence principles. The focus on the cultural harms in the Birbui Penalty Case also highlights that while the harms are significant, the application of the ACL is not directly concerned with the infringement of ICIP rights. This supports calls to reform the ACL to address such deficiencies as discussed in Chapter 6 of this thesis.
3.7 Conclusion This Chapter has considered the application of the ACL in the context of the Birubi Decision and in particular, what Perry J considered important when deciding whether misleading representations had been made out. The Birubi Penalty Case has also been considered in light of the evidence on the cultural harms of Inauthentic Art and Craft as provided by Dr Banduk Marika. The purpose of examining the cases in this Chapter is to identify the strengths and weaknesses of the ACL in prohibiting Inauthentic Art and Craft. This analysis was undertaken because while there has been past and recent regulatory action in this area, such action has not stopped the production and sale of Inauthentic Art and Craft in Australia.
The Birubi Decision has played a positive role in bringing the issue of Inauthentic Art and Craft into the media spotlight and arguably heightening the awareness of retailers and consumers about such products. While it is difficult to provide exact figures on the extent of Inauthentic Art and Craft suppliers in Australia, anecdotal evidence suggests that Birubi’s conduct is not an isolated case and is indicative of broader conduct within the souvenir industry.303 The action against Birubi demonstrates a renewed agenda for regulators to investigate sellers of Inauthentic Art and Craft and for Courts to carefully consider the cultural impacts of Inauthentic Art and Craft as expressed by Aboriginal people. Despite this intention, the limitations of the ACL identified in this Chapter mean that not all producers of Inauthentic Art and Craft will be caught by the misleading and deceptive provisions. To the extent that labelling
302 Hardie (n 22) 155. 303 Arts Law Centre of Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 64, 3 November 2017) 11 (‘Arts Law submission’). 71
and packaging attached to products is accurate such as ‘Made in Indonesia’ or vague as to origin, Birubi and other producers are able to argue that such products are not misleading, despite being created by non-Indigenous people. This is a gap in the law that allows Inauthentic Art and Craft to proliferate in the market.
In recognising the limitations of the ACL in addressing Inauthentic Art and Craft, I argue that the visual representation of Aboriginal style art and craft already gives the impression it was made by an Aboriginal person. Given the connection between Aboriginal people and cultural expression contained on such art and craft products, there is a clear identifiable link between such expression and Aboriginal people. In that regard, if Aboriginal cultural expressions are created by non-Indigenous creators, I argue that such expression and products which they are embody are misleading in themselves, regardless of any type of labelling or packaging associated with the product. While the current ACL does not recognise such conduct as misleading, I propose that consideration should be given to such arguments about visual representations, particularly when approaching policy and legal reform in this area. I argue that such an approach would fill the current gap in the ACL that allows Inauthentic Art and Craft to exist. The limitations of the ACL as applied to the Birubi Decision highlights the need for there to be law reform, either through an amendment to the ACL to prohibit the supply of Inauthentic Art and Craft or standalone legislation to provide comprehensive recognition and protection of ICIP rights. As discussed above, continued reliance on the current ACL will only bring to question those who make misleading and deceptive claims with respect to the authenticity or characteristics of Aboriginal style art and craft products, and will continue to allow operators to sell Inauthentic Art and Craft.
The Birubi Decision and Birubi Penalty Case also raise important questions around the issue of phoenix activity in respect of Indigenous Intellectual Property infringement. Phoenix activity usually involves the transferring of assets from an existing company to a new company, where the new company operates the same or similar business to the former company.304 As noted earlier in this Chapter, Birubi entered into voluntary liquidation after the Birubi Decision and before the Birubi Penalty Case. Practically, this meant that Birubi was unable to pay any penalties imposed against it by the Court. Perry J recognised that Birubi’s business assets were
304 The Australian Securities and Investments Commission, Illegal Phoenix Activity (Web page, 5 February 2020)
sold to Gifts Mate Pty Ltd, a company established and controlled by Birubi’s former director, Mr Wooster. Online searches of Gifts Mate reveal a website ‘supplying unique Australiana and Australian souvenirs to retailers, government and corporate buyers’.305 A review of the Gifts Mate website reveals a range of items incorporating Aboriginal cultural expression for sale including bullroarers, didgeridoos and boomerangs under a broad heading of ‘Timber Range’.306
Importantly, not all company failures involve illegal phoenix activity, and however undesirable the phoenix is, it is not the same as an illegal phoenix.307 Illegal phoenix activity occurs ‘where a new company is created to continue the business of an existing company that has been deliberately liquidated to avoid paying outstanding debts’.308 The key difference between legitimate and illegal phoenix activity is where a director sets out to intentionally avoid paying debts by transferring assets without paying the true market value, in breach of director’s duties under the Corporations Act 2001 (Cth).309 While illegal phoenix activity was not alleged against Birubi in the Birubi Decision or Birubi Penalty Case, the conduct itself raises important questions about the ability for companies found guilty of misleading and deceptive conduct to continue business selling Inauthentic Art and Craft within the bounds of the ACL and to avoid legal penalties.
In 2018, the Labour Party put forward a proposal to address illegal phoenix activity, including by requiring all company directors to obtain a unique director identifier number that could track ‘dodgy phoenix activity’.310 Labour’s proposal to address such conduct also included the ability to ‘name and shame’ dodgy operators.311 In 2019, ASIC prosecuted only four cases of illegal
305 Gifts Mate, Gifts Mate Souvenirs (Web page, 2 February 2020)
312 The Australian Securities and Investments Commission, ASIC Action on Illegal Phoenix Activity (Web page, 5 February 2020)
Chapter 4
The Issue of Authenticity: An Analysis of the 2017 Inquiry’s Terms of Reference and Evidence 4.1 Introduction The purpose of this Chapter 4 is to critically analyse the 2017 Inquiry’s focus on defining the concept of authenticity in the context of Inauthentic Art and Craft. This is achieved by examining the written and video evidence submitted to the 2017 Inquiry and in particular, identifying Aboriginal and Torres Strait Islander perspectives of authenticity as it relates to Inauthentic Art and Craft. The purpose of identifying specific views on authenticity is to reveal whether there is a clear understanding of what is deemed to be authentic and how that perspective is relevant to the proposed 2017 Inquiry recommendations. It is anticipated that by identifying the various standpoints on authenticity, the value systems that sit behind such standpoints will be revealed and then used to consider whether the law can be structured to recognise and protect Aboriginal cultural expression.
This Chapter is only focused on authenticity as required by the 2017 Inquiry’s Terms of Reference. It does not seek to define authenticity or art more broadly in the Aboriginal art industry, and does not purport to provide a steadfast approach to defining such concepts. This Chapter identifies issues of terminology used within the 2017’s Inquiry Terms of Reference, gives consideration to the underlying purpose of souvenirs and consumer perspectives of Inauthentic Art and Craft, and highlights Aboriginal peoples’ and other responses to the task of defining authenticity as part of the Terms of Reference. I conclude this Chapter with recommendations on how authenticity could be approached when addressing Inauthentic Art and Craft.
4.22 Terminology The 2017 Inquiry Terms of Reference focus heavily on defining the term ‘authenticity’ to properly address and understand the issue of the Inauthentic Art and Craft issue. According to anthropologist Professor Richard Handler, authenticity is a cultural construct of the modern
75
Western world, closely tied to Western concepts of individualism.313 Professor Handler states that authenticity is a construct that is representative of Western enquiry rather than based on any notion of non-Western cultures, such as Aboriginal culture.314 He argues that the need for an authentic cultural experience, for the ‘unspoiled, pristine, genuine, untouched and traditional’ says ‘more about us than about others’.315 The framing of authenticity from an individualistic Western perspective is at odds with the views that Aboriginal and Torres Strait Islander people expressed through the 2017 Inquiry.
In the context of defining terms and use of language, author Diana Eades asserts there are many differences in the English language used by Aboriginal people and non-Indigenous people which relate to meaning, use and style.316 Eades points out that the greatest miscommunication for Aboriginal English speakers in the legal sphere usually occurs in the areas of meaning and use.317 In this respect, where there is non-Indigenous control over the power of definition and use of language, an Aboriginal perspective of the same term is likely to be mispresented by the non-Indigenous viewpoint.318 Bowrey agrees by stating that ‘much is lost and distorted in the process of translation into Western terms and priorities’.319 From an intellectual property perspective, Professor Arewa points to the privilege of historical hierarchies of culture and power which allow lines to be drawn to identify and create categories of cultural property,320 arguably to be owned and controlled by the dominant party in that hierarchy.
Similar concepts were discussed in the early 1990s at the Bellagio Conference on Cultural Agency/Cultural Authority with a focus on ‘intellectual property in the post-colonial era’.321 The conference was organised by Peter Jaszi and Martha Woodmansee who brought together a range of legal scholars, environmentalists, anthropologists and literary critics to discuss the
313 Richard Handler, ‘Authenticity’ (1986) 2(1) Anthropology Today 2, 2. 314 Handler (n 313) 2. 315 Ibid. 316 Diana Eades, Aboriginal English and the Law (Queensland Law Society Incorporated, 1992) 25. 317 Eades (n 316) 25. 318 Ibid. 319 Matthew Rimmer, ‘Introduction: Mapping Indigenous Intellectual Property’ in Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing Limited) 1, 2. 320 Olunfunmilayo Arewa, Culture as Property: Intellectual Property, Local Norms and Global Rights (Paper, Northwestern University School of Law, Public Law and Legal Theory series no 07-13, 4 December 2007) 25 (‘Arewa Paper’). 321 The Bellagio Declaration, ‘Statement of the Bellagio Conference from the 1993 Rockefeller Conference on Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era’, The Society for Critical Exchange (Web page, 1993)
effects of intellectual property on their communities and in their fields of work.322 From that gathering, Professor James Boyle, Jaszi and Woomansee contributed to the drafting of the ‘Bellagio Declaration’.323 Similar to the views expressed by Professor Handler, the Bellagio Declaration recognises that non-Indigenous framing of intellectual property laws are based on the dominant paradigm of individualism, which by its nature excludes custodians of culture and artistic expression from legal protection. To shift the power dynamics between Indigenous and non-Indigenous parties in this context, the Bellagio Declaration324 calls for a re- imagination of the intellectual property rights regime to be inclusive of Indigenous’ cultural values and therefore discontinue the practice of laws being ‘framed by the few to be applied to the many’.325 As legal structures ultimately mirror underlying social values and assumptions about such values,326 a re-imagination of intellectual property laws as called for by the Bellagio Declaration would require acknowledgement and understanding of the drivers of existing intellectual property laws. In this regard, the lack of protection of cultural knowledge or expression under existing laws indicates that little or no accommodation has been given to such knowledge in such frameworks.327 According to Professor Arewa, the lack of protection of cultural knowledge in existing legal frameworks demonstrates the powerlessness of the parties who are likely to benefit most from a regime that is inclusive of and protects cultural knowledge.328
As a backdrop to the 2017 Inquiry’s approach to define authenticity, Eades, Arewa and the Bellagio Declaration shine light on the reasons why Inauthentic Art and Craft has been allowed to legally existed in Australia. The lack of legal protection of Aboriginal cultural expression can be explained by the value that is placed on such expression by the dominant non-Indigenous party in the power hierarchy between Aboriginal and non-Indigenous people in Australia. Therefore, any proposed changes to laws to address Inauthentic Art and Craft will require an analysis and acknowledgement of the assumptions attached to such values by the non- Indigenous dominant party. The 2017 Inquiry’s mandate to identify and categorise authenticity is an exercise of its privilege in the historical hierarchy of culture and power between the
322 James Boyle, Shamans, Software and Spleens, Law and the Construction of the Information Society (Harvard University Press, 1996) 143. 323 Boyle (n 321) 143. 324 The Bellagio Declaration (n 321). 325 Arewa Paper (n 320) 25. 326 Ibid. 327 Ibid. 328 Ibid. 77
Australian state and Aboriginal people in Australia.329 Eades view serves as a caution to the 2017 Inquiry in its endeavour to define authenticity, which carries the risk of not being reflective of the ways in which Aboriginal and Torres Strait Islander people view or value the same term.
While the 2017 Inquiry’s effort is concentrated in the souvenir market, it is clear from the submissions that Aboriginal and Torres Strait Islander views of authenticity form part of broader, overarching call to protect and maintain cultural expression. While this Chapter focusses on authenticity in the context of the 2017 Inquiry Terms of Reference, the underlying considerations of that term ultimately relate to Aboriginal cultural expression more broadly and how that is understood. What is gleaned from the submissions is that Aboriginal and Torres Strait Islander people speak about and value their cultural expressions in ways that transcend all structured terminology and manufactured boundaries of souvenir and fine art markets. Such views in the context of art markets and authenticity will be explored further in this Chapter.
The term authenticity and how it is defined in the context of Inauthentic Art and Craft was fundamental to the 2017 Inquiry considering the issues at hand.330 Authenticity and the contrasting term ‘inauthentic’ formed the basis of the Terms of Reference, which called for submissions addressing the following points: • 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 mechanise 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.331
329 Ibid. 330 House of Representatives Standing Committee on Indigenous Affairs (Cth), Report on the Impact of Inauthentic Art and Craft in the Style of First Nations Peoples (Final report, December 2018) 13 (‘Inquiry Report’). 331 Inquiry Report (n 330) xvii. Author’s emphasis. 78
Submissions to the 2017 Inquiry acknowledge that what constitutes authentic Aboriginal or Torres Strait Islander souvenir products is complex and influenced by a myriad of factors including the cultural context of design and creation.332 In recognition of the complexity and in support of Dutton’s theory,333 submissions also suggested that it is much simpler to frame authentic firstly in the context of what is considered to be inauthentic.334 In that regard, submissions have generally supported the definition that Inauthentic Art and Craft includes products containing Aboriginal or Torres Strait Islander cultural expression that have been produced without the involvement of an Aboriginal or Torres Strait Islander artist.335
When addressing the Terms of Reference, the Indigenous Art Code explained: The term authentic is not one used by most Aboriginal and Torres Strait Islander artists in relation to the work they create. The work they create belongs to them, the ICIP [Indigenous Cultural and Intellectual Property] imbedded in those works belongs to them. It should be noted that the words authentic and inauthentic are predominately used by a non-Indigenous audience to understand this issue.336
The Indigenous Art Code’s approach to use of language was demonstrated by using the word ‘fake’ instead of inauthentic as part of the Fake Art Harms Culture campaign. The impact of such language on the Inquiry resulted in 93 submissions and 14 exhibits that either used the word ‘fake’ by itself or ‘fake and inauthentic’ and ‘fake and derivative’, to describe Inauthentic Art and Craft. Throughout the 2017 Inquiry, Aboriginal people have also used terms such as
332 Australia Council for the Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 96, November 2017) 10. 333 Denis Dutton, ‘Authenticity in Art’ in Jerrold Levinson (ed), The Oxford Handbook of Aesthetics (Oxford University Press) 1. 334 Myvanwy Moar, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 71, undated) 1 (‘Myvanwy Moar submission’). 335 Name withheld, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 139, 2 November 2017) 1 (‘Name withheld submission’). 336 Indigenous Art Code Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 138, undated) 1 (‘Indigenous Art Code submission’). 79
‘copycat’,337 ‘fantasy artwork’338 and ‘toy-toy ones’339 to describe Inauthentic Art and Craft. The Aboriginal Art Association of Australia’s submission cautioned the 2017 Inquiry, by raising concerns over the use of words ‘fake art’ without first making a clear distinction between the Aboriginal fine art market and the souvenir market to which the 2017 Inquiry relates. In that regard, the Aboriginal Art Association of Australia submitted that ‘the well- intended but poorly worded ‘Fake Art’ campaign has and continues to harm customer confidence in the Aboriginal fine art market just by its title alone’.340
Ian Plunkett of Japingka Gallery shared similar concerns over the use of language as part of the 2017 Inquiry by stating that, ‘they are calling it fake art – well it’s not so much that, because there’s very little fake art in Indigenous culture’.341 Further: You can see the art around you here, and I’ve been working with Indigenous artists for over 30 years. Certainly, fake art is not a big problem in Indigenous culture. There’s a lot more fake art in Western art – we all know that. But it is these cheap and nasty fake souvenirs that are being brought into the country in bulk.342
The above evidence calls on experience working with Aboriginal artists to identify that fake art does not dominate Aboriginal culture, and presumably, the industry within which the gallery operates. Arguably, while ‘fake art’ may not exist widely within such culture, the negative impact of its existence is certainly felt by Aboriginal and Torres Strait Islander people as evidenced in their submissions to the 2017 Inquiry.
337 Arnhem Northern and Kimberley Artists Aboriginal Corporation, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 132, undated) 14 (‘ANKAA submission’); Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 11 April 2018, 8 (Gabriel Nodea, Deputy Chair, Arnhem Northern and Kimberley Artists Aboriginal Corporation Kimberley region and Chair of the Warmun Art Centre). 338 Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 2 May 2018, 9 (Margaret Smith, Vice-Chairperson of NPY Women’s Council and Tjanpi Artist) (‘Margaret Smith public hearing’). 339 Ibid 9. 340 Aboriginal Art Association of Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 52, undated) 9 (‘AAAA submission’). 341 Ian Plunkett, Exhibit 6 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 1 (‘Ian Plunkett exhibit’). 342 Ian Plunkett exhibit (n 341) 1. 80
Professor Altman explains that different approaches to authenticity within industries may influenced by the fact that a range of Western disciplinary perspectives have considered authenticity in the Indigenous visual art market; however, that analysis is predominantly focused on the high end Indigenous fine art, rather than the souvenir market.343 This suggests that in the context of Inauthentic Art and Craft, some non-Indigenous definitions of authenticity are likely to be informed by the market within which the product exists. Outside of the considerations of authenticity, an advantage of demarcating between fine art markets and souvenir markets is to accurately assess Aboriginal art’s contribution to the national economy,344 however that analysis is outside the scope of this thesis.
According to Clifford, products that come under the category of souvenirs cannot be ‘reconceptualised as fine art directly’ but may come to do so through an association with culture.345 The dominance of Western modernism allows the appropriation of artefacts from other cultures as ‘art’ in this way is described by Clifford as ‘disquieting and in some senses, imperialistic’.346 In recognising the concerns raised about the lack of distinct art market boundaries when addressing Inauthentic Art and Craft, Shiner asserts that the problem for many art critics and historians is that souvenir products containing cultural expressions are viewed ‘purely in terms of their deviation from traditional stylistic norms and uses rather than seeing them as a creative response to the realities of the present cultural and economic situation of these societies’.347
Paul Van der Grijp similarly describes how the changing economies of countries like Tonga have altered the practices of Indigenous artists, where wood and bone carvings are now produced for the tourist market.348 Tongan artist, Tevita, initially participated in the mass production of carvings, however withdrew from the process due to disliking the scale of production.349 Tevita also explained, ‘If you buy a sculpture from me, you also buy my artists
343 Professor Jon Altman, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 118, undated) 3 (‘Altman submission’). 344 Annette Van Den Bosch and Ruth Rentschler, ‘Authorship, Authenticity and Intellectual Property in Australian Aboriginal Art’ (2009) 39 Journal of Arts Management, Law and Society 117, 129. 345 Geertz (n 29) 315. 346 Ibid 386. 347 Larry Shiner, ‘“Primitive Fakes”, “Tourist Art” and the Ideology of Authenticity’ (1994) 52(2) The Journal of Aesthetics and Art Criticism 225, 232. 348 Paul van der Grijp, ‘A Cultural Search for Authenticity: Questioning Primitivism and Exotic Art’ in Thomas Fillitz, A. Jamie Saris and Anna Streissler (eds), Debating Authenticity (Berghahn Books) 128, 139. 349 Van der Grijp (n 348) 131. 81
interpretation of that legend. This is my art. I don’t sell just a piece of wood’.350 Similar views about the connection to cultural expression are expressed by Aboriginal and Torres Strait Islander artists throughout the 2017 Inquiry.
Van der Grijp observed the cultural influence taken by artists like Tevita as a form of authentication which in his experience, did not exist with non-Indigenous artists. As an example, he noted that during time spent with Tongan artists, there was never any dialogue about the production of art being representative of that artist’s individual self.351 Van der Grijp’s observations of the Tongan experience is like the current context where Aboriginal and Torres Strait Islander artists have demonstrated versatility by moving into the merchandise market to share their cultural expression through souvenirs and merchandise. Tevita’s explanation of not just selling a piece of wood is also reflective of the views of Aboriginal and Torres Strait Islander artists in explaining the different dimensions to their work which are not bounded by specific definitions or market boundaries. For example, throughout the submissions provided to the 2017 Inquiry, Aboriginal and Torres Strait Islander people did not generally state that their arts or cultural practice is tied or limited to the fine art market or souvenir market. Such markets and their boundaries are rather discussed by those in the business of promoting and selling such works.
Submissions by Aboriginal people and organisations use language describing themselves as ‘cultural practitioners’,352 ‘custodians’353 and ‘artists’354 when describing their art practices. An artist spoke specifically about their experience painting souvenirs for companies and described seeing ‘many questionable things regarding art practices and the goings on of artists and souvenir companies’.355 When attempting to raise questions with such souvenir companies the artists described the experience ‘as an uphill battle’ and viewed their submission in the 2017 Inquiry along with others as a way to try and stop Inauthentic Art and Craft.356
350 Ibid 132. 351 Ibid 130. 352 Girringun Aboriginal Art Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 111, 1 November 2017) 2. 353 ANKAA submission (n 337) 2. 354 Delrose Armstrong, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 31, 14 September 2017) 2. 355 Hogarth submission (n 107) 1. 356 Ibid 1. 82
Unlike others, submissions by Aboriginal or Torres Strait Islander people did not make distinctions between the souvenir market or fine art market when speaking about the harms caused to culture. This is exemplified through the evidence of an Aboriginal artist who worked predominately in the souvenir industry, yet viewed Inauthentic Art and Craft as ‘destroying Indigenous culture’,357 in support of views like Shiner’s.358 I suggest this is not because Aboriginal and Torres Strait Islander people are not aware of the commercial markets within which they operate, but rather as recognition that Inauthentic Art and Craft forms part of an overarching concern to protect cultural expression that transcends all market boundaries. In relation to Indigenous people who create souvenir products, Shiner also observes that such people: have all the status and dignity that their own peoples have accorded them, without needing us to ‘elevate’ a selection of them to the level of ‘Art’ and bestow the epithet ‘Artist’ on those who make them while denigrating the majority of their art production as ‘tourist art’ and their makes as mere artisans.359
Shiner’s observation is strongly reflected throughout the 2017 Inquiry by the absence of Aboriginal and Torres Strait Islander artists describing the authenticity of their work within the boundaries of fine art, souvenir art or tourist art.
According to Professor Altman, it is unsettled whether tourists would pay more for authentic souvenirs, particularly when retailers claim that price is more important than authenticity to ‘souvenir hunters’.360 While souvenirs may be dismissed as objects that are cheap, fake and trivial, Franklin suggests this misses an important point as souvenirs have the capacity to reflect not only artistic and cultural expression, but the social ideals of people who produce and purchase them.361 This is represented in the submissions by the way in which Aboriginal and Torres Strait Islander artists describe the driving force, creation and use of their cultural expression, transmitted via intricate knowledge of country and relationships being passed down through generations.
357 Ibid 2. 358 Shiner (n 347) 229. 359 Ibid 232. 360 Matthew Rimmer, ‘Australian Icons: Authenticity Marks and Identity Politics’ (2004) 3 Indigenous Law Journal 139, 158. 361 Franklin (n 55) 205. 83
An example from an international perspective represents a similar position in relation to the type of products incorporating cultural expression. In 2001, Lego appropriated Maori culture through the Lego ‘Bionicle’ line by using various cultural Maori words for its products without consent. In that case, even though the offending product was in relation to a small plastic Lego toy line, as opposed to a large canvas or sculpture, the medium or product itself did not detract from the primary issue which was the exploitation of Maori culture and tradition.362
4.3 Concerns about past and future efforts to address Inauthentic Art and Craft While Aboriginal and Torres Strait Islander participation in the 2017 Inquiry was strong, with approximately 149 Aboriginal and Torres Strait Islander individuals, owned or governed business and art centres providing submissions,363 there was a clear message that the burden to address Inauthentic Art and Craft does not solely lie with Aboriginal people. For example, the Arnhem, Northern and Kimberley Artists Aboriginal Corporation reminded the 2017 Inquiry that, ‘the principle responsibility to solve the problem of ‘fake art’ should be placed on those perpetuating the injustice, not on genuine Aboriginal artists, who are already by and large among the most financially and socially disadvantaged Australians’.364
Aboriginal artist, Gordon Hookey, suggested that non-Indigenous people need to take an active approach in educating themselves to understanding the issues associated with Inauthentic Art and Craft and take responsibility in resolving it, ‘I just feel that it's the whitefellas that have to do it for themselves…instead of, you know, asking us all the time to come up with the answers, because the whitefellas are the one that created the problems…so it should be them that fixes it as well’.365 Equally, Terri Janke and Company has long recognised that any definition of authenticity should be decided by Aboriginal and Torres Strait Islander people, with support at
362 Rosemary J Coombe and Andrew Herman, ‘Rhetorical Virtues: Property, Speech and the Commons on the World-Wide Web’ (2004) Anthropological Quarterly 559, 563. 363 The reference to 149 includes written submissions, video submissions and exhibits uploaded to the 2017 Inquiry webpage. The identification of an Aboriginal or Torres Strait Islander individual or business was based on that being expressed in the submission or that was already known to the author. The number of 149 does not include additional people who may have provided evidence in the various public hearings held around the country. 364 ANKAA submission (n 337) 11. 365 Gordon Hookey, Exhibit 15 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 4 (‘Gordon Hookey exhibit’). 84
a national level or supported by local variations of the definition.366 The involvement of Aboriginal and Torres Strait Islander people in defining and controlling such terminology is key to the use of Aboriginal Terms of Reference. The importance of using Aboriginal Terms of Reference in the context of properly addressing Inauthentic Art and Craft is discussed further in this Chapter.
Label of Authenticity The 2017 Inquiry was also cautioned against repeating past attempts to regulate authenticity in the Aboriginal art market, with submissions pointing to the failed Label of Authenticity as an example. Many submissions recognised the usefulness of a label of authenticity (affixed to an Indigenous art product) that consumers could rely upon to inform that consumer’s purchase choice. However, concerns were also raised about the past failure of the Label of Authenticity and how that model could impact the 2017 Inquiry’s current response to Inauthentic Art and Craft. Tim Acker acknowledged the concerns and stated unequivocally ‘they have been problematic and expensive failures and should not be repeated under any circumstances’.367
The concept of a label of authenticity in the Aboriginal art market was said to be first discussed in 1982 at an artist’s conference held in Nguiu,368 Bathurst Island, Northern Territory.369 Over 15 years later in 1999, the fear Government proposed the use of certification marks to provide stronger protection for consumers of Aboriginal and Torres Strait Islander art and services.370 At the time, the introduction of a Label of Authenticity demonstrated a change from the use of copyright law to protect Indigenous artists through case law371 to the protection of consumers of Aboriginal art under trade mark law.372
The consumer protection approach to Inauthentic Art and Craft has continued into the current 2017 Inquiry, demonstrated by a large number of submissions pointing to consumer law as an
366 Inquiry Report (n 330) 14. 367 Tim Acker, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 22, 25 October 2017) 1. 368 Now referred to as Wurrumiyanga, Northern Territory. 369 Leanne Wiseman, ‘Regulating Authenticity?’ (2000) 9 Griffith Law Review 248, 250. 370 Rimmer (n 360) 153. 371 Carpets Case (n 24) 240; Bulun Bulun (n 138) 3. 372 Rimmer (n 360) 153. 85
option to combat the issue. After the Federal Government’s announcement to introduce the labelling scheme, the National Indigenous Arts Advocacy Association (NIAAA) received funding to develop rules and implement two certification trade marks, known as the collaboration mark and the Label of Authenticity (the latter will only be addressed in the Chapter). The Label of Authenticity was intended to be applied to ‘products or services that are derived from a work of art created by, and reproduced or produced and manufactured by Aboriginal and Torres Strait Islander people who satisfy the definition of authenticity’.373
The Label of Authenticity was designed to distinguish authentic Aboriginal and Torres Strait Islander art and products from other products in the market, and therefore bolster the income of Aboriginal and Torres Strait Islander artists.374 The label did not intend to act as an indicator of what is ‘real’ in Aboriginal or Torres Strait Islander culture in modern art.375 Rather, it was anticipated that use of the label would help stop Inauthentic Art and Craft by providing a certified group of products in the market for consumers to interact with, in addition to providing consumers with information about the authenticity of the product. Arguably, the use of a label by itself would not prevent the manufacture or sale of Inauthentic Art and Craft, as consumers would be presented with the choice of purchasing authentic or Inauthentic Art and Craft, albeit being better informed of that purchase choice. In that regard, the NIAAA had also promised to roll out an advertising campaign on incoming flights to advise tourists of the Label of Authenticity, however this did not eventuate due to the ultimate failure of the scheme.376 Similarly, inflight advertising provided through an information guide on authentic works is also a recommendation put forward by the current 2017 Inquiry to combat Inauthentic Art and Craft.377
Unfortunately, the Label of Authenticity was fraught with problems since its inception, including delays with system operations, lack of infrastructure, limited artist participation and difficulties in accessing and meeting the criteria to apply the label. Limited participation was problematic in a very real sense, as Aboriginal and Torres Strait Islander artists who did not use the label could have their art or art products viewed by consumers as inauthentic or not real
373 Ibid 154. 374 Wiseman (n 369) 251. 375 Kathryn Wells, ‘The Development of an Authenticity Trade Mark for Indigenous Artists’ (1996) 21 (1) Alternative Law Journal 38, 38. 376 Rimmer (n 360) 155. 377 Inquiry Report (n 330) 97. 86
if the label was not affixed. In order to use the authenticity label, three criteria needed to be satisfied, including the artist satisfying the relevant definition of authenticity, was a two-step process.378 The NIAAA sought to define authenticity by asking Aboriginal and Torres Strait Islander communities what authorship and origin meant to them.379 The result of that exercise was that authenticity was a statement by Aboriginal and Torres Strait Islander artists about ‘identity’, ‘belonging’, ‘knowledge’ and ‘respect for and responsibility towards the works’ they create.380 This component of authenticity also related to Aboriginal and Torres Strait Islander artists being sensitive to others and not exploiting another’s ‘identity’, ‘belonging’ and ‘knowledge’.381
There is clear overlap with the issues faced by the NIAAA and those considered by the 2017 Inquiry, particularly when attempting to define or categorise Aboriginal and Torres Strait Islander cultural expression within absolute definitions of what is deemed to be authentic. The responses of ‘identity’, ‘belonging’ and ‘knowledge’ gathered from Aboriginal and Torres Strait Islander people throughout the NIAAA process broadly reflect those expressed 20 years later in the 2017 Inquiry process, when responding to the same question of authenticity.
One of the criticisms of the Label of Authenticity was the requirement of Aboriginal and Torres Strait Islander artists to prove their identity, and in turn, confirm what they create is authentic. From the NIAAA’s perspective, authenticity could partly be achieved through compliance with an identity test, one that is similarly used by the government which considers whether the artist is a person of Aboriginal or Torres Strait Islander decent, identifies as an Aboriginal or Torres Strait Islander and is accepted by the Indigenous community in which the artist lives or comes from, or which the artist identifies with.382
At the time, artist, Brenda Croft expressed concerned about the use of the word authentic in the context of the label and did not believe that Aboriginal and Torres Strait Islander artists should be required to demonstrate their authenticity or identity to others.383 Croft likened the label to colonial practices used by government, ‘Only a few decades ago if an Indigenous person
378 Wiseman (n 369) 260. 379 Rimmer (n 360) 157. 380 Ibid 157. 381 Wiseman (n 369) 261. 382 Ibid 260. 383 Maree Sainsbury, ‘Indigenous Cultural Expression and Registered Designs’ in Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing) 233, 243. 87
wished to move about relatively unhindered by the authorities, they were required to hold a government pass – the ‘Dog Tag’, which stated that they were fit to be considered a full citizen of Australia’.384 Further, Croft asked ‘Does not the Label fulfil a similar purpose, asking [Indigenous people] to confirm their status yet again?’385
The question posed is relevant to the current considerations of the same issues of authenticity, and based on the experience of the NIAAA, it is not unusual for the 2017 Inquiry to hear participants’ frustration on the matter. The 2017 Inquiry was reminded of the criticism from Aboriginal and Torres Strait Islander artists who were concerned about having to prove, and have a body certify, that their work is authentic.386 The NIAAA’s need to define identity and authenticity through a structured test is also reflective of the 2017 Inquiry’s approach explored earlier in this Chapter, particularly the need for non-Indigenous people or bodies to categorise and define concepts before being able to comprehend and address an issue. Criticism is drawn to this approach in the context of matters like cultural expression that may not neatly within such boundaries, and particularly when such approaches are continuously repeated over time demonstrated by the NIAAA and now the current approach.
Professor Altman identified initial problems with the Label of Authenticity by the failure to ‘distinguish fine art from manufactured tourist art’387 in use of the label. As acknowledged earlier in this Chapter, similar concerns relating to distinct market boundaries have been echoed in the context of the 2017 Inquiry addressing Inauthentic Art and Craft.388 Professor Altman posited that those operating within the fine art market may believe their own systems of labelling were sufficient to prove authenticity to a consumer and therefore did not wish to participate in the scheme.389 While not expressly stated by the NIAAA, there appeared to be general consensus that the Label of Authenticity would have a primary focus on souvenirs rather than fine art market.390 This may have been influenced by the relevant trade marks being registered in a number of classes that covered goods and services within the art and craft sector.391
384 Wiseman (n 369) 261. 385 Ibid. 386 Arts Law submission (n 303) 21. 387 Rimmer (n 360) 157. 388 AAAA submission (n 340) 9. 389 Rimmer (n 360) 160. 390 Wiseman (n 369) 252. 391 Rimmer (n 360) 158. 88
Arguably, the issues faced by the NIAAA in relation to authenticity are not dissimilar to those of the 2017 Inquiry and in that respect, will need to be approached differently if anything is learnt from the experience of the NIAAA. What is apparent in the NIAAA’s experience and in the 2017 Inquiry’s context is that when attempting to define and regulate authenticity in the context of Inauthentic Art and Craft, there is an ongoing battle to fit Aboriginal cultural expression within a definition of authenticity which is based on Western ideals of individualism and within art market forces, like the souvenir and fine art markets. While the need to define authenticity was central to the NIAAA’s implementation of the Label of Authenticity, it was also a contributing factor to its demise. This is an important lesson to learn from in the 2017 Inquiry, particularly with the same heavy focus on defining terms like authentic and inauthentic.
Use of certification trade marks by Indigenous people internationally While the Label of Authenticity was not successful in Australia, there are examples of Indigenous peoples in other parts of the world utilising the certification trade mark scheme to protect their cultural and artistic works. Two examples of such use are summarised below.
Canada Certification marks have long been used in Canada to identify the Indigenous origins of certain products. In 1958, the Canadian government introduced the Igloo Tag Trade Mark to be used as a symbol of authenticity for Inuit visual artists. The trade mark was created to distinguish handmade works by Inuit artists from mass produced products made by non-Inuit people using Arctic imagery.392 The trade mark offers three different categories including artist association or non-profit organisation,393 Inuit art retailer licence394 and Inuit art distributor licence.395 The Igloo Tag Trade Mark Use Policy defines ‘Inuit Artist’ as a Canadian artist of Inuit origin who
392 Inuit Art Foundation, About the Igloo Tag (Web page, undated)
makes Inuit Art’.396 Further, in order for products to be considered ‘Inuit Art’ they must either be made by an Inuit Artist or purchased directly from an Inuit Artist.
Affixed to the relevant artwork, the Igloo Tag Trade Mark includes the artist’s name, community, title and year of the work and a number identifying a licence holder of the work.397 In this context, the purpose of the Igloo Tag Trade Mark is to protect Inuit artists from cultural appropriation and theft.398 In 2017, after several years of negotiations, stakeholders including artists, collectors, dealers and the Indigenous and Northern Affairs Canada determined it was appropriate to transfer the Igloo Tag Trade Mark to an Inuit-led arts organisation, the Inuit Art Foundation. Carolyn Bennett, the Canadian Minister of Indigenous and Northern Affairs said in a statement that actions like the trade mark handover to an Inuit-led organisation are ‘small, but powerful steps on the journey of decolonization’.399 Despite not all Inuit artists using the trade mark (which was an issue raised with the Label of Authenticity) and the existence of copies, the Igloo Tag Trade Mark is widely credited with the development of a highly successful international market for high quality Inuit art.400
New Zealand In 1936, the concept of a Maori mark of quality and authenticity was raised by Ngati Porou leader and scholar Sir Apirana Ngata.401 The New Zealand Maori Council discussed the concept further in 1964 and it was further action in 1997 by the Te Waka Toi (Maori Arts Board).402 Over a period of another five years of community and artist consultations and gatherings, the the ‘toi iho’403 mark was registered and launched in 2002. The mark was developed in response to calls from Maori to help retain ownership of their cultural knowledge, imagery and design. It was launched by the Auckland Art Gallery Toi o Tamaki under the New Zealand government arts body, Creative New Zealand and the Maori Arts Board.
396 ‘Inuit Art’ is defined as only artwork, including sculpture, painting, drawings, prints, textile art, collages, installations, conceptual art, crafts, ceramics, jewellery, and fashion goods (like shoes, boots, hats, scarves, socks, gloves, mittens) which are made by an Inuit Artist, Ibid. 397 Inuit Art Foundation (n 392). 398 Ibid. 399 Sara Frizzell, ‘After 60 years, Inuit-led organisation takes over Inuit art trademark from feds’ CBC News (online, 13 July 2017) < https://www.cbc.ca/news/canada/north/igloo-tag-inuit-art-foundation-1.4203004>. 400 Robert Paterson, ‘Canadian and International Traditional Knowledge and Cultural Expressions Systems’ (2017) 29(2) Intellectual Property Journal 191, 244. 401 Toi iho, People (Web page, undated)
With four different categories of the mark, the purpose of its use, among other things, is to distinguish Maori arts and crafts from others and maintain the integrity of the Maori culture.404 In 2009, and after several reviews of the scheme, Creative New Zealand withdrew support for the certification trade mark on the basis that the scheme failed to increase sales of Maori art by licensed artists and stockists.405 The trade mark is now managed by the Toi Iho Charitable Trust which maintains a register of artists using the toi iho trade mark.406 According to the Toi Iho Charitable Trust website, part of the application to apply for use of the mark is providing ‘confirmation that you agree to be a Toi Iho artist’.
Separately, New Zealand also has special provisions under the Trade Marks Act 2002 to prevent registration of a mark that is ‘offensive’, which might include an obscenity or insult to a particular group. This ground makes specific reference to a mark that is likely to offend a significant section of the community, including Maori.407 The Commissioner of Trade Marks refers any trade mark application which contains a Maori word or symbol to a Maori advisory committee to consider possible cultural offence. Author Paul Sumpter suggests the system works well and there has been no litigation over the committee’s decisions to reject applications.408 This may also be supported by the fact that in such cases of rejection, applicants have been asked to rework and submit the trade mark applications.409 While this is a good outcome in relation to those who wish to register marks or words, this approach does not stop unauthorised use of images or designs more broadly.
While the above international approaches may have varying levels of success in stamping out fakes and promoting authentic works in their respective jurisdictions, they are examples of how domestic trade mark systems can be used to promote Indigenous peoples’ cultural expressions and artworks. Such schemes offer insight into how an Australian based certification trade marks scheme may operate if past implementation and administrative challenges with the Label of Authenticity are addressed. Of particular note is the considerable length of time of time that
404 Zografos (n 403) 949. 405 Rimmer (n 319) 279. 406 Toi iho, About Toi Iho (Web page, undated)
each of the schemes has experienced in terms of consultation, development, implementation and ongoing maintenance of the schemes.
4.4 Consumer perspectives on Aboriginal cultural expression The ACCC made it clear in the Birubi Decision that its focus was the impact of representations on consumers, as opposed to retailers who purchased souvenirs from Birubi.410 Practically, this means that Courts are interpreting impressions of authenticity of Aboriginal cultural expression on souvenirs through a consumer lens.
Results of survey conducted by CHOICE CHOICE, a leading consumer advocacy group, conducted fieldwork and a survey of 1,029 Australian households in January 2018 to gather evidence on consumers’ views of Inauthentic Art and Craft.411 While the sample size may be limited in terms of national participation, CHOICE’s research showed that Inauthentic Art and Craft was an issue that Australian consumers cared about.412 The results revealed that Inauthentic Art and Craft caused harm to consumers who wanted to purchase ‘ethically produced Indigenous art’ and further, caused ‘a loss of confidence in the market as a whole’.413 When faced with assessing authenticity, the majority of CHOICE respondents did not think it was easy to distinguish between fake and authentic and 43% of survey respondents said they would rely upon a label or statement when buying an Indigenous art product.414 The reliance by consumers on labels to determine authenticity is problematic, because while there have been previous unsuccessful attempts to introduce a Label of Authenticity, there is currently no uniform approach to labelling of Aboriginal works that could provide consumers with consistent information in their purchase decision making process (apart from the information not being misleading or deceptive in accordance with the ACL). There is insufficient information to determine what the 43% of survey respondents would rely upon in a label when purchasing an ‘Indigenous art product’. A common-sense approach may assume that consumers would rely on the name or picture of the artists, with a description of where the artist is from and story associated with the art product.
410 Birubi Decision (n 7) 3. 411 CHOICE, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 145, 26 February 2018) 1. 412 Ibid. 413 Ibid. 414 Ibid 2. 92
CHOICE also found that 44% of those surveyed believed it was misleading to sell fake Aboriginal ‘style’ art even if the art does not expressly claim to be authentic.415 This consumer view represents the gap in current consumer law which is explored throughout this thesis. CHOICE’s submission did not elaborate on the consumer’s reasoning in coming to this decision. However, one explanation of those surveyed could be the belief that Aboriginal ‘style’ art in itself gives the impression it was created by an Aboriginal person – and for it to be created otherwise is misleading.
While consumers may believe this type of conduct to be misleading, the current ACL does not, despite consumer protection being at the heart of the ACL’s function. This consumer view identified by the CHOICE survey represents the gap in law which the research addresses through examining the evidence to the 2017 Inquiry and proposed solutions to Inauthentic Art and Craft. The gap occurs where there is no misleading or deceptive conduct made out under law, despite the product being visually in Aboriginal ‘style’. This gap allows Inauthentic Art and Craft to lawfully exist. Like the consumer views identified by the CHOICE survey, I argue that the visual representation of the Aboriginal ‘style’ product already gives the impression there is some association with an Aboriginal person or artist. As expressed throughout the 2017 Inquiry, this gap in the ACL has negative impacts on the cultural practices of Aboriginal and Torres Strait Islander artists, particularly where such products are lawfully permitted to be created and sold without the actual involvement of an Aboriginal or Torres Strait Islander.
As identified in Chapter 2 of this thesis, the ACL will only recognise misleading or deceptive conduct if an inauthentic Aboriginal ‘style’ product claims to be authentic due to associated express or implied representations attached to the product, such as labelling or placement of the product. While an Inauthentic Art and Craft without any associated labels has not been directly tested by Courts from a misleading or deceptive perspective, based on the law’s interpretation to date, the finding is not likely to be misleading (and contradictory to consumer views in CHOICE’s survey). An example of this approach is the Court’s consideration of the Loose Boomerang (pictured below) in Birubi:
415 Ibid 2. 93
Perry J was not persuaded on the balance of probabilities that consumers would be misled into thinking that the Loose Boomerangs were ‘made by an Aboriginal person’.416 In making that finding, Perry J made the specific comment that ‘nothing on the sample loose boomerang or its labelling states or suggests that it was made by an Aboriginal person’.417 Perry J relied on arguments presented by Birubi, including labelling on the back of the Loose Boomerang which indicated royalties are paid to the artist, and the analogy that people ‘understand that a singer will be paid a royalty even though she has not personally manufactured the CD on which the song is recorded. People understand that an artist will be paid a royalty even though he may not have had a hand in the reproduction of his artwork’.418 This analogy presented by Birubi and referenced by the Court assumes that ‘any’ person can reproduce and commodify a boomerang on mass scale in the same way a person can manufacture a CD.
This standpoint assumes that in the context of mass production, Aboriginal people will not always be involved in the manufacture of boomerangs like the loose boomerang, and in such cases, consumers would not be misled about that fact. This approach imposes a specific framework around how boomerangs like the loose boomerangs should be created and mass produced and therefore accepted by consumers as such. These views feed into the perception that Aboriginal art belongs to no one and can therefore be used and commodified indiscriminately by anyone.419 The Court’s finding that ‘nothing on the sample loose boomerang or its labelling states or suggests that it was made by an Aboriginal person’420 and the argument that anyone can make a boomerang like the loose boomerang in a similar way to
416 On the contrary, Perry J found that consumers would be misled into thinking the Loose Boomerangs were ‘made in Australia’ and ‘hand painted by an Australian Aboriginal person’, Birubi Decision (n 7) 115. 417 Ibid 107. 418 Ibid 105. 419 Van Den Bosch and Rentschler (n 344) 122. 420 Birubi Decision (n 7) 107. 94
a CD,421 is in stark contrast to the views expressed by Aboriginal people in relation to boomerangs as detailed below.
Roanna Jacob from Mornington Island, Queensland explains to the 2017 Inquiry, ‘I feel hurt that my people are being exploited by people who are taking things from our culture and introducing it as their own work…boomerangs…they were made to bring music and our songs. They were also designed for hunting, and there were different types of boomerang’.422 Roanna Jacob goes on to describe the non-Indigenous perceptions of boomerangs and further, how the originating knowledge held within families is integral to maintaining the integrity and purpose of boomerangs: the non-Indigenous community…they think a boomerang will return to you every time. My dad was a boomerang maker, so, you know, only he would know the knowledge and how to shape a boomerang to make it return to you. I mean, the boomerangs that I've seen in the shops now— I've seen thousands and thousands of them, you know, in the shops, and it sort of made me think of my dad, because my dad was a master craftsman making boomerangs.423
The statement of Roanna Jacob illustrates the way in which Aboriginal people view the creation and purpose of boomerangs, which is predominately grounded in a cultural context. This is demonstrated through describing the method of crafting a boomerang utilising knowledge and skills that have been passed down through generations, and using the boomerangs for deliberate purposes.
There has been a concern about the development of transnational black markets in respect of Inauthentic Art and Craft. Ignatius Taylor from Martumili Artists in Newman, Western Australia, adds: In China they have fake artefacts. They are selling boomerangs and woomera spears and fake didgeridoos and even fake art works. I would like to put an end to that. In Australia, for generations, for a long time before my grandparents and before their grandparents, they were making these artefacts with their hands. They were making boomerangs, spears and woomera.
421 Ibid. 422 Roanna Jacob, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 103 (video), 1 November 2017) 3 (‘Roanna Jacob submission’). 423 Ibid. 95
Now they are doing it in China. We want to put a stop to that. It is hurting not just me but all Aboriginal people around Australia.424
Australia has a trade agreement with China, the China-Australia Free Trade Agreement 2015.425 Article 11.17 of the China-Australia Free Trade Agreement mentions genetic resources, traditional knowledge, and folklore, however there is no discussion of the protection of cultural forms of Indigenous Intellectual Property.
The views shared by Roanna Jacob and Ignatius Taylor are unlike the method of mass production and sale of loose boomerangs heard by the Court in the Birubi Decision. Conversely, the existence of Inauthentic Art and Craft indicates that producers of Inauthentic Art and Craft do not understand the perspectives, protocols and sources of generational knowledge described by Roanna Jacob and Ignatius Taylor. This was clearly demonstrated by Mr Wooster’s evidence in the Birubi Decision who explained that he obtained Aboriginal designs from internet searches which were selected when Mr Wooster believed the design would make ‘a good product’.426 It is evident from the boomerang example identified above that Aboriginal people, producers of Inauthentic Art and Craft and the law hold opposing views about definitions of cultural expression and authenticity.
Collins English Dictionary through Dictionary.com defines the term ‘authentic’ in various but related ways, as set out below: Authentic Adjective • not false or copied; genuine; real – ‘an authentic antique’; • having an origin supported by unquestionable evidence; authenticated; verified – ‘an authentic document of the Middle Ages; an authentic work of the old master’; • representing one’s true nature or beliefs; true to oneself or to the person identified – ‘a story told in the authentic voice of a Midwestern farmer; a senator’s speech that sounded authentic’;
424 Ignatius Taylor, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 114, 8 September 2017) 4 (‘Ignatius Taylor submission’). 425 Australian Government, Department of Foreign Affairs and Trade, China-Australia Free Trade Agreement 2015
• entitled to acceptance or belief because of agreement with known facts or experience; reliable; trustworthy – an authentic report on poverty in Africa.427
The above definition of ‘authentic’ supports the view that authenticity is a dimension word, a term whose meaning is uncertain until the dimension within which it is referred is known.428 It naturally follows that any definition of authentic or inauthentic is bound to the context in which the terms are used.429 Coleman suggests that when an enquiry is made as to whether something is authentic, reference is usually made to criteria that change according to the purpose of the enquiry.430 According to Dutton, a good starting point when considering the definition of authenticity is to ask: ‘Authentic as opposed to what?’431 The answer to Dutton’s question in the current context is ‘Authentic as opposed to souvenir products containing Aboriginal or Torres Strait Islander cultural expression that is made and reproduced without the involvement of an Aboriginal or Torres Strait Islander person’.
What is clear is that defining authenticity is not without challenge, particularly when a term can be defined in various ways depending on the context it is used. While the use of language and definitions is important, the Western frameworks within which terms like authentic and inauthentic are understood will ultimately influence how Inauthentic Art and Craft is addressed. Abigail Chaloupka alerted the 2017 Inquiry to the potential limitations of the Terms of Reference by expressing: Regrettably the terms of reference don’t address the real issues concerning the protection of Aboriginal and Torres Strait Islander people, their land, their cultural and ceremonial right…the notion of cultural inheritance and custodianship being expressed and considered in modern terms such as intellectual property and copyright highlights the juxtaposition of ancient and modern.432
‘Custodianship’ is a reoccurring theme in how Aboriginal and Torres Strait Islanders describe obligations to ensure cultural expression is created and managed in the right way. What this
427 Collins English Dictionary, definition of ‘authentic’ (Web page, 10 February 2020)
means in terms of authenticity suggests that artists do not view authenticity as one dimensional or within the market they operate, but rather as part of an all-encompassing connection to country, culture and family. The submission of Jane Young of Tangentyere Artists and Chairperson of Desart, describes this observation eloquently: Our art is who we are…it helps us carry our culture from the past, to now and into the future for our children and grandchildren. The stories we paint are from our grandmothers and grandfathers and theirs before them. We must pass this on to our grandchildren, so they can know who they are and be strong and proud Aboriginal people – the first people of this land.433
Martu artist, Desmond Taylor from Martumili Artists, gives further explanation to the 2017 Inquiry: Martumili stores our life or stories that have been handed down through generations that we have ownership of. It's also a gift that's been given to us and we're here as we live our lives daily. We are maintaining these stories that we put on canvass to maintain our history. No other people can make these designs that they have no understanding of. Those who fake these designs, it doesn't mean anything to them. To them, it's all about greed, fast money. It's also about ripping our way of life and our stories that belong to this place—Australia.434
While the 2017 Inquiry has a mandate to define authenticity in order to have a clear understanding of the issues, the stark differences and underlying Western frameworks in approaches must be questioned. This is particularly needed in the context of how issues and inconsistencies are intended to be managed and resolved. For example, do the Terms of Reference truly capture the totality of Jane Young’s and Desmond Taylor’s evidence to the 2017 Inquiry? If the answer is ‘No’, then the effectiveness of any proposed solutions must be questioned and considered with great caution. The depth of evidence provided by Indigenous people on ‘authenticity’ appears to go beyond providing a ‘definition of authentic art and craft products and merchandise’.435 I argue that any proposals to define ‘authenticity’ must be approached using Aboriginal Terms of Reference, which are discussed later in this Chapter.
433 Desart submission (n 229) 2. 434 Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 10 April 2018, 3 (Desmond Taylor, artist at Martumili Artists) (‘Desmond Taylor public hearing’). 435 Inquiry Report (n 330) xvii. 98
4.5 Aboriginal and Torres Strait Islander views on ‘authenticity’ Despite the conflicting approaches to the issue of authenticity, 149 Aboriginal or Torres Strait Islander artists, individuals, Aboriginal owned art or community centres and businesses gave evidence to the 2017 Inquiry. The submissions either responded directly to the 2017 Inquiry Terms of Reference, utilised the two submission template letters or provided a submission through a video format. Responses to the Terms of Reference were forthcoming, generous, articulate and strong. While all the responses cannot be replicated in this Chapter, the following responses have been included to demonstrate an Aboriginal artist’s viewpoint of the authenticity of their paintings or other artwork. Employing the thick description method in this thesis allows a focus on the significance of what is being said through the participants’ own experiences and knowledge in an attempt to define authenticity as required by the 2017 Inquiry Terms of Reference.436
Jedda Puruntatameri, Director of the Arnhem, Northern and Kimberley Artists Aboriginal Corporation Tiwi Region, speaks of the importance of connectedness to country, ‘My father taught me how to paint and tell stories that show we are connected with the land and sea. We are the custodians of the land and we look after the land so when we go travelling we look at the land, the landmarks and know the songs that connect us to that land’.437
Authenticity to the Maningrida Arts and Culture Centre in the Northern Territory means ‘either created by artists or makers identifying as and accepted as members of Aboriginal and Torres Strait Islander communities or licensed / collaborative works created in partnership’.438
Located in the Ngaanyatjarra Lands in Western Australia, Warakurna Artists said, ‘We think that authentic art and products means Aboriginal art made by Aboriginal people’.439
Central to the concept of authenticity for Martumilli Artists in Western Australia is ‘the inextricable link with the culture of the artist. Martu artists make art imbued with the living
436 Geertz (n 29) 323. 437 ANKAA submission (n 337) 16. 438 Maningrida Arts and Culture, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 41, 1 November 2017) 2 (‘Maningrida Arts and Culture submission’). 439 Warakurna Artists, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 39, 8 September 2017) 1. 99
culture to which Martu people belong. Subsequently, Martu culture is nourished by the making of arts and crafts’.440
Narelle Holland, artist from Papulankutja Artists in Blackstone, Northern Territory explains that, ‘We make art work that is from our country, the story belongs to us. We are sharing it with you when we sell it’.441
Ada Beasley from Artists of Ampilatwatja suggests that, ‘People should only be allowed to buy real ones, made by Aboriginal people. We’ve got the real ones here at Desert Mob.’442
Bereline Loogatha, artist with the Mirndiyan Art Centre on Mornington Island explains the concept behind the creation process, ‘Everything that goes into an artefact or painting is a part of us, it’s a part of our culture, and it’s a part of our language’.443
The peak body arts body for Central Aboriginal arts and craft centres, Desart, defines authentic products as those which are ‘the legitimate expression of Aboriginal and Torres Strait Island culture. This means that the ‘author’ or ‘creator’ must be an Aboriginal or Torres Strait Island artist or group of artists’.444
From these and other submissions of Aboriginal and Torres Strait Islander people, the understanding of authenticity from their viewpoint is grounded in their own experiences and knowledge relating to connections to land and sea country, family and ancestors. Further, the evidence suggests an inherent responsibility of Aboriginal and Torres Strait Islander people to maintain and transmit the knowledge of the connections through cultural expression. These connections inform an artist’s ability to create, share and speak for cultural expression.
440 Martumilli Artists, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 63, undated) 1 (‘Martumilli Artists submission’). 441 Narelle Holland of Papulankutja Artists, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 126, 9 September 2017) 1 (‘Narelle Holland submission’). 442 Ada Beasley of Artists of Ampilatwatja, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 33, 9 September 2017) 2 (‘Ada Beasley submission’). 443 Bereline Loogatha, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 104 (video), 1 November 2017) 3 (‘Bereline Loogatha submission’). 444 Desart submission (n 229) 2. 100
Cultural expression is also described throughout the 2017 Inquiry as being tied to identity and explained as ‘our art is who we are’.445 The connections and knowledge possessed by an Aboriginal artist informs the making process of art and artefacts, as described by Roanna Jacob446 and Desmond Taylor,447 in relation to the creation of boomerangs. Therefore, it follows that hand-crafted boomerangs are authenticated by the knowledge and method used to bring the objects into being.
The process of authentication described by Aboriginal and Torres Strait Islander people is unlike the homogenised style used on Inauthentic Art and Craft. Regardless of being described as ‘art and craft’, ‘painting’, ‘souvenir products’, ‘art and craft products and merchandise’ or other combinations used throughout the 2017 Inquiry, the message from Aboriginal and Torres Strait Islander people is that the identity of an Aboriginal or Torres Strait Islander person and practice of culture is inextricably linked to the creation of such works. Thus, it follows that the production of Inauthentic Art and Craft is devoid of any purpose or meaning because its creation is not informed by an artist’s Aboriginal identity.
Given the inherent connections between Aboriginal people and cultural expression as described throughout the 2017 Inquiry, Desmond Taylor alternatively explains the meaning that Inauthentic Art and Craft has to the non-Indigenous producers of Inauthentic Art and Craft, ‘Those who fake these designs, it doesn't mean anything to them’.448
Bianca Beetson similarly explains of the producers of Inauthentic Art and Craft, ‘All they are doing is painting a pretty picture: there is no story, no cultural value or knowledge, no connection, no tradition’.449
445 Ibid. 446 Roanna Jacob submission (n 422) 3. 447 Ignatius Taylor submission (n 424) 4. 448 Desmond Taylor public hearing (n 434) 3. 449 Bianca Beetson, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 23, 26 October 2017) 1. 101
Margaret Boko, Aboriginal artist from Tangentyere Art Centre says that in response to Inauthentic Art and Craft ‘My culture is suffering’,450 again highlighting the foundational role that culture and identity plays in the creation of works that contain Aboriginal cultural expression. Consequently, the production of Inauthentic Art and Craft is also viewed by many Aboriginal and Torres Strait Islander people as the theft and misrepresentation of Aboriginal culture and identity. For some artists and communities, it was heard throughout the 2017 Inquiry that particular designs and stories carry strict protocols around management and permission to use. The obligations to adhere to such cultural responsibilities means that the consequences of Inauthentic Art and Craft can have detrimental impacts.
4.6 Cultural authority Throughout the 2017 Inquiry, Aboriginal people also defined authenticity within the parameters of having the authority or cultural authority to create and share cultural expressions. In a practical sense, this means creators only being permitted to depict cultural expressions that are specific to ones’ own family, group or region.
Maningrida Arts and Culture Centre explains their community led process for ensuring cultural authority over works is recognised and maintained ‘In Maningrida and the surrounding homelands artists and senior cultural custodians have directed staff since the early 1970s to ensure that all works are documented, to ensure locally that people with the correct cultural authority to depict certain stories are the makers of works’.451 Further: Not every Aboriginal person in this region has the right and permission to make and create all stories and images. Locally, if a person makes a work that they do not have the cultural authority or permission to make they are held to account by community members, but externally they have no power or recourse to hold to account people making works without permission.452
The evidence of Maningrida Arts and Culture demonstrates the existence of clear protocols and guidelines for the creation of works that are tied to particular stories, which are not observed with the existence of Inauthentic Art and Craft.
450 Margaret Boko, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 29, 12 September 2017) 1 (‘Margaret Boko submission’). 451 Maningrida Arts and Culture submission (n 438) 2. 452 Ibid. 102
Peter Farmer, Aboriginal artist from the Noongar people of Western Australia, explains the role of family and community when practising with cultural authority, ‘I think if you don’t converse with your elders in your community…that’s where we get most of our culture and stories from, so if I’m not talking to them…I think it’s wrong – you’re not on track when you do produce a piece of artwork, because it’s not original’.453
Through early copyright infringement cases, Australian Courts have also heard of the importance of Aboriginal artists’ cultural authority, and awarded damages recognising the cultural harm caused when such authority is breached.454 Concerns raised about the lack of cultural authority in the context of Inauthentic Art and Craft were presented in the submissions to the 2017 Inquiry. Breaches of cultural authority were said to impact the cultural integrity of works and expressions and cause great distress to the original custodians of that cultural expression. While outside the scope of this thesis, concerns were also raised throughout the 2017 Inquiry about the infringement of cultural authority by other Aboriginal people painting designs and styles that are not representative of their cultural identity or background.
When considering this occurrence from an authenticity perspective, Professor Jon Altman states that Aboriginal or Torres Strait Islander artists who may have lived away from their traditional lands, but still create cultural expression, may have difficulty with complying with ‘expressive authenticity’.455 According to Professor Altman expressive authenticity requires ‘some form of recognised link to an individual or community’s customs and traditions, sometimes depicted as the style of a distinct regional or linguist group, or family group art style’.456 The influence of Western art markets demand for a particular Aboriginal art style may also drive the use of styles by those without the cultural authority to do so. Based on the submissions provided to the 2017 Inquiry, an overall assessment is that from an Aboriginal perspective, an authentic work is cultural expression that is tied to identity, culture and family and is informed by the cultural protocols of the area within which one’s identity is based. This attempt at a definition is not intended to be definitive or limiting.
453 Peter Farmer, Exhibit 4 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 2 (‘Peter Farmer exhibit’). 454 Carpets Case (n 24) 240. 455 Altman submission (n 343) 4. 456 Ibid. 103
4.7 Other responses to defining ‘authenticity’ The Indigenous Art Code submitted to the 2017 Inquiry that an authentic work would include an artwork457 with an Indigenous Cultural Expression458 that was either ‘hand crafted by an Aboriginal or Torres Strait Islander person or a licensed reproduction of an artwork created by an Aboriginal or Torres Strait Islander person (and where the original or licensed reproduction attributed the artist who created the original work)’.459 Thirty-two of the submissions to the 2017 Inquiry supported the Indigenous Art Code’s definition which recognised that authentic art and craft and merchandise could be recognised as such if created through either of the two limbs identified above. Clearly, the common denominator in either limbs is the involvement, in some capacity, of an Aboriginal or Torres Strait Islander artist, person or community. Many other submissions to the 2017 Inquiry provided similar definitions which recognised that authentic art and craft and merchandise could be recognised as such if created through the two limbs identified above.
Relevant to the second limb of the above definition is merchandise produced by a non- Indigenous person, incorporating Indigenous Cultural Expression. It was submitted that such products could be considered authentic, provided the merchandise is made under a licence agreement with full authority of the Aboriginal or Torres Strait Islander artist, with income being returned to the artist.460 An example of such an arrangement is provided to the 2017 Inquiry as fine bone China plates which have an Indigenous Cultural Expression reproduced on the plate. In such cases, the Indigenous Art Code suggests that the following conditions should be met in order for such merchandised product to be considered authentic: • the artist is attributed, including reference to the original work, which is reflective of moral rights as contained in the Copyright Act 1968 (Cth); • the integrity of the artist is respected; • the artist has received a fair licensing fee or payment under a transparent licensing agreement; and
457 Defined by the Indigenous Art Code as a ‘creative expression in a material form including art, craft, products and merchandise’, Indigenous Art Code submission (n 336) 1. 458 Indigenous Cultural Expression is 'defined as an expression of Indigenous culture (whether through images, form or any other medium) that: has archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance to an Indigenous community; has its origins in an Indigenous community; is made by an Indigenous artist; or is derived from, or has a likeness or resemblance to, one or more Indigenous Cultural Expression mentioned previously’, see Indigenous Art Code submission (n 336) 1. 459 Indigenous Art Code submission (n 336) 1. 460 Ibid. 104
• the artist has had the opportunity to access legal advice on the terms of the contract or agreement.461
Importantly, the definition proposed by the Indigenous Art Code does not preclude agreements that are made between Aboriginal or Torres Strait Islander artists and manufacturers located overseas. Due to limited manufacturing capacity in Australia and costing issues, some Aboriginal or Torres Strait Islander artists are required to partner with overseas manufacturers in order to produce goods containing cultural expression, such as canvas bags, tea towels, mugs, keyrings and hats.462 It was recognised throughout the submissions that such relationship with overseas manufacturers are required in order for merchandise product to be created.463 Casting doubt over authenticity in such overseas arrangements would have a negative financial impact on Aboriginal artists attempting to break into the art and craft and merchandise market. Contrastingly, submissions raised the requirement that some products like yidakis464 and boomerangs should only be created in Australia by Aboriginal people.
According to Regional Arts Australia, authenticity is underpinned by the identity of the artist to be determined using the three point test employed by the Federal Government as referred to earlier in this Chapter.465 Professor Altman observes that the concepts of authenticity and indigeneity are, among other things, ‘complex’ and ‘subjective’.466 Professor Altman refers to the writings of Dutton who expresses the distinction between authentic and inauthentic in two broad categories of ‘nominal’ and ‘expressive’ authenticity. Nominal authenticity is described by Dutton as the ‘correct identification of the origins, authority or provenance of an object’ and making sure ‘the object of aesthetic experience is properly named’.467 The second limb, referred to as expressive authenticity is considered to be an object which is a true expression ‘of an individuals or society’s values and beliefs’.468 In applying the categories to Inauthentic Art and Craft, Professor Altman suggests that nominal authenticity requires the art and craft
461 Ibid 2. 462 WW Souvenirs Gifts and Homewares Pty Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 89, undated) 3. 463 Indigenous Art Code submission (n 336) 9. 464 Also referred to as didgeridoos in other parts of Australia. 465 Regional Arts Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 75, 3 November 2017) 2 (‘Regional Arts Australia submission’). 466 Altman submission (n 343) 3. 467 Dutton (n 333) 2. 468 Ibid. 105
product or merchandise to be produced or licenced by an Aboriginal or Torres Strait Islander person. Further, expressive authenticity, would require ‘some form of recognised link to an individual or community’s customs and traditions, sometimes depicted as the style of a distinct regional or linguist group, or family group art style’.469 The term expressive authority appears to tie into the concept of cultural authority from an Aboriginal perspective as noted earlier in this Chapter.
Van Den Bosch’s view is that authenticity is based on the concept of Aboriginality.470 This demonstrates the various layers to authenticity that one might consider important. The Australian Institute of Aboriginal and Torres Strait Islander Studies noted that, ‘Authenticity is a pretty vexed conversation, even within Indigenous Australia—this is one of the reasons we think this inquiry is so important. It's what it says to people outside of our communities about
who we are and what we are’.471
The City of Melbourne’s Code of Practice for Galleries and Retailers of Indigenous Art472 makes a clear distinction between made and licensed products:
Authentic Indigenous arts and craft refers to arts and craft made by an Aboriginal or Torres Strait Islander person, from start to finish. It includes contemporary works and works that draw from Indigenous traditional practices and beliefs; and
Authentic Indigenous art products are products reproducing Indigenous art, such as t-shirts, postcards, souvenirs and stationery, produced under a fair licence agreement, where royalties are paid to Indigenous artists.473
The 2017 Inquiry confirmed its support of the City of Melbourne’s definition of authenticity and requested that relevant government agencies474 investigate this definition with Aboriginal and Torres Strait Islander stakeholders as part of developing an accepted standard.475 The proposed definition makes a distinction between the types of products being provided rather than an examination of the actual authenticity of the traditional expression.
469 Altman submission (n 343) 4. 470 Van Den Bosch and Rentschler (n 344) 118. 471 Inquiry Report (n 330) 14. 472 Authored by Terri Janke. 473 Inquiry Report (n 330) 15. 474 Ibid 68. 475 Ibid. 106
In a recent article in the Guardian, the Minister for Indigenous Australia, Ken Wyatt, expressed an intention to find a system to ‘identify authentic artwork in the first instance’ and amend legislation to ‘protect a unique art style’.476 The same Guardian article also foreshadowed the possibility of a mandatory code to protect the rights of artists in the face of unscrupulous dealers. While the need to stamp out unethical practices and protect Aboriginal art is important, it is anticipated that issues of authenticity and unethical conduct will need to be considered as separate issues. Given that each of the identified issues are likely to have their own unique complexities and variables, a broad-brush approach to cover unethical conduct, authenticity and artist’s rights runs the risk of proposing a solution that does not adequately address any of the identified problems. I argue that much can be learnt from many of the previous inquiries, discussion papers and reports which provide solutions to the problems identified by Minister Wyatt. I also argue that at the heart of such solutions must the voice and participation of Aboriginal and Torres Strait Islander people and terms of reference.
4.8 Why Aboriginal Terms of Reference are important The use of language that does not encapsulate Aboriginal responses477 in the 2017 Inquiry reflects the absence of Aboriginal Terms of Reference. In 1985, Dr Lilla Watson developed and introduced Aboriginal Terms of Reference as a framework to ensure Aboriginal knowledge, experience and values were recognised and employed during decision making processes.478 Aboriginal Terms of Reference were created out of the acknowledgement that Western terms of reference and frameworks do not have the capacity to recognise and understand Aboriginal concepts and ways of being. This is because the perspectives are primarily founded in opposing values. In this sense, using Western terms of reference to examine Aboriginal concepts limits such concepts to a Western understanding.
Darlene Oxenham further developed the Aboriginal Terms of Reference protocols in the 1990s and 2000s which are aimed at reflecting Aboriginal values and affirming Aboriginal cultural
476 Lorena Allam, ‘Ken Wyatt calls for law change to protect Aboriginal artists from carpetbaggers’ The Guardian (online, 27 January 2020)
ways of working.479 The differences between Aboriginal and non-Aboriginal viewpoints are striking, including different ways of questioning and standards of judging the worth of something.480 This means that such differences need to be taken into account when the two cultures and perspectives intersect.481 This also means that Aboriginal Terms of Reference do not simply mean writing a set of guidelines for ‘doing business with Indigenous people’, rather it is a consideration of an Indigenous world view that is unique to a particular set of circumstances.482
Among other things, Aboriginal Terms of Reference reflect a framework that affirms the right of self-definition of terms. This is particularly relevant in the current context of defining ‘authenticity’. Eades suggests it is important to examine the use of language beyond how it is used in conversation and extend into how a group of people make sense of such terminology within their worldview.483 This is because peoples’ beliefs, assumptions, values and expectations are bound up with how and why they act and interact in certain ways.484 Use of Aboriginal Terms of Reference in this sense has the effect of employing language, meanings and mind-sets that are representative of Aboriginal perspectives. When defining ‘authenticity’ this could mean viewing and understanding the term in the context of evidence provided by Aboriginal and Torres Strait Islander people to the 2017 Inquiry. Generally, such evidence refers to concepts of authenticity as layers of connections between family, country and ancestors that informs the cultural expression. This is contrasted to a perspective that may view the authenticity of a work as being able to identify the creator of a work. In such cases, while Indigenous and non-Indigenous people may refer to the same term, there are clearly differences in how such a term is interpreted and given value.
The benefit of using Aboriginal Terms of Reference in such circumstances is that Aboriginal perspectives are not boxed in and limited to Western frameworks. The results of which is not representative of such meaning and therefore likely to impact any proposed recommendations when such outcomes are formed through a Western framework. In this context, authenticity
479 Curtin University (n 478). 480 Joan Winch and Ken Hayward, ‘Doing it Our Way: Can Cultural Traditions Survive in Universities?’ (1999) 70 New Doctor 25, 26, citing Darlene Oxenham, ‘Discussion paper: Aboriginal Terms of Reference’ (1998) Centre for Aboriginal Studies, Curtin University, Perth. 481 Winch and Hayward (n 480) 25. 482 Ibid. 483 Eades (n 316) 1. 484 Ibid. 108
should be considered through Aboriginal Terms of Reference and used to inform proposed solutions.
4.9 Conclusion This Chapter has focused on the concept of ‘authenticity’ and in particular defining ‘authentic’ art and craft products as required by the 2017 Inquiry Terms of Reference. The purpose of considering the concept is to identify the different perspectives of authenticity, including from Indigenous, consumer and the Court’s perspectives. The ability to define what is ‘authentic’ art and craft products was central to the 2017 Inquiry’s consideration of Inauthentic Art and Craft. The 2017 Inquiry stated that ‘establishing a universally accepted definition of authenticity for artworks is not straightforward and may not be feasible’.485 The inability to understand or define ‘authentic culture’ in the context of Inauthentic Art and Craft should be scrutinised as a myth that acts to justify continued exploitation of Aboriginal people.486 This is because if an authentic culture or definition does not exist then it can be argued that statements by Aboriginal people about their relationship between art and identity are also false.487 The denial or inability to come to a landing on authenticity may be used to undermine demands for reform in this area.488
While the relationship between the coloniser and colonised in the context of souvenirs is awkward and unsettling, it is a good ‘starting point’ for all Australians to consider souvenirs in that light.489 While the Australian state still has great trouble in expressing a relationship with Aboriginal people, the open expression of racial politics displayed through Inauthentic Art and Craft provides evidence for what does not appear in the records and debate.490 The continued existence of Inauthentic Art and Craft is a demonstration of the categorical racism of Australia’s birth and current life.491 This fact must be considered as part of the examination of authenticity.
485 Inquiry Report (n 330) 68. 486 Coleman (n 77) 387. 487 Ibid. 488 Ibid 388. 489 Ibid 205. 490 Ibid. 491 Ibid. 109
From the submissions of Aboriginal people and organisations, there is an understanding of what authenticity of a work or cultural expression entails. The difficulty of the task referred to by the 2017 Inquiry Report, lies in the limited scope of the Terms of Reference and the demands of it to be flexible enough to allow Aboriginal perspectives to be truly heard and understood. This requires recognition of the limits of the existing frameworks and a readjustment of perspectives when considering Inauthentic Art and Craft. This is needed to ensure that Western frameworks do not control the power of definition of cultural expression and assert what is and is not authentic.
Literature throughout the Chapter has pointed out that ‘authenticity’ is a construct of Western enquiry and tied to concepts of individualism.492 The origins of such term become problematic when trying to elicit definitions of ‘authenticity’ that may not align with traditional understandings of the term. This is significant particularly where evidence to the 2017 Inquiry indicates that the term ‘authentic’ is not one used by most Aboriginal and Torres Strait Islander artists to in relation to their work.493 Instead, the evidence of Aboriginal and Torres Strait Islander people suggests that an authentic work is cultural expression that is tied to identity, culture and family and is informed by the cultural protocols of the area within which one’s identity is based.
Relatedly, this Chapter also highlighted it is usually the hierarchies of privilege that allow non- Indigenous perspectives to exercise control over definitions and categories of cultural property.494 It is important for policy and law makers to be aware that such power structures exist and exercise caution when defining terms such as ‘authenticity’. Such an approach to defining terms carries the risk of not being representative of Aboriginal perspectives or meaning.495 An approach to addressing such challenges is to use Aboriginal Terms of Reference as a framework when considering concepts and definitions. Aboriginal Terms of Reference allow Indigenous meanings and values to be attached to words that may be used to address Inauthentic Art and Craft and propose solutions. This ensures that Indigenous perspectives are recognised and not framed within non-Indigenous understandings of ‘authenticity’. This is important because Aboriginal Terms of Reference suggest that even
492 Handler (n 313) 2. 493 Indigenous Art Code submission (n 336) 1. 494 Arewa Paper (n 320) 25. 495 Eades (n 316) 25. 110
when Indigenous and non-Indigenous people use the same term, such as ‘authenticity’, the word carries different meaning and value depending on the perspective from which it is understood. In that sense, the use of the same word could mean completely different things from Indigenous and non-Indigenous views.
The Chapter has also identified challenges with previous attempts to define or control ‘authentic’ art and craft products through the unsuccessful Label of Authenticity. One of the criticisms was the requirement of Aboriginal and Torres Strait Islander artists to prove their identity, and in turn, confirm what they create is authentic. The 2017 Inquiry recommendations and proposals for reform should reflect on the past failures of the scheme to ensure the same mistakes relating to authenticity schemes are not repeated. In taking into account the literature and evidence set out in this Chapter, I suggest that models of law reform to address Inauthentic Art and Craft proposed in Chapter 7, must closely consider the meaning and value attached to the term ‘authenticity’ from an Indigenous perspective. This is to ensure that such models for reform adequately address concerns raised by Aboriginal and Torres Strait Islander people.
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Chapter 5
The Impacts of Inauthentic Art and Craft identified by Aboriginal and Torres Strait Islander people
5.1 Introduction This Chapter positions Inauthentic Art and Craft and its impacts as part of the ongoing process of colonisation in Australia. This is arrived at by establishing the colonial framework within which Inauthentic Art and Craft exists and how it impacts Aboriginal and Torres Strait Islander people. In particular, this Chapter explores the impacts of Inauthentic Art and Craft on Aboriginal and Torres Strait Islander people and communities as identified by the evidence provided to the 2017 Inquiry. The purpose of identifying the impacts of Inauthentic Art and Craft is to assess whether the proposed solutions to address the issue, as discussed in Chapter 6 of this thesis, reflects the impacts raised by Aboriginal and Torres Strait Islander people participating in the 2017 Inquiry.
The primary focus on Aboriginal and Torres Strait Islander perspectives has been selected due to the cultural expression of Aboriginal people being misused to create and sell Inauthentic Art and Craft. After reviewing all the evidence presented to the 2017 Inquiry, I have identified six general categories as broadly being impacted by the manufacture and sale of Inauthentic Art and Craft, including: a) the health and wellbeing of Aboriginal and Torres Strait Islander people; b) culture and cultural practices of Aboriginal and Torres Strait Islander people; c) Australia’s national identity; d) financial status of Aboriginal and Torres Strait Islander artists and communities; e) creativity of Aboriginal and Torres Strait Islander artists; and f) consumers engaging with and purchasing Aboriginal art and craft products.
Given the scope restraints of this thesis, the impacts of Inauthentic Art and Craft listed at items a) and b) only will be explored in this Chapter. This means that the other impacts identified above c) through to f), including the economic impacts of Inauthentic Art and Craft at an individual, community or national level are outside the scope of this thesis. This is not to suggest that such other impacts are not integral to addressing Inauthentic Art and Craft.
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I address the cultural and health and wellbeing impacts identified by Aboriginal and Torres Strait Islander people because such impacts were frequently spoken about throughout the Inquiry and identified as major impacts that are also connected to one another. I also focused on the specific cultural impacts because it is arguably challenging for the wider public and policy makers to understand and gauge cultural impacts, compared to economic impacts which can generally be measured and understood from an economic standpoint. The risk of policy makers not being able to understand the cultural impacts is that such impacts are unlikely to be incorporated into the proposed solutions to address Inauthentic Art and Craft. My research fills this gap by presenting and highlighting the cultural harms articulated by Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry to bring awareness to their existence and ensure that such impacts are not lost or left out of the formulation of proposed reforms to address Inauthentic Art and Craft.
The identification of a range of impacts aligns with the view that artists usually report a variety of harms associated with the Inauthentic Art and Craft.496 While this Chapter addresses two separate but connected impacts of Inauthentic Art and Craft as articulated by Aboriginal and Torres Strait Islander people (broadly, wellbeing and cultural impacts), the submissions to the 2017 Inquiry recognise the issue itself is multifaceted. This means that the impacts of Inauthentic Art and Craft are also varied and impact multiple parties. This is also acknowledged through the assertion that Inauthentic Art and Craft ‘disenfranchise everyone involved’.497
While some impacts of Inauthentic Art and Craft are identified through the 2017 Inquiry and emphasised by participants more than others, it is important to note that the Terms of Reference did not directly seek evidence on the impacts of Inauthentic Art and Craft. Many of those contributing to the 2017 Inquiry voluntarily identified the impacts of Inauthentic Art and Craft when addressing issues associated with the Terms of Reference and 2017 Inquiry more broadly. In that regard, 38 out of the 162 written submissions followed a template version of a written submission to the 2017 Inquiry which included the following question related to impacts,
496 Paul O’Halloran, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 88, undated) 1 (‘Paul O’Halloran submission’). 497 Jade Belfour, Exhibit 3 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 2. 113
‘Question 1 – How does Fake Aboriginal and Torres Strait Islander Art effect [sic] you and your community? Why is it important to do something about this?’498
Because the 2017 Inquiry did not directly seek evidence on the impacts of Inauthentic Art and Craft directly, it means that some participants provided evidence on the impacts and others have not. On that basis, it is difficult to provide a general ranking of priority of impacts; however, as a general observation, Aboriginal and Torres Strait Islander people spoke frequently and strongly about the negative impacts that Inauthentic Art and Craft has on culture and cultural practices. Such negative impacts were expressed from an emotional and spiritual standpoint due to Inauthentic Art and Craft interfering with the exercise of obligations relating to cultural practice and expression. In particular, evidence to the 2017 Inquiry revealed that the negative impacts were a result of Inauthentic Art and Craft encroaching on Aboriginal peoples’ ability to fulfil obligations to country, their own people (including ancestors) and to maintain culture.499 The evidence made it clear that Inauthentic Art and Craft disrupts the obligations that Aboriginal people possess and practice with respect to their culture and cultural expression.
This Chapter gives priority to the voices of Aboriginal and Torres Strait Islander people who articulate the impacts of Inauthentic Art and Craft500 with the invitation to those reading this thesis to have their minds open to the colonial underpinnings of Inauthentic Art and Craft and ongoing effects it has on Aboriginal people. The benefit of doing so is to fully comprehend and understand the need for reform and use that comprehension to take steps to support change. This Chapter therefore challenges the idea that the solution to address Inauthentic Art and Craft is simply about the recognition of rights pertaining to Aboriginal and Torres Strait Islander people; deeper and more fundamental changes are needed.
5.2 Contextualising impacts within a colonial framework It would be a mistake to consider the impacts of Inauthentic Art and Craft as described by Aboriginal people throughout the 2017 Inquiry without contextualising such impacts within Australia’s colonial framework. This is because Inauthentic Art and Craft and its effects do not exist in isolation or without an ideological foundation. As noted by Brennan and Savage,
498 Template submission created and distributed by Arts Front. 499 Desart submission (n 229) 3. 500 SAGE Publications, The Sage Encyclopaedia of Qualitative Research Methods (at 17 November 2019) ‘Fieldwork’ 347. 114
exploitation of cultural expression is part of the architecture of colonial achievement.501 It therefore follows that the existence of Inauthentic Art and Craft and the way in which it impacts Aboriginal people is supported by and grounded in past and present-day colonial occupation and power. This has not been achieved accidentally, but rather through deliberate and systematic application of ideologies, polices and laws to Aboriginal presence in Australia by colonial powers of authorities, institutions and individuals.502 Arguably, to not view the connection between colonisation and Inauthentic Art and Craft is to not recognise the reality of the Australian state’s continued existence and control. From a colonist’s standpoint, refusing to see and know Aboriginal people, or not knowing how to see Aboriginal people, is a way to claim ignorance.503
Professor Watson refers to American author bell hooks who labels such claims of ignorance as ‘white supremacy’, the power to make black invisible, erasing all traces of individuality.504 One could apply bells hook’s sentiment of ignorance and invisibility to the experience of Aboriginal people in the context of Inauthentic Art and Craft. Despite decades of Court cases, reports, inquiries and proposals for reform for recognition of ICIP rights – there still lies a sense of not knowing or understanding the issues, demonstrated by questions continuously being asked about Inauthentic Art and Craft and what can be done to fix the problem.505 It is as if Aboriginal and Torres Strait Islander people have not been seen or heard on this issue. Adding to this, Professor Behrendt suggests there is an underlying mentality that exists to guard the rights and benefits that are given to citizens within a community which assume that if those rights and benefits are extended to the culturally distinct or historically marginalised, that they – the white middle class - may be worse off.506 This world view ‘sees the recognition and protection of the rights of the culturally distinct as being in direct competition with their own position’.507 This argument may explain why there has been a lack of legislative action to stop Inauthentic Art and Craft, particularly it calls for recognition and protection of Aboriginal and Torres Strait Islander rights, and that in some sense, the wider dominant public will be losing out in the process if such rights are recognised.
501 Brennan and Savage (n 65) 148. 502 Gilbert (n 82) 145. 503 Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015) 56. 504 bell Hooks, Killing Rage, Ending Racism (Henry Holt & Co, 1995) 35 cited in Watson (n 503) 56. 505 Commonwealth, Inquiry into Australia’s Indigenous art and craft sector (Report, 2007); Carpets Case (n 24); Bulun Bulun (n 138); Janke and Michael Frankel and Company (n 100); Birubi Decision (n 7); Birubi Penalty Case (n 8). 506 Behrendt (n 18) 37. 507 Ibid. 115
As discussed in Chapter 1, policy and legal frameworks that are embedded in regimes of control and power have not fully permitted Aboriginal people to achieve such goals of autonomy and self-determination.508 Many of the harms and inflictions against Aboriginal people relied on Australian law for their legitimacy and were aimed at destroying Aboriginal culture. Chris Cunneen identifies that such harms are cultural harms in the broadest sense: colonial laws and policies that sought to assimilate and civilise Aboriginal people through the establishment of reservations, denial of citizenship rights, forced removal of children, the prohibiting of language, cultural and spiritual practices and the imposition of an foreign criminal justice system.509 Cunneen questions whether the law can now provide justice for Aboriginal people.510 While such laws may have been abolished from a legal standpoint, the underlying ideologies and impacts of protectionist and assimilationist policies continue to exist in Australia.
Professor Watson speaks of this in the context of Nunga511 communities across Australia, where the continuation of such polices are evidenced by high imprisonment rates, deaths in custody, mental illness, substance abuse, chronic health conditions and poverty.512 These are all social and economic indicators of being placed at the bottom of the colonial power and hierarchy.513 Professor Watson asserts that the intergenerational impact of colonialism is a ‘phenomenon that has never ended’,514 with the ongoing objective to ‘annihilate the core identity’ of Aboriginal and Torres Strait Islander people and ‘smother relationships to law, land and the natural world’.515
Throughout the 2017 Inquiry, Aboriginal and Torres Strait Islander people presented evidence strongly rejecting Inauthentic Art and Craft because of the way in which it exploits and destroys Aboriginal culture and cultural expression, which adds to the notion that Inauthentic Art and Craft is a product of ongoing colonialism in Australia. As stated by Professor Arewa in Chapter 2 of this thesis, hierarchies of power established by previous regimes, similar to the regimes
508 Gilbert (n 82) 145. 509 Chris Cunneen, ‘Colonialism and Historical Injustice: Reparations for Indigenous Peoples (2015) 15(1) Social Semiotics 59, 60. 510 Cunneen (n 509) 60. 511 A term of self-reference used to describe Aboriginal people of southern South Australia. 512 Watson (n 503) 57. 513 Ibid. 514 Ibid 8. 515 Ibid 13. 116
referred to in Queensland above, have privileged white institutions and governing bodies in that hierarchy to identify, define and control what is of value and cultural importance, and what is not. In the context of this thesis, this is exemplified through the continued exploitation of Aboriginal culture in the form of Inauthentic Art and Craft and inability of Aboriginal and Torres Strait Islander people to exercise legal control over their cultural expressions.
Eve Fels argues that every single Aboriginal person in Australia lives with the stigmas and stereotypes that are a direct product of colonisation.516 In the context of Inauthentic Art and Craft, an arguable stereotype that exists is the homogenised representation of Inauthentic Art and Craft attached to Aboriginal people by non-Indigenous businesses and individuals. In the Birubi Decision, the Court heard of the internet searches undertaken by the non-Indigenous director of the non-Indigenous business to select Aboriginal designs and symbols that he thought ‘would make a good product’.517 Arguably, this conduct is an example of the stereotype that has been manufactured and maintained by non-Indigenous producers of Inauthentic Art and Craft who exploit and reinterpret cultural expression for profit. When non-Indigenous individuals and businesses reinterpret and market Aboriginal culture for their own benefit and profit, they take away Aboriginal and Torres Strait Islander artists’ autonomy to represent themselves to the wider Australian and international community. While Professor Watson speaks to the role of anthropologists, analogies can be drawn with the role of producers of Inauthentic Art and Craft, who have ‘assumed the power to create and take identity’ and have become ‘our examiners, grading culture and laws in accordance with their own perceptions of correctness’.518
Such self-appointed roles of authority reflect a paternalistic viewpoint over Aboriginal people lives, which has been argued as ‘one of the great fantasies of colonialism, still alive in the Indigenous affairs bureaucracies of the world, is the idea that ‘we know what’s best for you’. But we don’t.’519 In effect, non-Indigenous individuals and businesses through their manufacture and sale of Inauthentic Art and Craft influence and perpetuate cultural perceptions of Aboriginal identity, which according to Waldron and Newton is likely to result in battles of
516 Eve Fesl, Colonisation and Mabo (Paper presented to post-colonial formations conference, 1993) cited by Gilbert (n 82) 146. 517 Birubi Decision (n 7) 44. 518 Watson (n 503) 73. 519 Sarah Maddison, The Colonial Fantasy: Why White Australia can’t Solve Black Problems (Allen and Unwin, 2019) xxiii. 117
ownership and representations of Aboriginal culture.520 As noted by Brennan and Savage in Chapter 1 of this thesis, such businesses and individuals are now labelled as ‘the new colonists’ of Aboriginal people and culture.521
Speaking from a Canadian perspective, de Beer and Dylan assert that Western legal thinking privileges the values accorded to colonial doctrine, while assigning Canadian Aboriginal peoples a subordinate role.522 Like the experience of Aboriginal people in Australia, while Indigenous people in Canada have suffered the violence of colonisation, in a modern context Aboriginal identities and cultures continue to be colonised by the ever present Eurocentric worldview.523 This is also the case with Inauthentic Art and Craft by the way in which non- Indigenous parties have continued to exploit, interpret and profit off Aboriginal cultural expression to the exclusion of Aboriginal people. Echoing the concerns raised by Aboriginal people throughout the 2017 Inquiry in the context of the impacts of Inauthentic Art and Craft, De Beer and Dylan quote Marie Battiste and James Henderson, ‘Survival of Indigenous Peoples is more than a question of physical existence; it is an issue of preserving Indigenous knowledge systems in the face of cognitive imperialism’.524
Battiste and Henderson’s viewpoint positions issues like Inauthentic Art and Craft as a product of continued colonial occupation in Australia. Yellowknife Dene scholar Glen Coulthard bolsters this view by arguing that even though modern day colonial powers do not explicitly exercise their dominance around polices of ‘genocidal exclusion/assimilation’ they continue to reproduce the same power relations ‘through a seemingly more conciliatory set of discourses and institutional practices that emphasises [Indigenous] recognition and accommodation’.525 Despite the change in form, Coulthard asserts that ‘the relationship between Indigenous peoples and the state has remained colonial to the foundation’.526 The perspective shared by Coulthard
520 David Waldron and Janice Newton, ‘Rethinking Appropriation of the Indigenous, A Critique of the Romanticist Approach’ (2012) 16(2) The Journal of Alternative and Emergent Religions 64, 70. 521 Brennan and Savage (n 65) 151. 522 Jeremy de Beer and Daniel Dylan, ‘Traditional Knowledge Governance Challenges in Canada’ in Matthew Rimmer (ed) Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing Limited) 517, 522. 523 Ibid. 524 Marie Battiste and James (Sakej) Youngblood Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Purich Publishing Ltd, 2000) 12 cited by De Beer and Dylan (n 522) 522. 525 Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minnesota University Press, 2014) 6 cited by Maddison (n 519) xxvii. 526 Ibid. 118
is equally applied and relevant to the relationship between white Australian governing bodies and institutions and Aboriginal people.
In applying Coulthard’s position with respect to Inauthentic Art and Craft, concepts of Aboriginal ‘recognition’ or ‘accommodation’ within existing legal structures around cultural expression are unlikely to yield positive results, so long as the core of that relationship with Aboriginal people remains cloaked in the colonial experience. There has been some evidence presented to the 2017 Inquiry by non-Indigenous people that reflect the misconception that colonialism has ended, such as the following, ‘in a sense, you would argue, finally we’ve given – you know, we’re actually allowing Aboriginal people the agency to express themselves and to benefit from that, and then we’re kind of taking it away again’.527 This evidence reflects an assumption that Aboriginal people have already been restored to a particular level of agency in society, and Inauthentic Art and Craft is viewed as something that takes away from that agency.
Professor Watson asserts that the trauma of colonialism has never ended other than in the imaginings of the colonist,528 which is a view highlighted throughout evidence by Indigenous and non-Indigenous people. Professor Watson and Coulthard shine light on the extent of internal reflective work that is required by white authorities, businesses and individuals to recognise and then dismantle the colonial foundation of their relationship with Aboriginal people, and in doing so, end Inauthentic Art and Craft and other impacts of ongoing colonisation in Australia.
The evidence of the Association of Northern, Kimberley and Arnhem Aboriginal Artists supports the notion that the principle responsibility to solve Inauthentic Art and Craft should be placed on those perpetuating the injustice and not on Aboriginal people who are already financially and socially disadvantaged.529 One must question whether such reflection and subsequent action is achievable given that colonial power is the source of white authority and control in this country. Arguably, to reflect and demolish such a relationship undermines the entire basis of white establishment in Australia. On the contrary, and as articulated further below, Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry have
527 Alec Coles, Exhibit 9 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 4. 528 Watson (n 503) 19. 529 ANKAA submission (n 337) 11. 119 enunciated a clear awareness of the existing colonial relationship underlying Inauthentic Art and Craft and the way in which it maintains colonial conquest. It is important to set up the colonial framework to allow the impacts of Inauthentic Art and Craft to be viewed and understood through that lens. In Chapters 6 and 7 of this thesis I explore how the Australian government might approach the regulation of Inauthentic Art and Craft in a way that understands such colonial foundations, in an attempt not to replicate them.
5.3 Evidence reflecting the colonial origins of Inauthentic Art and Craft Aboriginal images constructed by non-Indigenous individuals typically remain romanticised or negative.530 According to Nielsen the image of the ‘Aboriginal’ has been created and recreated to substantiate such romanticised or negative constructs, with non-Indigenous people taking on the duty to define what is ‘Aboriginal’. Evidence presented to the 2017 Inquiry by Julie Purcell reflects the view of Nielsen in the context of Inauthentic Art and Craft: I am not an Indigenous Australia, but I still find this highly offensive as I know substantial profit is made from misrepresentation (stores are glittering, huge and economically successful) this kind of ‘romanticised’ view of Indigenous culture presents an easily digestible image of cultural relations in Australia which ignores (and presents a rose tinted vision of) the current injustices experienced by First Nations people in cites and regional areas alike.531
The defining and positioning of Aboriginal people by non-Indigenous people through such imagery of romanticised or negative then becomes the ‘non-Indigenous persons’ truths’,532 which ultimately means that the Aboriginal perspective of ones’ self is denied or dismissed.533 This is demonstrated through the creation of Inauthentic Art and Craft which removes the right of Aboriginal and Torres Strait Islander people to present and express themselves and instead imposes a non-Indigenous perspective of Indigenous people and cultural expression. The evidence before the 2017 Inquiry indicates that some non-Indigenous individuals are aware of the colonial underpinnings of Inauthentic Art and Craft. Such evidence occurs less frequently than the evidence of Aboriginal and Torres Strait Islanders, who articulate a strong awareness of Inauthentic Art and Craft existing within the ongoing colonial ideology in Australia. A
530 Jennifer Nielsen, ‘Images of the ‘Aboriginal’: Echoes from the Past’ (1998) 11(1) Australian Feminist Law Journal 83, 84. 531 Julie Purcell, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 58, 2 November 2017) 1 (‘Julie Purcell submission’). Author’s emphasis. 532 Nielsen (n 530) 85. 533 Ibid. 120 selection of evidence identifying the colonial influences presented to the 2017 Inquiry is set out below.
When asked about the impact that Inauthentic Art and Craft has on the Aboriginal art ‘brand’, artist Vernon Ah Kee speaks to the construction of Aboriginal imagery imposed by non- Indigenous people: I mean Australia - you could hold Australia up as an example of a country or culture that prides itself on its Aborigines in a really, really kind of surface, paper-thin way.’ ‘And, you know, I think this country…the populace in this country – like to think of itself as, you know, having the best natives, you know’, and ‘we’re all complicit in this. I think this is one of the countries that trades on the exotica of Aborigines – of native people in general – which is really kind of a little disturbing, I think.534
In this context, Ah Kee identifies the way in which Inauthentic Art and Craft portrays a particular type of image of the ‘Aboriginal’ created by non-Indigenous people and presented to the world, which Nielsen confirms as usually being romanticised or negative.535 Concepts explored by Professor Arewa,536 Brennan and Savage537 and Nielsen538 are present in the evidence of artist Gordon Hookey when he is asked to respond to the theft of Aboriginal culture in the context of Inauthentic Art and Craft: Given that we've had our whole land and everything stolen and, like, it's a continual thing. It's like cultural colonialism, basically. I mean, I was just talking to, you know, my friend Judy just a while ago, and she showed me this little photo of a snippet of some traditional-oriented work, and it's got, you know, a headline on the top or some text on the top, going—or, you know, 'Wonderful, beautiful traditional art from our natives', or 'from our Aboriginal people'. It's like they own what we do. They own us, but only on their terms. There is, like, a power relation there, which is, you know, a very colonial way of thinking.539
Hookey, in his evidence, identifies the way in which the ‘colonial way of thinking’ contributes to the use of styles and images of Aboriginal people and culture in the form of Inauthentic Art and Craft. Reflecting Professor Coulthard’s view that the State’s relationship with Indigenous
534 Vernon Ah Kee exhibit (n 85) 3. Author’s emphasis. 535 Nielsen (n 530) 84. 536 Arewa Paper (n 320) 40. 537 Brennan and Savage (n 65) 148. 538 Nielsen (n 530) 85. 539 Gordon Hookey exhibit (n 365) 4. Author’s emphasis. 121
people has remained ‘colonial to the foundation’,540 Hookey continues with this evidence to the Inquiry: ‘Well, it's all part of the colonial psyche, you know. It's something that—I mean, you can hit us with the terms, you know, 'postcolonial' and 'colonialism' and all those prefixes and suffixes and, you know, that are on that term 'colonialism', but it's the same old for us. It's the same old, you know, colonialism, and it's within, you know, governmental thinking and the thinking today. So, you know, like, it's, you know, hard to fight and struggle for us to—yeah.541
Professor Watson’s view that ‘colonialism is a phenomenon that has never ended’,542 permeates throughout the evidence submitted by Aboriginal and Torres Strait Islander people to the Inquiry, including in the evidence identified below. This is featured in submissions that characterise Inauthentic Art and Craft as continuing to ‘take away’ culture as part of the ongoing colonial authority imposed on Aboriginal people in Australia. An analysis of the evidence also highlights an explicit recognition by Aboriginal Torres Strait Islander people that Inauthentic Art and Craft forms part of a multitude of other harms and losses experienced at the hand of colonial intrusion.
When asked about the impact of Inauthentic Art and Craft on the Aboriginal community, artist Richard Bell responds in part, ‘And you know, for our people, we have a whole continent taken from us. Most of what we have left is cultural, so you know, to do this is quite, you know, the end’.543
Artist, Leeton Lee similarly adds ‘We as people have had enough taken from us let alone to continue to be exploited’.544
Artist Bereline Loogatha explains why Inauthentic Art and Craft is viewed as an ongoing harm to the existence of Aboriginal people and culture: ‘Everything that goes into an artefact or painting is a part of us, it’s a part of our culture, and it’s a part of our language. To me, it feels like we’re being done over again as Indigenous people’.545
540 Coulthard (n 525) xxvii. 541 Gordon Hookey exhibit (n 365) 4. Author’s emphasis. 542 Watson (n 503) 8. 543 Richard Bell exhibit (n 86) 2. 544 Leeton Lee, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 15, 13 October 2017) 1. Author’s emphasis. 545 Bereline Loogatha submission (n 443) 3. Author’s emphasis. 122
Further, Philip Rist states, ‘It’s an insult to our mob, it’s an insult to our culture, and it’s an insult to our history and our people and recognising the troubles that we’ve had in the past’.546
Such views expressed by Aboriginal people support the notion that Inauthentic Art and Craft does not exist in isolation and is supported by ever present current day colonial ideologies that have continued in one form or another since first contact.
Throughout the 2017 Inquiry, non-Indigenous viewpoints also recognised the connection between Australia’s colonial impact and the existence of Inauthentic Art and Craft. The City of Sydney provided evidence which arguably positions colonisation as an act that has already occurred, ‘Fake Indigenous art also suffocates the opportunity for Aboriginal communities that have been impacted heavily by colonisation to re-establish their cultural identity and cultural expression within these high traffic gateways to Australia’.547
Roslyn Hall provides evidence which reflects an awareness that colonisation and the exploitation of Aboriginal people continues to exist in Australia: I have travelled widely in Australia and am appalled at the fake Aboriginal art for sale in every tourist place. That they continue to be ripped off in this way – especially in the context that this has been happening in one way or another since our invasion and how they continue to suffer.548
The evidence of the Community Arts Network Western Australia Ltd suggests that Inauthentic Art and Craft is an act of ‘recolonisation’ as it, ‘It recolonialises a culture whose turn and time to be respected has surely arrived.549
546 Philip Rist, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 107, undated) 3 (‘Philip Rist submission’). Author’s emphasis. 547 City of Sydney, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 93, 8 November 2017) 1. Author’s emphasis. 548 Roslyn Hall, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 27, 9 September 2017) 1. 549 Community Arts Network Western Australia Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 69, 3 November 2017) 1. 123
The evidence provided in this section echoes Coulthard’s assertion that whichever way one tries to examine or breakdown the relationship between the State or government authorities and Indigenous people, the relationship remains ‘colonial to its foundation’.550
5.4 The impact of Inauthentic Art and Craft on Aboriginal and Torres Strait Islander culture Authors have recognised the cultural distinctiveness of Indigenous peoples across the globe and the common and inherent need to protect ‘culture’ or ‘cultural heritage’.551 There is general recognition that Indigenous people’s culture includes spirituality and all that belongs to the identity of a particular people.552 This is demonstrated through Irwin, Rogers and Wan’s research in relation to Indigenous people in particular parts of Australia, Canada and Taiwan. While there was recognition that the three groups were very different from each other in terms of cultural practice, there was a presence of key commonalities of belief and attitude.553 One of the common traits shared between the three groups was the deep relationship with the land and respect toward the land and society which belongs to that land.554 Authors surmised that such commonalities of connections and cultural identities were apparent in the artists living and working in each of the particular communities.555 The research found that in each community, artists spoke openly about their cultural beliefs and displayed a common ‘reverence’ for what has been, is and will be the importance of place, where they come from and the responsibility they have towards the land.556 It was found that artists who identified as Indigenous people in those communities were deeply grounded in relationships with the land.557
Professor Watson affirms that Aboriginal and Torres Strait Islander law is about ‘principles’, including the principle of respect. The principle of respect exists for all humanity, environment,
550 Coulthard (n 525) xxvii. 551 Mauro Barelli, ‘The United Nations Declaration on the Rights of Indigenous peoples: A Human Rights Framework for Intellectual Property Rights’ in Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing, 2015) 47, 47. 552 Barelli (n 551) 47. 553 Rita Irwin, Tony Rogers and Yuh-Yao Wan, ‘Belonging to the Land: Understanding Aboriginal Art and Culture’ (1997) 16(3) The International Journal of Art and Design Education 315, 315. 554 Irwin, Rogers and Wan (n 553) 315. 555 Ibid 318. 556 Ibid. 557 Ibid. 124
plants, birds, animals and the natural world in its entirety.558 It is a worldview that supports the capacity of Aboriginal people to care for country and all relations within an Aboriginal persons’ existence.559 The continuous relationship that Aboriginal people have with ancestors is also a guiding force in the connection with culture and cultural expression. As described by Professor Watson, ‘A relationship that links us to the past is a connection that is lived in the present and to be recreated in the future. This is the cycle of our ancestors’.560
Australian Courts have also witnessed the articulation of the connectedness between Aboriginal people and their cultural expressions as being integral to the transference and reaffirmation of specific knowledges, traditions and heritage.561 The nexus between cultural expression, land, heritage and spirituality serves as the foundation of the practice and creation of Aboriginal cultural expression or art.562 Professor Watson identifies the nexus as ‘relational philosophy’ which is embedded in Aboriginal and Torres Strait Islander knowledge systems that belong to a people, who belong to the land.563 Obligations exist to protect the ancestral and land relationships, including the ongoing transmission of cultural knowledge through cultural expression.564 Aboriginal and Torres Strait Islander people consistently reflect the concept of relational philosophy throughout the Inquiry by speaking strongly about connections to family and ancestors and obligations to land being tied to cultural expression. When viewed in this way, the consequence of Inauthentic Art and Craft is that it interferes with the existing obligations that Aboriginal and Torres Strait Islander people have to maintain and transmit cultural knowledge and expression to future generations.
It therefore follows that in order for non-Indigenous parties to comprehend and consequently address the issue of Inauthentic Art and Craft, there must be an awareness of the culture of Aboriginal and Torres Strait Islander people that is connected to family, ancestors and the land. For reasons discussed further in this Chapter, authors like Bault would suggest that such a request by Indigenous people of the ‘West’ or governing statess is not possible.
558 Watson (n 503) 31. 559 Ibid 12. 560 Ibid 13. 561 Anderson (n 130) 140. 562 Ibid. 563 Watson (n 503) 13. 564 Ibid. 125
In the context of this Chapter, it can be said that ‘culture’ refers to all things that make up and include the cultural expression of Aboriginal and Torres Strait Islander people, including stories, song, dance, knowledge and language. This may apply broadly to all Aboriginal and Torres Strait Islander people, but also within distinct and separate groups within which Aboriginal and Torres Strait Islander people relate. Through written submissions and video exhibits provided to the 2017 Inquiry, Aboriginal and Torres Strait Islander participants utilised a range of words and phrases to describe the impact that Inauthentic Art and Craft has on their culture. The most prevalent response from Aboriginal or Torres Strait Islander contributors to the Inquiry was that the proliferation of Inauthentic Art and Craft equates to a ‘loss’ and ‘theft’ of culture.565 The evidence presented by Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry is a direct challenge to and rejection of the assumed right of non- Indigenous businesses and individuals to use Aboriginal cultural expression without permission. According to Coleman, while the primary motivation of a producer of Inauthentic Art and Craft is financial gain,566 the evidence submitted to the 2017 Inquiry illustrates the wide ranging and harmful effects it has on Aboriginal and Torres Strait Islander people and culture, and not just from a financial standpoint.
Aboriginal and Torres Strait Islander people employed range of words to describe the impact that the manufacture and sale of Inauthentic Art and Craft has on culture. As noted at the beginning of this Chapter, it is gleaned from the evidence to the 2017 Inquiry that such descriptors are being used from an emotional and spiritual standpoint, based on Inauthentic Art and Craft interfering with obligations that Aboriginal and Torres Strait Islander people possess in the expression and transmission of their own culture. Because of this interference, Aboriginal and Torres Strait Island people articulated that the existence of Inauthentic Art and Craft means
565 Palngum Wurnangat Art Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 45, 31 October 2017) 1; Martumili Artists’ submission (n 440) 2; Arts Ceduna submission (n 108) 1; Roanna Jacob submission (n 422) 3; Bereline Loogatha submission (n 443) 3; Samantha Cook, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 110, 3 November 2017) 3; John Smith Gumbula, Exhibit 2 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 2 (‘John Smith Gumbula exhibit’); Richard Bell exhibit (n 86) 2. 566 Coleman (n 77) 24. 126 that culture is: ‘exploited’, 567 ‘violated’,568 ‘denied’, 569 ‘demeaned’,570 ‘insulted’,571 ‘devalued’, 572‘undermined’,573 ‘disrespected’,574 ‘disregarded’,575 and ‘misrepresented’.576 Further, the existence of Inauthentic Art and Craft was also described as ‘tearing at the fabric of culture’577 which in the words of Aboriginal and Torres Strait Islander people, meant that their culture had been ‘hurt’,578 ‘harmed’,579 ‘destroyed’,580 and ‘damaged’.581 The 2017 Inquiry evidence highlights that Aboriginal people used the above words to describe the impact of Inauthentic Art and Craft as applying to themselves as a group of people, in addition to their culture.
Richard Bell through his own evidence recognises that Inauthentic Art and Craft has a range of impacts, but highlights that it ‘has a much more insidious effect, and that’s the cultural
567 Philip Rist submission (n 546) 3; Gordon Hookey exhibit (n 365) 3. 568 Debbie Taylor, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 12, 13 October 2017) 1. 569 Delvene Cockatoo-Collins, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 67, 3 November 2017) 1 (‘Delvene Cockatoo-Collins submission’). 570 Terri Janke and Company Pty Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 73, undated) 1 (‘Terri Janke and Company submission’). 571 Philip Rist submission (n 546) 3. 572 Bianca Beetson, Exhibit 5 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 2 (‘Bianca Beetson exhibit’). 573 Carol McGregor, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 7, 30 September 2017) 1 (‘Carol McGregor submission’). 574 Gapuwiyak Culture and Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 134, undated) 2. 575 Stephanie Parkin, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 79, 3 November 2017) 1 (‘Stephanie Parkin submission’). 576 Joyce Summers, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 74, 3 November 2017) 1. 577 Trisha Newton, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 43, 31 October 2017) 1. 578 Narelle Holland submission (n 441) 2. 579 Beth Inkamala, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 32, 14 September 2017) 2 (‘Beth Inkamala submission’); Betty Muffler, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 122, 9 September 2017) 2 (‘Betty Muffler submission’). 580 Marjorie Williams, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 115, undated) 3 (‘Marjorie Williams submission’). 581 Glenn Iseger-Pilkington submission (n 108) 3. 127
one’.582 This view is also reflected in the evidence of Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry, who use a range of words and statements to describe their anguish at the way in which Inauthentic Art and Craft negatively impacts culture, including that Aboriginal culture is ‘stolen’ through the existence of Inauthentic Art and Craft.
Professor Matthew Rimmer sheds some light on the dilemma by referring to Richard Bell and his observations about Aboriginal art and how it exists to service a Western art market ‘Aboriginal Art is bought, sold and promoted from within the system, that is, Western Art consigns it to ‘Pigeon-holing’ within that system’.583 Richard Bell’s paper titled ‘Aboriginal art – It’s a White Thing!’ goes on to state that ‘It is a great source of discomfort to Aboriginal People that Aboriginal Art is not controlled by Aboriginal people’.584 This statement is echoed throughout many of the submissions to the 2017 Inquiry where Aboriginal people detail the distress over the ‘theft’ of culture by non-Indigenous people and not being able to control the creation and dissemination of cultural expressions. According to Richard Bell, Aboriginal artists view the Western concept of ‘appropriation’ as stealing because the Indigenous artist may not be the sole owner of the story or imagery depicted, the sharing of art imagery between the ‘coloniser’ and ‘colonised’ may be incorrectly viewed as an ‘equitable’ agreement between the parties and Indigenous cultures around the world are not for sale and ownership of this one remaining asset will be defended vigorously.585
Where Aboriginal cultural expression is taken and used without permission (as through the existence of Inauthentic Art and Craft), it has been argued that Aboriginal people are treated as objectified sources of inspiration rather than participants in the sharing or exchange of ideas.586 Such a process acts to reproduce colonial domination by reducing ‘living people and culture to the status of objects’.587 Similarly, the process allows non-Indigenous businesses and individuals to act as if the Aboriginal cultural expression belongs to that non-Indigenous business or individual.588
582 Richard Bell exhibit (n 86) 2. 583 Rimmer (n 319) 158. 584 Richard Bell, ‘Aboriginal Art – It’s a White Thing!’ Bells Theorem (Web page, November 2002)
As explored further in this thesis, the Court in in the Birubi Decision heard evidence on the process employed by the non-Indigenous director of Birubi to select Aboriginal designs for use in Inauthentic Art and Craft.589 Such conduct reflects a sense of entitlement or authority over the use of Aboriginal cultural expression. Professor Watson adds a layer of perspective to such conduct by characterising the appropriation of culture as a way for the muldarbi590 to ‘legitimise its own unlawful identity’.591 When viewed through this lens, Inauthentic Art and Craft could be used as a way for non-Indigenous people to legitimise their own existence in the colony, particularly where attempts at lawful possession of Australia through terra nullius have been dispelled.592 Professor Watson describes the toxicity of such relationship between cultural appropriators and Indigenous people: It is a kind of sickness that prompts cultural appropriators to want to be Indigenous and to cannibalise us, while ignoring its role within a colonial settler state society and its history of centuries of attempted annihilation of Indigenous people across the world. 593 In the midst of this, we are left to educate the non-Indigenous about their own madness and history of colonialism.594
This view is relevant to Inauthentic Art and Craft, where the 2017 Inquiry, past Court cases, reports and other inquiries, act as a mechanism through which Aboriginal and Torres Strait Islander people have consistently attempted to inform non-Indigenous governing bodies and individuals about the importance of cultural expression. In addition to the impacts that occur when such expression is exploited through Inauthentic Art and Craft or other means. Given the amount of presumed attention to the issue over decades, compared to the lack of substantial reform, it is easy for one to think that Aboriginal voices and calls for reform have fallen on deaf ears. In reference to the work of Blaunt referred to by Professor Watson above, it is surmised that ‘the West is suffering from a sickness so deep it is beyond their own field of vision’.595 Indeed, this is a persuasive statement that provides a possible answer to the long- standing inability of cultural appropriators, policy and law makers and governing bodies to
589 Birubi Decision (n 7) 44. 590 A term used by Watson to describe ‘the colonial project, or as we saw it the muldarbi. The word ‘muldarbi’ translates loosely as ‘demon spirit’, although ‘demon’ is an idea more familiar to non-Aboriginal religions’, see Watson (n 503) 1. 591 Ibid 85. 592 Mabo and others v Queensland (No. 2) (1988) 166 CLR 186. 593 Watson (n 503) 86. 594 James Blaut, ‘The Colonizer’s Model of the World: Geographical Diffusionism and Eurocentric History’ (The Guilford Press, 1st ed, 1993) cited in Watson (n 503) 86. 595 Ibid 103. 129
comprehend and address issues like Inauthentic Art and Craft. The colonial foundation of such a relationship prohibits cultural appropriators and the Australian state more broadly from having the ability to see or comprehend issues Aboriginal people face as part of the colonial relationship.
Inauthentic Art and Craft as the ‘theft’ of culture Despite the presumed inability of policy and law makers to truly see or comprehend the underlying issues or greater impacts of Inauthentic Art and Craft, Aboriginal and Torres Strait Islander people have consistently articulated the way in which Inauthentic Art and Craft impacts culture and cultural expression. In using the thick description method, I have selected particular quotes form the evidence provided by Aboriginal and Torres Strait Islander people to the 2017 Inquiry, who enunciate the way in which Inauthentic Art and Craft contributes to the ongoing ‘theft’ of culture.
Artist Bereline Loogatha from Mornington Island speaks of the conduct of those who manufacture and sell Inauthentic Art and Craft ‘It’s like they’re stealing again from us: stealing not just our art and the money, but our culture as well’.596
Bianca Beetson from the Kabi Kabi people, ‘I believe that we’ve had a lot stolen already, and they’re still stealing stuff from us. As well it’s about devaluing the work and devaluing our culture’.597
Narelle Holland of Papulankutja Artists states that, ‘The fake art hurts our culture. It is stealing’.598
Laurie Nona, artist from Badu Island speaks about the producers and sellers of Inauthentic Art and Craft, ‘They’re stealing from us and they’re getting away with the crime’.599
596 Bereline Loogatha submission (n 443) 3. 597 Bianca Beetson exhibit (n 572) 2. 598 Narelle Holland submission (n 441) 2. 599 Laurie Nona, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 152, undated) 2 (‘Laurie Nona submission’). 130
The Aboriginal Art Centre Hub of Western Australia adds ‘Fake art is stealing. It is the exploitation of Aboriginal people, culture and communities’.600
When speaking about Inauthentic Art and Craft, Aboriginal artist, John Smith Gumbula describes the situation, ‘What’s happening at the moment is cultural theft, plain and simple as that’. 601
The above and other evidence set out in this thesis has been selected in order to illustrate the extent of such impacts and how such impacts may be responded to through proposed solutions to address Inauthentic Art and Craft. In this regard, many submissions to the 2017 Inquiry spoke about how Inauthentic Art and Craft is considered to be part of the ongoing ‘theft’ of Aboriginal and Torres Strait Islander culture by non-Indigenous Australia. These are impacts are important to document and use in and measure the reforms to address Inauthentic Art and Craft.
Inauthentic Art and Craft breaks cultural protocol Evidence by Aboriginal and Torres Strait Islander people clear demonstrates that Inauthentic Art and Craft harms culture because it disrespects, disregards and breaks protocols and obligations that are in place for the creation and maintenance of such ‘art’ or cultural expressions. Jane Young from Tangentytere Artists explains further: It hurts us when people make fake Aboriginal art because that breaks our Law, our rights to our ampere602 and our atweye603. When Aboriginal Law and our Ancestors are disrespected we feel terrible pain and fear for ourselves and our family. We don’t know how to make it right, to heal the pain and protect the Law again, unless we get support from the wider community in solving this problem.604
The submission by the Darwin Aboriginal Art Fair adds to this view by stressing that ‘Aboriginal lore dictates who can replicate these ‘styles’ and colour ways even within their own family structure. Understanding cultural protocols is essential to understanding how
600 Aboriginal Art Centre Hub Western Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 98, undated) 2 (‘Aboriginal Art Centre Hub of WA submission’). 601 John Smith Gumbula exhibit (n 565) 2. 602 Meaning ‘land’, Desart submission (n 229) 2. 603 Meaning ‘family’, Ibid. 604 Desart submission (n 229) 3. 131 destructive the proliferation of inauthentic art is’.605
Miranda Farmer speaks to the obligations that Aboriginal people have to their communities when creating cultural expressions, ‘Aboriginal artists are bound by their communities, so if they’re not doing the right thing they’ll get in trouble’.606
Martumili Artists explains to the 2017 Inquiry how the relationship between art making and culture for Martu is integral to the art itself, and as a consequence, ‘Aboriginal-style’ art and craft produced without the input of Aboriginal and Torres Strait Islander people is cultural theft’.607
The Arnhem, Northern and Kimberley Artists Aboriginal Corporation makes the related statement that Inauthentic Art and Craft ‘deliberately exploits a non-existent association with Aboriginal cultural heritage’ and therefore ‘have no real meaning’.608
In considering the evidence provided by Aboriginal and Torres Strait Islander people set out above, Dennis Stokes makes an important observation about the way in which cultural expression ought to be viewed:
I think there needs to be more education from the wider community as to what can be done and what can't as well, because you're not dealing with art; you're actually dealing with people's culture. And it's their way of life, so it's not about money for the communities. I mean, it brings in money. It helps communities, but it's about the culture first.609
The 2017 Inquiry evidence articulating the impacts identified above provides valuable input to ensure that avenues for reform appropriately address cultural harm concerns. In particular, such evidence demonstrates that while Inauthentic Art and Craft does not infringe the ACL, it most certainly breaks cultural protocols that exist in Aboriginal communities and interferes with Aboriginal law. I propose that such deficiencies as highlighted by the 2017 evidence and
605 Darwin Aboriginal Art Fair, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 62, 3 November 2017) 5 (‘Darwin Aboriginal Art Fair submission’). 606 Miranda Farmer, Exhibit 13 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 3. 607 Martumili Artists submission (n 440) 2. 608 ANKAA submission (n 337) 2. 609 Dennis Stokes, Exhibit 16 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 3 (‘Dennis Stokes exhibit’). 132
existing laws are address in models for reform referred to in Chapter 7 of this thesis.
Inauthentic Art and Craft ‘harms culture’
Much of the evidence to the 2017 Inquiry also identifies how Inauthentic Art and Craft harms Aboriginal and Torres Strait Islander culture. The evidence indicates the harm caused to culture extends beyond the individual to communities and the role that culture plays in such communities. The evidence of Aboriginal and Torres Strait Islander people also supports the notion that the harms caused by Inauthentic Art and Craft are not one dimensional in that it only impacts the financial position of artists, but is multi-dimensional in its impact on culture and responsibility to maintain culture. Some of the evidence presented in relation to the cultural impacts is listed below.
Andrew Gall, Pakana from Lutruwita, artist and jeweller claims that culture is ‘desecrated’ by producers of Inauthentic Art and Craft.610
Artist, Carol McGregor emphasises that ‘Fake art undermines our culture and heritage’ and ‘It misrepresents thousands of years of knowledge and arts practice held within Indigenous communities’.611
Margaret Boko of Tangentyere Art Centre articulates that ‘My culture is suffering’, due to Inauthentic Art and Craft.612
Ignatius Taylor of Martumili Artists states that ‘Fake art is harming my culture’.613
‘Harm’ to culture has also been raised by the Copyright Agency as a concern for community, particularly due to the ‘mishmash’ of designs onto one product, mixing cultural groups, icons and symbols inappropriately.614 Again, such combinations and use of designs disregards the
610 Andrew Gall, Exhibit 17 (Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, undated) 2. 611 Carol McGregor submission (n 573) 1. 612 Margaret Boko submission (n 450) 2. 613 Ignatius Taylor submission (n 424) 4. 614 Copyright Agency, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 56, 3 November 2017) 4. 133
cultural protocols articulated by those contributing to the 2017 Inquiry.615
As noted earlier in this thesis, the Carpets Case was significant in part because of Justice Von Doussa’s recognition of a new category of ‘cultural harm’. This particular category of cultural specificity was considered when assessing damages under the Copyright Act for infringement of artists’ works. This need for such a distinct category was also brought about due to the evidence led by the Aboriginal artists involved in that case, who spoke directly of the cultural harms caused by the infringement. The Court then recognised that such harms extended beyond the individual artist themselves, which is also reflected in the above evidence submitted to the 2017 Inquiry.
The later Birubi Penalty Case also gave particular attention to the evidence of cultural harms cause by the misrepresentations under the ACL. However, consideration of the cultural harms was only relevant to the question of general deterrence, in order to identify the risks that may ensure in the face of Inauthentic Art and Craft.616 In that case, Perry J made it clear that the cultural harm and consequences caused by Inauthentic Art and Craft under Indigenous lore and custom could not be taken into account when assessing damages against Birubi. This was because such factors are not the subject of the misrepresentations under the ACL.617
In light of the evidence provided in the 2017 Inquiry, the Carpets Case and Birubi Penalty Case demonstrate there are limited categories or areas within the law where cultural harms can be taken into account. For example, the respective breaches under the Copyright Act in the Carpets Case and ACL in the Birubi Decision are not directly concerned with the infringement of cultural rights or protocols, but rather offer a space where cultural harms caused by such infringements can be considered in limited capacities. The 2017 Inquiry evidence articulating the cultural harms of Inauthentic Art and Craft and past judicial approaches to considering cultural harms provide valuable contribution to ensuring that avenues for reform appropriately address cultural harm concerns.
615 Desart submission (n 229) 3; Darwin Aboriginal Art Fair submission (n 605) 5. 616 Birubi Penalty Case (n 8) 54. 617 Ibid. 134
5.5 Emotional, spiritual and physical impacts In addition to impacts on culture and cultural expression, many Aboriginal and Torres Strait Islander people described the emotional, spiritual and physical toll that Inauthentic Art and Craft has on individuals, families and communities. The evidence provided throughout the 2017 Inquiry demonstrates that Inauthentic Art and Craft has a negative impact not only on the health and wellbeing of artists individually, but more broadly to members of the Aboriginal and Torres Strait Islander community.
Many Aboriginal and Torres Strait Islander people also described how the existence of Inauthentic Art and Craft caused emotional feelings of pain and hurt. This evidence ties into evidence throughout this thesis that Aboriginal cultural expression is not just a physical form of art work, but is rather an expression that is tied to connections and obligations to land, family and ancestors. In that regard, when Inauthentic Art and Craft exists, it impedes upon the spiritual connections and obligations to land, family and ancestors that Aboriginal people honour and maintain through cultural expression.
From a judicial perspective, Justice Kirby in Western Australia v Ward618 reflected on the possibility of constitutional protection of the right to cultural knowledge that is based on the spirituality of Aboriginal people.619 His Honour considered that section 116 of the Constitution could be tested, which provides a prohibition on laws affecting the free exercise of any religion.620 Justice Kirby noted that section 116 of the Constitution had been analysed in relation to the Native Title Act 1993 (Cth) (Native Title Act) and its impact on Indigenous culture and spirituality, but that its full significance regarding freedom of religion has not yet been explored in the context of Aboriginal spirituality and its significance for Aboriginal civil rights.621 Consideration of section 116 in this context is recognised by Justice Kirby as requiring future thought and judicial analysis. In this regard, there is recognition that Australian laws may have greater effect in recognising and protecting expressions of spirituality made by Aboriginal people, whether through art, cultural expression or otherwise.
618 [2002] HCA 28. 619 Ibid 586. 620 Ibid. 621 Ibid. 135
Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry articulated how Inauthentic Art and Craft impacts them from an emotional, spiritual and physical perspective. Again, it is an important part of this thesis that such harms are given voice and priority in order to understand the extent of such impacts.
Abe Muriata of Girringun Aboriginal Art Centre at Cardwell stated, ‘It really hurts. It stings for me’,622 highlighting the personal impact that Inauthentic Art and Craft has on Aboriginal people.
Roanna Jacob from Mirndiyan Gununa Art Centre on Mornington Island similarly said ‘I feel hurt that my people are being exploited by people who are taking things from our culture and introducing it as their own work’,623 identifying the personal harm felt by an Aboriginal person when Aboriginal people and culture more broadly is being exploited.
Ceduna Arts in South Australia expressed, ‘It makes me feel ashamed and disgusted that Indigenous design are stolen’.624 Similar to other evidence presented to the 2017 Inquiry, it is likely that such feelings of ashamedness and disgust towards Inauthentic Art and Craft is due to the way in which it takes away from and disrespects Aboriginal culture.
Banduk Marika of Buku-Larrnggay Mulka Centre at Yirrkala informs the 2017 Inquiry that: For us, our works are not just beautiful artworks. It is a privilege to own one. You become a type of custodian and need to look after it and not abuse our laws and culture. It causes us a great deal of pain when we see our clan designs copied by people who don’t understand their importance or have permission to do so.625
In providing such evidence, Banduk Marika highlights the connection between protocols that are in place to govern the creation of clan designs and the harm inflicted when such protocols are not followed through the copying of such designs in Inauthentic Art and Craft.
622 Abe Muriata, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 112, 2 November 2017) 3. Author’s emphasis. 623 Roanna Jacob submission (n 422) 3. Author’s emphasis. 624 Arts Ceduna submission (n 108) 1. Author’s emphasis. 625 Buku-Larrngay Mulka Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 90, undated) 8 (‘Buku-Larrngay Mulka Centre submission’). Author’s emphasis. 136
Margaret Mara of Wei’num Arts, speaks specifically of the impact that Inauthentic Art and Craft has on the people of Mapoon in Queensland from a colonial perspective: Fake art is an insult. I feel it’s a big insult because Mapoon people were never – were forbidden to practice their culture and to speak their language. It’s something that’s lost and something that, through art, we are trying to build up again and to regain, and fake art takes away from that. It disempowers us, because people see the fake art. ‘Oh, this is what Indigenous culture is about’. It’s not, and we need to stop it, because we want our culture to be out there, not this fake art.626
Evidence presented to the 2017 Inquiry like Margaret Mara’s reflects how the exploitation of Aboriginal culture was used as part of the colonial conquest in Australia627 and then controlled through Inauthentic Art and Craft, which Professor Langton also suggests is part of the colony attempting to project a position of ‘innocence’ through the ongoing process of colonisation.628 Margret Mara’s evidence and that of other participants is very strong and clear that Aboriginal people reject Inauthentic Art and Craft and instead stress the importance of Aboriginal people creating their own cultural expression.
Evidence provided to the Inquiry by FORM Building a State of Creativity Inc, located in Western Australia, added to the feeling of ‘disempowerment’ felt by artists: The use or appropriation of imagery, which in the most severe cases is may be culturally sacred is often offensive, and damaging to the esteem of Indigenous Australians because this can result in feelings of helplessness around the ownership of cultures that have been stolen, faked and warped.629
Artist Gordon Hookey described how the sheer volume of Inauthentic Art and Craft available in the market has the ability to cause an ongoing negative emotional impact on Aboriginal people and a level of self-preservation or protection that has to be employed:
626 Margaret Mara, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 102, 2 November 2017) 3 (‘Margaret Mara submission’). Author’s emphasis. 627 Bowrey (n 58) 39. 628 Langton (n 53) 12. 629 FORM Building a State of Creativity Inc, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 61, 3 November 2017) 6 (‘FORM submission’). Author’s emphasis. 137
as a blackfella, as an Aboriginal person, as a native person, you've got to position these things in such a way psychologically that it doesn't affect us in a harmful or dramatic way, simply because it is so widespread…our culture, our tradition, is so exploited by non-Aboriginal peoples and by the tourist industry that, you know, if we're going to confront it this once we have to do it every time.630
Evidence presented to the Inquiry like Gordon Hookey’s reinforces the ever-present impact of dominant society or those in hierarchies of control and power determining the value, and therefore protection and recognition afforded to Aboriginal culture and cultural expression.631
When speaking about need for legislative change to address Inauthentic Art and Craft Peter Farmer states how the existence of Inauthentic Art and Craft itself acts to exclude Aboriginal people, reminiscent of colonial underpinnings, ‘I hope they change it, because there are a lot of things happening; other people are getting away with it and leaving us blackfellas on the outer’.632 Further, Laurie Nona, an artist from the Torres Strait Islands describes the struggle that Indigenous artists face in getting governing bodies to understand the importance of stopping Inauthentic Art and Craft, ‘The message to the powers that be is that we, Indigenous people of this country are really crying out for help to help us stop fake artists, fake art producers and however fake art is getting into our country’.633
The evidence of Peter Farmer and Laurie Nona particularly in relation to proposals around legislative change reflects current greater debate within the Australian community of the need for constitutional enshrinement of a Voice to Parliament,634 which is further discussed in Chapter 7 of this thesis. According to advocates, the operation of a Voice to Parliament would act to include the input of Aboriginal and Torres Strait Islander people, and arguably, not leave ‘blackfellas on the outer’ at the policy and legislative considerations.
In addition to emotional and spiritual impacts identified above, submissions also found that Inauthentic Art and Craft physically affects Aboriginal and Torres Strait Islander people. The evidence suggests that physical impacts are connected to emotional impacts, which are a
630 Gordon Hookey exhibit (n 365) 3. Author’s emphasis. 631 Arewa Paper (n 320) 25. 632 Peter Farmer exhibit (n 453) 2. Author’s emphasis. 633 Laurie Nona submission (n 599) 2. Author’s emphasis. 634 Referendum Council, ‘Discussion Paper’ (online, 26 October 2016)
consequence of Aboriginal cultural expression being not just a physical form of art work, but rather an expression that is tied to connections and obligations to land, family and ancestors. It follows that when Inauthentic Art and Craft exists, it impacts upon those that Aboriginal people honour and maintain through cultural expression.
The physical impacts are a result of the emotional and spiritual connection that Aboriginal and Torres Strait Islander people express in relation to their culture. Aboriginal and Torres Strait Islander people discuss the physical impacts of Inauthentic Art and Craft. As an example, Bereline Loogatha from Mirndiyan Gununa Art Centre on Mornington Island informs the 2017 Inquiry, ‘I’m here to voice my feelings about how we are tired, as an Indigenous people, of watching our art being duplicated by other fake products flooding the market’.635 Similarly, Joann Russo from Girringun Aboriginal Art Centre at Cardwell expresses, ‘It is sickening to walk into a place and see fake art just inundating every outlet possible – in airports and major retail outlets’. 636
When speaking of the physical impacts of Inauthentic Art and Craft, Dennis Stokes recalled a situation where ceremonial objects were publicly available for sale and the physical harm that such display caused: There was a particular item. We won't mention what it was, but it's very traditional. It's used in men's ceremonies. Women aren't allowed to look at it or even touch it. So, when people are walking into a store and they see those items, it can be quite harmful, and it affects them in quite a way. I mean, I've literally seen somebody become very sick because she saw something, and she said, 'I can't look at that,' and was physically ill.637
The evidence highlights that physical impacts are connected to emotional impacts, which manifest due to the nexus of relational philosophy between Aboriginal cultural expression, land and spirituality.638 The physical impacts on one’s own physical body also gives an indication of the extent and depth of connectedness that exists between Aboriginal and Torres Strait Islander people and their cultural expression.
635 Bereline Loogatha submission (n 443) 3. Author’s emphasis. 636 Joann Russo, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 101, 1 November 2017) 7 (‘Joann Russo submission’). Author’s emphasis. 637 Dennis Stokes exhibit (n 609) 3. Author’s emphasis. 638 Anderson (n 130) 140. 139
Evidence to the 2017 Inquiry shows that the existence of Inauthentic Art and Craft has negative emotional, physical and spiritual impacts on Aboriginal and Torres Strait Islander people. It is clear from the evidence that cultural expression is not simply ‘art’, but is rather ‘culture’ and ‘a way of life’.639 This demonstrates that Inauthentic Art and Craft is not only limited to external or surface impacts, like an artist’s ability to earn an income from their cultural expressions, but extends to impacts at a deeper internal level, affecting one’s inner self, sense of identity and spirituality, which ultimately manifest in physical impacts, like sickness and illness.640 Such impacts are a result of Inauthentic Art and Craft interfering with and disregarding the obligations that Aboriginal people have to express and ensure culture is maintained for future generations.
Other responses to Inauthentic Art and Craft Evidence to the 2017 Inquiry also provided some explanation as to why Inauthentic Art and Craft and the broader issue of exploitation may exist from the view of the Western art world. Such views give further background to understand why Inauthentic Art and Craft may be perceived as acceptable from particular standpoints. In this regard, O’Halloran gives some insight into the justification used by cultural appropriators to exploit cultural expression:
The Western view of art, very broadly, construed, sees much of the human creative agency invested in appropriation acts as able to be dissected and commodified. This Western view sees little harm being done because the appropriated things are seen as being detachable and reused without damage to the work they were appropriated from.641
The categorising of Indigenous cultural expression and knowledge into the wider heritage of humankind to be dissected and commodified delegates the Aboriginal cultural expression to Western concepts of heritage.642 Similar to the views of Professor Arewa outlined in Chapter 2 of this thesis, Western concepts of heritage are based on the construction of hierarchies and classifications on the culture of Aboriginal people, rendering them subordinate to Western knowledges and systems. Smallacombe asserts that the idea of Indigenous cultures being
639 Dennis Stokes exhibit (n 609) 3. 640 Ibid. 641 Paul O’Halloran submission (n 496) 5. 642 Sonia Smallacombe, ‘On Display for its Aesthetic Beauty: How Western Institutions Fabricate Knowledge About Aboriginal Cultural Heritage’ in Duncan Ivison and Paul Patton (eds), Political Theory and The Rights of Indigenous Peoples (Cambridge University Press, 2nd ed, 2000) 155, 155. 140
viewed as a way to ‘add to Western knowledge’ provides a clue as to why there is an interest for Aboriginal cultural expression to be seen as freely available and open for appropriation.643
The Western views of cultural expression is in stark contrast to the views of Aboriginal and Torres Strait Islander artists when explaining the harm to culture and protocol, as identified throughout the 2017 Inquiry. The evidence of Aboriginal and Torres Strait Islander people overwhelmingly indicates that the exploitation of cultural expression through Inauthentic Art and Craft has a destructive impact on Aboriginal and Torres Strait Islander culture and the ability to transmit such culture. This is due to Inauthentic Art and Craft disregarding Aboriginal culture by interfering with and infringing upon cultural obligations to owed to land, family and ancestors, which is exercised through the cultural expression.
5.6 Conclusion This Chapter has identified the cultural harms of Inauthentic Art and Craft as articulated by Aboriginal and Torres Strait Islander people who participated in the 2017 Inquiry. This was carried out in order to bring awareness to the existence of such impacts and ensure they are not left out of the formulation of proposed reforms to address Inauthentic Art and Craft. This Chapter has highlighted that the impact of Inauthentic Art and Craft on Aboriginal and Torres Strait Islander people and culture is grounded in the Australian states’ colonial relationship with Aboriginal people. Positioning Inauthentic Art and Craft in this way gives greater insight into why Inauthentic Art and Craft exists and how it uniquely impacts Aboriginal and Torres Strait Islander people. Throughout this Chapter, Aboriginal and Torres Strait Islander people articulate a very real awareness of the way in which Inauthentic Art and Craft and its impacts form part of the ongoing colonisation of Aboriginal people and cultural expression.
Priority has been given to of voices of Aboriginal and Torres Strait Islander people who articulate a range of negative impacts of Inauthentic Art and Craft, particularly from cultural perspective which is tied to emotional, spiritual and physical impacts. The evidence discussed in this Chapter reveals the nexus between cultural expression and a person’s responsibility to country and family which is honoured and maintained through cultural expression. It follows that Inauthentic Art and Craft disrespects and disrupts the ability for Aboriginal and Torres Strait Islander people to maintain cultural expression for past and future generations. Given the
643 Smallacombe (n 642) 155. 141
way in which Aboriginal and Torres Strait Islander people are connected to their cultural expression, the existence of Inauthentic Art and Craft has a range of harmful impacts that impinge upon cultural obligations, in addition to emotional, spiritual and physical impacts caused to Aboriginal and Torres Strait Islander people. The evidence indicates that such impacts are connected to one another and do not exist in isolation.
The purpose of identifying the impacts of Inauthentic Art and Craft in this Chapter is to give prominence to the impacts identified by Aboriginal and Torres Strait Islander who participated in the 2017 Inquiry. The further purpose is to highlight to policy and law makers of the unique ways in which Aboriginal people and culture are impacted by Inauthentic Art and Craft. The risk of not being aware of the cultural impacts is that they are unlikely to be incorporated into the proposed solutions to address Inauthentic Art and Craft. The challenge for policy and law makers is to design solutions which are not shackled by colonial ideologies of control and power over Aboriginal culture and cultural expression. I argue that proposed solutions to address Inauthentic Art and Craft should take into account the identified impacts in this Chapter. The benefit of doing so is to measure whether the proposed models for reform actually acknowledge or address the cultural impacts of Inauthentic Art and Craft. Proposed solutions to address Inauthentic Art and Craft are discussed in Chapters 6 and 7 of this thesis.
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Chapter 6
2017 Inquiry Recommendations and Proposals to Address Inauthentic Art and Craft
6.1 Introduction In this Chapter 6, I analyse the recommendations proposed by the 2017 Inquiry in light of the evidence provided by Aboriginal and Torres Strait Islander people to the Inquiry. The purpose of analysing the 2017 Inquiry recommendations is to consider whether the proposed solutions actually address the impacts of Inauthentic Art and Craft identified by Aboriginal and Torres Strait Islander people in Chapter 5. That is, has the 2017 Inquiry considered and incorporated the evidence of Aboriginal and Torres Strait Islander people into the proposed solutions to address Inauthentic Art and Craft? I find that the recommendations provided by the 2017 Inquiry Committee to government do not fulsomely reflect the views or concerns of Aboriginal and Torres Strait Islander people to stop Inauthentic Art and Craft from existing in Australia.644 I argue that if the 2017 Inquiry and government are genuine about addressing Inauthentic Art and Craft in a way that benefits Aboriginal and Torres Strait Islander people, then the extent of their evidence cannot be ignored. Anything less of purposeful inclusion of Aboriginal and Torres Strait Islander evidence into the solutions is an indication of not hearing such voices – when such voices have been repeated, articulate and clear. There is no ambiguity in the evidence submitted by Aboriginal and Torres Strait Islander people to the Inquiry when asked
644 Vicki Williams, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 16, 15 October 2017) 1 (‘Vicki Williams submission’); Regina Lankin, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 28, 14 September 2017) 1 (‘Regina Lankin submission’); Beth Inkamala submission (n 579) 2; Ada Beasley submission (n 442) 2; Patricia Robinson, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 36, 12 September 2017) 2 (‘Patricia Robinson submission’); Nici Cumpston, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 53, 2 November 2017) 1 (‘Nici Cumpston submission’); Delvene Cockatoo-Collins submission (n 569) 1; Stephanie Parkin submission (n 575) 1; Roanna Jacob submission (n 422) 3; Margaret Mara submission (n 626) 3; Bereline Loogatha submission (n 443) 3; Frank Young, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 113, undated) 4 (‘Frank Young submission’); Betty Muffler submission (n 579) 2; Margaret Kemarre Ross, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 123, 9 September 2017) 2 (‘Margaret Kemarre Ross submission’). 143
about solutions to address Inauthentic Art and Craft. The answer is straightforward: Inauthentic Art and Craft has no place in Australia and it needs to stop being made and sold.645
In addition to the eight recommendations including in the 2017 Inquiry Report, the following amendments to the ACL are also analysed in this Chapter: • a private members bill introduced by Bob Katter MP titled Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 (Katter Bill); and • the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019 (Cth) introduced by Senator Sarah Hanson-Young from the Greens party (Hanson-Young Bill).
Similarly, the purpose of analysing the two separate proposed bills is to assess whether the concerns of Aboriginal and Torres Strait Islander people identified in the 2017 Inquiry to stop Inauthentic Art and Craft have been reflected in the proposed amendments. While there are some differences between the Katter Bill and Hanson-Young Bill, they are based on similar models by introducing an offence to supply a product that is or contains an Indigenous cultural expression, unless that product is actually made by an Aboriginal or Torres Strait Islander person or made under a licence agreement. Generally, the bills are focused on the conduct of those breaching the ACL rather than the direct protection and recognition of rights of Aboriginal and Torres Strait Islander people to maintain their cultural expression, which is arguably better suited to sui generis legislation. By analysing the 2017 Inquiry Report recommendations and Katter Bill and Hanson- Young Bill, the 2017 Inquiry Committee’s approach to the evidence of Aboriginal and Torres Strait Islander people in the 2017 Inquiry will be revealed.
Previous Chapters of this thesis which identified the colonial underpinnings of Inauthentic Art and Craft reveal the limited capacity to which law reform is able to comprehensively address the issue. Adding to this, Aboriginal and Torres Strait Islander people participating in the 2017 Inquiry have already expressed apprehension as to the outcome of the Inquiry, and in particular, whether any meaningful action from the government will occur. An example of this apprehension being validated is the intent of the 2017 Inquiry’s recommendations to ‘chart a path forward’ and ‘start an earnest conversation’ among policymakers. The intention expressed
645 Ibid. 144
by the 2017 Inquiry Committee to start a conversation about Inauthentic Art and Craft does not align with the expectations of Aboriginal and Torres Strait Islander people who participated in the 2017 Inquiry process. The evidence of Aboriginal and Torres Strait Islander people demonstrates they do not want more of a ‘talk fest’.646 The evidence of Maureen Newton makes that point clearly: No more talk fest all the answers have been given over many years. It’s time to act and act decisively. I have seen 70 years of my life in a community that has ridden on the backs (reputation) of Aboriginal and Torres Strait Islanders to benefit financially without ensuring that they are well compensated for their hard labour and cultural artistic work’.647
Similarly, Stephen Hogarth stresses to the 2017 Inquiry, ‘No more stuffing around on this issue some sort of legislation for Copy Rights [sic] needs to be put in place to protect the rights of Australian Indigenous artists, it’s well over due’.648
As outlined in Chapter 1 of this thesis, colonial underpinnings of Inauthentic Art and Craft are likely to permeate throughout the proposed solutions. From an Aboriginal standpoint, this carries a very real risk that proposed solutions and amendments to law will not adequately address Inauthentic Art and Craft, as it is a result of the colonial relationship that government imposes on Indigenous people. If government cannot see, hear or act on the evidence provided by Aboriginal and Torres Strait Islander people due to its own colonial role in the perpetuation of Inauthentic Art and Craft, then it is anticipated that the proposed solutions will be of little benefit to Aboriginal people, cultural expression and not go to the heart of stopping Inauthentic Art and Craft. Models for reform that attempt to overcome such challenges are referred to in Chapter 7 of this thesis.
Despite Aboriginal and Torres Strait Islander people not using the word ‘authentic’ to describe their work and that being advised to the Inquiry,649 the 2017 Inquiry Committee Chair identified two key issues that contributed to Inauthentic Art and Craft.650 Both key issues were based on the concept of authenticity, including that there was no accepted industry standard for
646 Maureen Newton, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 44, 31 October 2017) 2 (‘Maureen Newton submission’). 647 Maureen Newton submission (n 646) 2. 648 Hogarth submission (n 107) 2. 649 Indigenous Art Code submission (n 336) 1. 650 Inquiry Report (n 330) xii. 145 authenticity (which leads to confusing and misleading labelling of products) and that there was no education about authenticity throughout the supply chain from the manufacturer to the point of sale.651 The imposition of a perceived key issue of authenticity rather than the repeated evidence of Aboriginal people clearly stating that Inauthentic Art and Craft is theft of culture is arguably another example of not hearing or understanding the issues from an Aboriginal perspective.
The submission by the Arnhem Northern and Kimberley Artists Aboriginal Corporation asserts that the responsibility to solve the problem of Inauthentic Art and Craft should be placed on those perpetrating this injustice and not on genuine Aboriginal artists.652 This advice appears to have been rejected as the 2017 Inquiry. This is due to the 2017 Inquiry focussing on the need to define, categorise and establish standards and education around authenticity. Arguably, this puts the onus on Aboriginal and Torres Strait Islander artists to fix the problem through definition and consumers to educate themselves, rather than taking action against manufacturers and retailers who are profiting off the theft of Aboriginal culture through Inauthentic Art and Craft. The 2017 Inquiry Report gives the impression that it is concerned about defining authenticity and related issues rather than taking action against the producers of Inauthentic Art and Craft.
6.2 2017 Inquiry Report The 2017 Inquiry Committee released its recommendations to government in a report released in December 2018. In the Foreword to the 2017 Inquiry Report, Ann Sudmalis as the Committee Chair summarised a range of evidence heard throughout the 2017 Inquiry. In asserting that Inauthentic Art and Craft has, among other things, negative impacts on Australia’s image abroad, Ann Sudmalis identified four fundamental items arising from the 2017 Inquiry: 1. First Nations art, craft and cultural expressions belong to First Nations peoples. Non- Indigenous artists and artisans should not appropriate or copy this expression in any way, even with good intentions. 2. Whilst producing and selling imitation First Nations art and craft is not unlawful, it has a negative impact on the integrity of the ancient cultural heritage of First Nations peoples.
651 Inquiry Report (n 330) xii. 652 ANKAA submission (n 337) 11. 146
3. Any inauthentic piece of Indigenous art, craft or artefact such as a boomerang or didjeridu not made by a First Nations artist is by its very nature and existence purporting to be culturally authentic when it is not. 4. First Nations cultures are an intrinsic part of Australian culture and allowing it to be compromised damages the identity of our nation as a whole.653
Item 3 above refers to the tension with the ACL and the visual representations of Inauthentic Art and Craft, which due to the style of artwork and content of paintings and artefacts, gives the impression that the product is made by an Aboriginal person.
Submissions to the 2017 Inquiry identify that Aboriginal and Torres Strait Islander cultural expression belongs to or is associated with Aboriginal and Torres Strait Islander people. The use of such cultural expression by non-Indigenous people and businesses creates an impression of a connection with Indigenous people that does not exist. To comply with current consumer laws, written labels such as ‘Made in Indonesia’ or ‘Made in China’ are attached to Inauthentic Art and Craft. Such labels act to disprove the initial visual impression that it is made by or connected with an Aboriginal person. While the 2017 Inquiry Report did not identify it as a recommendation, many submissions to the 2017 Inquiry proposed an amendment to the ACL to ensure that Aboriginal and Torres Strait Islander people are involved in the process of creating products contained cultural expression. In that regard, the Chair of the 2017 Inquiry Committee made the comment that ‘This unacceptable misappropriation of First Nations cultures cannot be allowed to continue unchecked. These imitation products exist solely to make money’.654
Arguably, such a strong statement by the Chair of the 2017 Inquiry Committee gives the impression that strong recommendations in the 2017 Inquiry Report are to follow. The 2017 Inquiry Committee drafted eight recommendations to the government with the aim of severely curtailing the prevalence of imitation Indigenous art and create economic opportunities for artists and communities.655
653 Inquiry Report (n 330) xii. 654 Ibid xiii. 655 Ibid. 147
6.3 Recommendations in the 2017 Inquiry Report The 2017 Inquiry Committee identified three drivers of Inauthentic Art and Craft. These included the interest that tourists and consumers have in Aboriginal and Torres Strait Islander culture and souvenirs, that Inauthentic Art and Craft can be traded legally and is profitable to those selling it and consumers are unaware of what is authentic and what is not.656 In taking the three drivers into account, the 2017 Inquiry Committee provided eight recommendations to government.657 The 2017 Inquiry Committee stated that goal of the recommendations is to ensure that Aboriginal and Torres Strait Islander people ‘are able to exercise proper and rightful control over the production of cultural expressions in the future and benefit economically from it’.658
The 2017 Inquiry Report described a range of broad areas that influenced the formulation of the specific recommendation, including but not limited to establishing an accepted definition of authenticity of artworks, continued funding and infrastructure for art centres, consumer education, providing clear information to visitors about authenticity and introduction of standalone legislation to protect cultural expression.659 Each of the recommendations identified in the 2017 Inquiry Report are set out below.
Recommendation 1: the Productivity Commission conducts an inquiry in the value of the Indigenous art and craft market660 Previous Productivity Commission activity in the area of intellectual property was conducted in 2016, which investigated Australia’s intellectual property system and whether it provided an appropriate balance between access to ideas and products, innovation and production of creative works. According to IP Australia, many of the recommendations arising from the
656 Ibid 67. 657 Ibid. 658 Ibid. 659 Ibid 68. 660 ‘The committee recommends as a matter of urgency that the Productivity Commission conducts a comprehensive inquiry into the value and structure of the current market for First Nations arts and crafts. This inquiry should incorporate the following elements: a detailed structural breakdown of the different parts of this market and the operators within it; the total value of the fine art market stratified by the different avenues through which this art is produced, procured and sold; the total value of the souvenir and craft market stratified by the different avenues through which these products are produced, procured and sold; the market value of inauthentic souvenirs and art sold in Australia; the revenues generated by art centres; the barriers facing art centres and First Nations artist who wish to sell fine art or souvenir style items in mainstream markets; a summary reflecting both the number and value of imported imitation low end Indigenous products and a like summary for products made and/or licensed in Australia’, Inquiry Report (n 330) x. 148
2016 inquiry required legislative action.661 This is promising in terms of legislative reforming arising from the process, however, the length of time to implement such reform is unlikely to be swift.
In his evidence to the 2017 Inquiry, Professor Jon Altman identified the lack of industry data as problem and queried how the 2017 Inquiry could refer to the ‘growing’ presence of inauthentic product, without current data on the prevalence of Inauthentic Art and Craft.662 Further, in Professor Jon Altman’s public hearing appearance, the 2017 Inquiry Committee Chair referred to the role of the Productivity Commission in being able to establish a benchmark in understanding where economic investment is being directed in the industry and what the return is to communities. Such concerns raised by Professor Altman are reflected in the 2017 Inquiry’s urgent recommendation for further research and data gathering to be carried out by the Productivity Commission. This position is contrasted with longstanding calls to prioritise standalone legislation to address Inauthentic Art and Craft and provide comprehensive recognition of ICIP rights.
While recognising the need for further research some evidence to the 2017 Inquiry suggested that the Productivity Commission’s inquiry should not stop other actions from occurring, like amendments to the ACL to prohibit Inauthentic Art and Craft.663 In a joint response to the 2017 Inquiry, the Indigenous Art Code, Copyright Agency and Arts Law Centre of Australia (Joint Response) noted that given the nature of the industry, including the number of artists who are not associated with an art centre, it makes it difficult to collect data on revenues and profits.664 In the organisations’ experience it was noted that suppliers and artists are generally reluctant to provide any financial information about their supply arrangements.665 In that context, the view was that any proposed Productivity Commission would only be effective if it was able to compel the production of information and documents from art market participants.666 It was
661 IP Australia, Implementation of the Government Response to the Productivity Commission’s 2016 Report into Australia’s Intellectual Property (IP) Arrangements (Web page, 25 July 2019)
The recommendation to conduct urgent and comprehensive research on the market demonstrates the 2017 Inquiry Committee is viewing Inauthentic Art and Craft through an economic lens, which may ultimately influence the government in its selection and implementation of certain recommendations over others. The push to conduct research on the economics of the art market does not align with the urgency expressed by Aboriginal and Torres Strait Islander artists to prohibit Inauthentic Art and Craft and recognise ICIP rights. This is an example of two different and opposing viewpoint of addressing Inauthentic Art and Craft.
Recommendation 2: assess funding for the Indigenous Art Code Ltd and evaluation of industry practices668
Recommendation 2 reflects the evidence contained in various submissions to the 2017 Inquiry calling for additional funding and support for the Indigenous Art Code, to meet its objectives and support artists and art dealers in establishing fair and transparent arrangements.669 Discussions around the introduction of a mandatory code existing in the Indigenous visual arts industry are not new. In 2007, the Senate Standing Committee on Environment, Communications, Information Technology and the Arts’ report titled ‘Indigenous Art – Securing the Future: Australia’ Indigenous visual arts and craft sector’ (Securing the Future Report) established the foundations for the Indigenous Art Code as a device for self-regulation in the Indigenous visual arts sector.670
667 Ibid. 668 ‘The committee recommends as a matter of urgency that the Australian Government consults with the Indigenous Art Code and the First Nations art sector on what resourcing is required for the Indigenous Art Code Ltd to fulfil its considerable potential, and provides this funding as a means of protecting both our unique Indigenous cultures and protecting the future and value of this market for Australian and International visitor purchasing. The committee further recommends that a detailed evaluation of industry practices take place no later than two years after the provision of this funding. A mandatory code should be introduced if that review reveals few improvements in industry behaviour and little reduction in the prevalence of imitation First Nations art and craft’, Inquiry Report (n 330) xx. 669 Regional Arts Australia submission (n 465); National Association for the Visual Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 55, 25 undated) 7. 670 Indigenous Art Code submission (n 336) 2. 150
Given the complex nature of the industry there was recognition that not all industry participants would be willing to develop a common view about regulating professional behaviour.671 In that regard, recommendation 21 of the Securing the Future Report recommended that the industry be given the opportunity to self-regulate and if problems persisted, consideration should be given to the implementation of a prescribed code of conduct under the then TPA.
In the following years of 2012 and 2013, the Indigenous Art Code recommended that government prescribe an industry code under the CCA as initially raised in the 2007 Securing the Future Report, in order to establish minimum standards in the industry.672 While the Indigenous Art Code recognised it had been successful in mediating disputes between artists and dealers and promoting public awareness about relevant issues, its voluntary nature was not effective in addressing misconduct that occurs in the sector.673 Again, given the voluntary nature of the Indigenous Art Code it was observed that some art dealers either fail to meet the Indigenous Art Code membership requirements or are not interested in becoming a signatory to the Indigenous Art Code.674
Currently, the main objective of the Indigenous Art Code is to maintain standards for dealings between art dealers and artists. The scope of the Indigenous Art Code falls short of prohibiting the creation and supply of Inauthentic Art and Craft on the basis there is no relationship between an art dealer and Aboriginal artist in the creation of Inauthentic Art and Craft. The Joint Response also identifies that a mandatory code would be better suited to address the conduct of unscrupulous art dealers who exploit artists in the fine art market.675 If the intent is to make the existing Indigenous Art Code a prescribed mandatory industry code, the Indigenous Art Code would need to be modified to capture the relevant conduct involved in the creation of Inauthentic Art and Craft.
In recent developments, in a Guardian article on 27 January 2020, the Minister for Indigenous Affairs, Ken Wyatt advised that consideration was being given to the introduction of a
671 Ibid. 672 Ibid. 673 Ibid. 674 Ibid. 675 Response to Inquiry Report (n 663) 7. 151 mandatory code given that the Indigenous Art Code ‘was not working’.676 A prescribed mandatory code is introduced through a myriad of processes and parties,677 and it was submitted to the 2017 Inquiry that a new mandatory code may not be any more efficient than seeking to amend the ACL to prohibit Inauthentic Art and Craft. Evidence also highlighted that a breach of a mandatory code attracts civil penalties, compared to breaches of the ACL which attract both civil and criminal. In addition, the maximum penalty of $63,000 for breach of a mandatory code is significantly lower than a maximum penalty of the ACL which is the same as a contravention of section 29 of $1.1 million. Arguably, higher penalties with a broader scope under the ACL are likely to deter those who are engaging in the creation and sale of Inauthentic Art and Craft.
Recommendation 3: establish a Business Sector Strategy aimed at art centres to access the mainstream souvenir market678
Submissions from a variety of sectors identified a significant need for further capacity building and support for independent artists, art centres and Aboriginal businesses in order to enter and maintain a space in the souvenir and art market.679 Recommendation 3 reflects the need for capacity building specifically in relation to art centres. If implemented, there is a potential limitation for independent artists who are working outside the art centre model and other
676 Allam (n 476). 677 For example, the need for a prescribed mandatory code is brought to the attention of the Minister with policy responsibility over the area of activity. The Minister undertakes a preliminary assessment to determine whether there is sufficient grounds for prescribing a code. Key stakeholders are informed and consulted and a regulation impact statement is development. The regulations are then put to Parliament for approval, see, Arts Law Centre of Australia and Indigenous Art Code Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 149, 11 May 2018) 7 (‘Arts Law and Indigenous Art Code submission’). 678 ‘The committee recommends that the Australian Government establishes and funds a separate arm of the Indigenous Business Sector Strategy that is specifically aimed at art centres. This arm should incorporate the following aspects: business advisory hub that will advise art centres on how to access mainstream souvenir markets; seed funding for art centres to build capacity, including staff training, to enter mainstream souvenir markets, including mentoring and monitoring strategies and solutions to the lack of infrastructure, particularly housing, that prevents many art centres from hiring and retaining art centre managers’, Inquiry Report (n 330) xx. 679 Cairns Indigenous Art Fair, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 117, undated) 2 (‘Cairns Indigenous Art Fair submission’); Ian Goss, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 162, undated) 11 (‘Ian Goss submission’); Ninti One, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 1, undated) 4; Altman submission (n 343); Terri Janke and Company submission (n 570) 2. 152
Aboriginal and Torres Strait Islander businesses who are seeking capacity building opportunities.
Ideally the opportunity for capacity building would be available for all Aboriginal and Torres Strait Islander artists, whether independent or attached to an art centre or business. Further, the success of such art centres is likely to be impeded if Inauthentic Art and Craft is still able to legally exist in the market. Arguably, it is counter intuitive for artists and art centres to be assisted with capacity building opportunities if only to compete against producers of Inauthentic Art and Craft. If Inauthentic Art and Craft is prohibited by law, it is anticipated that this recommendation would have greater positive impact to support artists and art centres in the souvenir industry. While additional funding is likely to be very much needed for art centres in building capacity of artists to participate in the souvenir market, this recommendation will not provide the same level of access to business and development opportunities for independent artists and further will not stop Inauthentic Art and Craft from being made and sold in Australia.
Recommendation 4: develop an Information Standard in consultation with artists, communities and the Indigenous Art Code680 Information Standards regulate the type and amount of information provided to consumers about goods and services. The Federal Minister responsible for administering the ACL has the power to make new Information Standards. Existing information standards include free range egg labelling, tobacco labelling and ingredient labelling for cosmetics and toiletries.681 In a public hearing in Canberra in September 2018, a number of agencies gave evidence to the 2017 Inquiry, including the Department of Communications and the Arts, IP Australia, the Treasury, the Department of Prime Minister and Cabinet and the ACCC.
At that public hearing, the Treasury introduced the concept of an Information Standard to the 2017 Inquiry Committee as a model to address misleading and deceptive conduct and combat Inauthentic art and Craft. It was explained to the 2017 Inquiry Committee that various models existed in the ACL that were available ‘to address misleading and deceptive conduct around
680 ‘The committee recommends that the Australian Government develops an Information Standard for authentic First Nations art in full consultation with First Nations artists and communities and the Indigenous Art Code’, Inquiry Report (n 330) xx. 681 NSW Government, Information Standards (Web page, undated)
As with allegations of misleading and deceptive conduct identified in the Birubi Decision, it is likely that extensive evidence is needed for the ACCC to enforce the Information Standard and maintain consumer confidence in the market. Further, the function of an Information Standard does not stop Inauthentic Art and Craft from existing, as it provides consumers with a way to differentiate between authentic products and Inauthentic Art and Craft. Another limitation is that there is no guarantee that the ACCC has the capacity to investigate all breaches of the Information Standard. The use of an Information Standard also places the onus of those wanting to obtain the benefit of it, like artists and art centres, to ensure certain criteria is in place to arguably promote something as authentic or in accordance with a particular standard.
Apart from the evidence presented by Treasury in the public hearing in September 2018, no other submissions publicly provided to the 2017 Inquiry recommended an Information Standard as an option to address Inauthentic Art and Craft. It is unclear the basis upon which the Information Standard was suggested as a recommendation, particularly where there was such limited support for it throughout the 2017 Inquiry process.
Recommendation 5: develop a guide for all arriving passengers into Australia685
682 Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 13 September 2018, 1 (Mr McKissack, Treasury) (‘Mr McKissack public hearing’). 683 The Australian Competition and Consumer Commission, ACCC releases guidance on free range egg standard (Web page, 6 February 2018)
The suggestion to have information about Aboriginal and Torres Strait Islander art and craft specifically directed at tourists was widely supported by those participating in the 2017 Inquiry.686 The 2017 Inquiry Committee clearly reflected that suggestion in recommendation 5. Providing information to tourists about Aboriginal and Torres Strait Islander art and craft products is useful step to raise awareness of the types of products available and questions for a tourist to ask a retailer if they unsure about a purchase. However, the detail and volume of information that a tourist is likely to absorb from an inflight information guide is likely to be limited. If the aim of the 2017 Inquiry Committee is to eliminate Inauthentic Art and Craft from the market, then leaving the decision to select authentic products or Inauthentic Art and Craft in the hands of a tourist, or continued use of vague labels on souvenirs, is not effective in achieving that aim.
In that case, recommendation 5 needs to be part of a broader scheme of solutions, like the ACL amendment, that when together will have greater impact at stopping Inauthentic Art and Craft. Alternatively, if the aim of the 2017 Inquiry Committee is to allow Inauthentic Art and Craft to proliferate and simply give tourists the option of selecting authentic products or Inauthentic Art and Craft, then recommendation 5 achieves that result. It should be noted however, that such a result is not consistent with the views of Aboriginal and Torres Strait Islander people who want Inauthentic Art and Craft to be eliminated from the existing in the market.
Recommendation 6: develop a Certification Trade Mark Scheme for Indigenous art and craft products687
The evidence submitted to the 2017 Inquiry was mixed when considering the effectiveness of a certification trade mark to combat Inauthentic Art and Craft. For example, Terri Janke and
686 Sandra Faber, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 25, 30 October 2017) 2; Arts Front and Feral Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 161, 29 July 2018) 2 (‘Arts Front and Feral Arts Submission’); Julie Purcell submission (n 531) 2; Myvanwy Moar submission (n 334) 2; Dr Damien Jacobsen, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 109, 2 November 2017) 7; Artitja Fine Art, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 70, 3 November 2017) 1; FORM submission (n 629) 8; Indigenous Art Code submission (n 336) 10; Umi Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 18, 16 October 2017) 2. 687 ‘The committee recommends that IP Australia develops a Certification Trade Mark Scheme for authentic First Nations art and craft in full consultation with all relevant stakeholders’, Inquiry Report (n 330) xxi. 155
Company Pty Ltd suggested that the National Indigenous Cultural Authority could take on the role of administering a certification trade mark licensing scheme, IP Australia stated that certification trade marks could be useful in the souvenir market (taking into account lessons learnt from previous labelling schemes) and the Joint Response identified limitations with the certification trade mark scheme.688 Chapter 4 of this thesis identifies a range of issues associated with the failed Label of Authenticity certification trade mark, many of which the same limitations are identified with respect to recommendation 6.
A certification trade mark acts to identify goods or services that possess a particular standard or characteristic, which usually include quality, content, manufacturing method and geographic origin. A certification trade mark is then used by authorised users who guarantee that the product possesses a particular standard. That standard is established through the certification trade mark rules that cover the standards a product must meet, a method for determining whether a standard has been met, requirements an owner of the trade mark must meet and a procedure for resolving disputes about whether a good meets the certification trade mark standards.689 An example of a certification trade mark is the Australian Made, Australian Grown certification trade mark which is used by more than 1,700 companies on over 1,000 products sold globally.690
Similar to the Information Standard, while the certification trade mark has it benefits in being able to provide consumers with an assurance that a product has met certain standards and assists with the purchase process, it is likely to negatively impact on those who are not able to participate in the certification trade mark scheme. For example, if there are artists or art centres who are unable to meet the administrative process through IP Australia or the established standard, they cannot use the certification trade mark for their Aboriginal art and craft products, which places them at a disadvantage compared to those who can engage with the system. Further, while a successfully implemented certification trade mark is likely to impact on a consumer’s ability to make a distinction between Inauthentic Art and Craft and works made by Aboriginal and Torres Strait Islander people, it may carry the unintended consequence of disadvantaging artists who are unable to engage with the certification trade mark system. The
688 Arts Law and Indigenous Art Code submission (n 677) 9. 689 IP Australia, ‘Certification Trade Mark’ (Web page, 20 June 2018)
successes and challenges experienced by international jurisdictions such as Canada in relation to its Igloo Tag Trade Mark and New Zealand’s ‘toi iho’ trade mark could also offer further insight into the implementation and operation of a scheme domestically. Both trade mark schemes are briefly referred to in Chapter 4 of this thesis. One particular observation from the experience in Canada and New Zealand is the length of time taken to develop, implement and manage the respective schemes.
The evidence of Myvanwy Moar presented to the 2017 Inquiry suggests that a trade mark or label is not required because the appearance of such products themselves implies that they are the work of Aboriginal and Torres Strait Islander artists.691 This position is reflected in the 2017 Inquiry Report where Inauthentic Art and Craft, is by its very nature visually purporting to be culturally authentic when it is not. In this regard, the representation as to authenticity or standard of creation conveyed by a certification trade mark has already been made by the visual representations of styles and artwork that gives the impression that it is made by an Aboriginal person. For the reasons set out above, it is likely that a certification trade mark would have limited impact in stopping Inauthentic Art and Craft from existing in the souvenir market and its introduction does not widely reflect the evidence of Aboriginal and Torres Strait Islander people to prohibit Inauthentic Art and Craft.
Recommendation 7: provide support to artists affected by carpet bagging692 While the issue of carpet bagging was not formally included in the 2017 Inquiry Terms of Reference, the issue was raised throughout a number of submissions.693 For clarity, the term ‘carpetbagger’ is generally applied to particular individuals, gallery owners, or private agents who are usually not Aboriginal or Torres Strait Islander and who obtain artworks from artists
691 Myvanwy Moar submission (n 334) 2. 692 ‘The committee recommends that additional funding be provided through the Indigenous Visual Arts Industry Support program to: enable First Nations organisations such as art centres to advise and support artists who have been affected by carpet bagging and work with advisors from the Departments of Social Services, Employment and Prime Minister and Cabinet to plan a detailed program of interactive, financially viable assistance for First Nations artists or individuals who have been abused in this way, including a model to estimate any budgetary implications’, Inquiry Report (n 330) xxi. 693 Darwin Aboriginal Art Fair submission (n 605) 5; Ku Arts Ananguku Arts & Culture Aboriginal Corporation, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 86, 1 November 2017) 2 (‘Ku Arts submission’). 157 at prices well below what that person knows or ought to know is a reasonable market price.694 The intent of the carpetbagger is to sell the artwork at a substantial profit.695 This process often involves taking advantage of the artist's age, poverty, medical condition, weak economic bargaining position or other disadvantage.696
The existence of carpet bagging alongside Inauthentic Art and Craft reflects the power imbalances imposed by the colonial relationship as discussed throughout this thesis confirms the argument that colonialism has not ended.697 Despite the arguments put forward throughout the 2017 Inquiry around the need to delineate between the fine art market and souvenir market, the conduct of carpet baggers and exploitation of Aboriginal and Torres Strait Islander artists transcend such market boundaries and reflect Australia’s continuing colonial relationship with Aboriginal people.
While this recommendation is intended to address carpet bagging from an economic standpoint through additional funding to provide services, it arguably does not address carpet bagging as a product of continued colonial control. Unless and until the core of that colonial relationship, is addressed, understood and dismantled such conduct is likely to continue, regardless of the amount of funding allocated to stop the conduct.
As articulated earlier throughout this thesis, the challenge in properly addressing Inauthentic Art and Craft is getting the coloniser in the relationship to see beyond its own field of vision,698 and view issues through Aboriginal Terms of Reference. Similar to recommendation 2, this recommendation goes to issues of conduct and behaviour between art dealers and Aboriginal and Torres Strait Islander artists, rather than the conduct of those creating and supplying Inauthentic Art and Craft without artists’ involvement. In that regard, this recommendation will not prohibit Inauthentic Art and Craft as requested by Aboriginal people throughout the 2017 Inquiry.699
694 Senate Standing Committee on Environment and Communications, Chapter 8 – Threats to the Indigenous Art Market (Completed inquiries and reports, 2004-2007) 8.15 (‘Visual Arts Inquiry’). 695 Visual Arts Inquiry (n 694) 8.15. 696 Ibid. 697 Watson (n 503) 8. 698 James Blaut, The Colonizer’s Model of the World: Geographical Diffusionism and Eurocentric History (The Guilford Press, 1st ed, 1993) cited in Watson (503) 103. 699 Carol McGregor submission (n 573); Darwin Aboriginal Art Fair submission (n 605) 7; Warmun Art Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 154, 14 June 2018) 1 (‘Warmun 158
Recommendation 8: consultation process to develop stand-alone legislation protecting ICIP700 Artists and those working in the industry have long called for stand-alone legislation to protect the ICIP rights of Aboriginal and Torres Strait Islander people.701 Because Indigenous artistic and cultural expressions are linked with cultural beliefs, Indigenous people consider that any legislative option should reflect a holistic approach and cover all Indigenous intellectual and cultural property.702 The submissions to the 2017 Inquiry demonstrated strong support for specific standalone legislation to help combat Inauthentic Art and Craft.703 Janke recognises that once the subject matter of standalone legislation is resolved, issues will remain as to how the proposed legislation can adequately recognise the complexities associated with communal ownership of art and cultural expression.704
Recommendation 8 for standalone legislation was the only option suggested by the 2017 Inquiry Committee that involved law reform. This was despite many submissions giving support705 for legislative amendment to the ACL to prohibit the supply of Inauthentic Art and Craft in the immediate term.706
Art Centre submission’); Indigenous Art Centre Alliance, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 91, undated) 4 (‘IACA submission’); Aboriginal Art Centre Hub of WA submission (n 600) 2; NSW Government, Create NSW, Arts, Screen and Culture, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 137, undated) 11 (‘NSW Government, Create NSW, Arts, Screen and Culture’). 700 ‘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’, Inquiry Report (n 330) xxi. 701 Minding Culture Report (n 47) 8. 702 Janke (n 6) 19. 703 Cairns Indigenous Art Fair submission (n 679) 4; Desart submission (n 229) 2; Delvene Cockatoo-Collins submission (n 569); Stephanie Parkin submission (n 575) 1; Arts Front and Feral Arts submission (n 686); Arts Law and Indigenous Art Code submission (n 677) 2. 704 Janke (n 6) 20. 705 Arts Law and Indigenous Art Code submission (n 677) 2; Stephanie Parkin submission (n 575) 1; Glenn Iseger-Pilkington submission (n 108) 3; Frank Young submission (n 644) 4; Ignatius Taylor submission (n 424) 4; Arts Front and Feral Arts submission (n 686); Ian Goss submission (n 679). 706 Arts Law and Indigenous Art Code submission (n 677) 1. 159
6.4 Evidence from the 2017 Inquiry to prohibit Inauthentic Art and Craft Many submissions to the 2017 Inquiry called for the production and sale of Inauthentic Art and Craft to be illegal707 and called for government to take action to stop708 Inauthentic Art and Craft. The 2017 Inquiry Committee recognised the joint submission by the Indigenous Art Code and Arts Law Centre of Australia which proposed amendments to the ACL to make it an offence to supply or offer to supply: • an artwork that (being a creative expression in material form) includes Indigenous Cultural Expression that is not either:
o handcrafted by an Aboriginal or Torres Strait Islander person; or o a licensed reproduction of an artwork created by an Aboriginal or Torres Strait Islander person; • certain traditional artefacts that are not handcrafted in Australia by an Aboriginal or Torres Strait Islander person.709
The proposed amendment to the ACL reflects the majority of views expressed by Aboriginal and Torres Strait Islander people requesting government action to stop Inauthentic Art and Craft and make its production and sale illegal.710 The 2017 Inquiry heard evidence from ACL experts who set out the benefits of amending the ACL. Such benefits included the amendment falling within the power of the ACCC to enforce the prohibition, a broad set of penalties and remedies already available under the ACL and the cost effectiveness when compared to other proposed regimes.711 The ACCC did not agree with such evidence because it held the view that the ACL is an economy-wide law and is therefore not best placed to safeguard Indigenous culture.712 Arguably, the ACL amendment is not aimed at protecting Indigenous culture to the
707 Darwin Aboriginal Art Fair submission (n 605) 7; Warmun Art Centre submission (n 699) 1; IACA submission (n 699) 4; Aboriginal Art Centre Hub of WA submission (n 600) 2. 708 Vicki Williams submission (n 644) 1; Regina Lankin submission (n 644) 1; Beth Inkamala submission (n 579) 2; Ada Beasley submission (n 442) 2; Patricia Robinson submission (n 644) 1; Nici Cumpston submission (n 644) 1; Delvene Cockatoo-Collins submission (n 569) 1; Myvanwy Moar submission (n 334) 1; Stephanie Parkin submission (n 575) 1; Joann Russo submission (n 636) 7; Roanna Jacob submission (n 422) 3; Margaret Mara submission (n 626) 3; Bereline Loogatha submission (n 443) 3; Frank Young submission (n 644) 4; Ignatius Taylor submission (n 424); Marjorie Williams submission (n 580) 3; Betty Muffler submission (n 579) 2; Margaret Kemarre Ross submission (n 644) 1; Hogarth submission (n 107) 2; John Smith Gumbula exhibit (n 565) 2. 709 Inquiry Report (n 330) 52. 710 Warmun Art Centre submission (n 699) 1; Darwin Aboriginal Art Fair submission (n 605) 7; IACA submission (n 699) 4; Aboriginal Art Centre Hub of WA submission (n 600) 2; NSW Government, Create NSW, Arts, Screen and Culture (n 699) 11. 711 Inquiry Report (n 330) 4.62. 712 Ibid 4.64. 160
extent that standalone legislation would, but is rather aimed to regulate the conduct of those who are misleading consumers as to the authenticity of products they are selling.
The position taken by the ACCC was challenged in a supplementary submission by the Arts Law Centre of Australia and the Indigenous Art Code, who advised that the ACL as a broad, economy-wide law already applies itself to industry specific regimes including regulation of anti-competitive conduct specific to the telecommunications industry, rules relating to the regulation of the shipping liner industry, and specific regulation of marketing techniques such as the use of country of origin, including rules about where claims like Made in Australia can be made.713 The supplementary submission advised the 2017 Inquiry Committee that ACL involvement in industry specific regimes occurs typically because the general, economy-wide prohibitions are considered to be insufficient to address concerns with the conduct714 and advocated that in light of these existing specific regimes the proposed ACL amendment would not be unusual or uncommon.715
Despite this argument, the 2017 Inquiry Committee ultimately agreed with the ACCC’s position by stating that the ACL is inadequate to protect Aboriginal and Torres Strait Islander cultural expressions and therefore cannot address issues of Inauthentic Art and Craft.716 Professor Watson asserts that in such policy and regulatory situations, it is difficult to sustain Aboriginal culture when the dominant colonising and legal order of government is founded upon a denial of Aboriginal existence and insistence of on one law for all.717 This is reflected in the ACCC’s insistence that the ACL is a broad economy wide laws with no scope to include the proposed ACL amendment, despite it having carriage over other specific areas of industry identified above.
Instead the 2017 Inquiry Committee recommended that standalone legislation is likely to be the best long term solution to address the issue and that consultation should be started in 2019.718 Janke recommends that any consultation process around standalone legislation should be thorough and empower Aboriginal and Torres Strait Islander people.719 While there is
713 Arts Law and Indigenous Art Code submission (n 677) 2. 714 Ibid. 715 Ibid. 716 Inquiry Report (n 330) 4.83. 717 Watson (n 503) 45. 718 Inquiry Report (n 330) xiii. 719 Janke (n 6) 21. 161
recognition that drafting of standalone legislation is likely to be complex, governments have managed to previously legislate on other complex issues such as taxation and corporations law. Although government commitment to the underlying concepts of the legislation and resources is needed,720 Janke observes that while Aboriginal and Torres Strait Islander people are only three percent of the population there is no political will for change to law.721 In a House of Representative debate in February 2019, Madeline King MP and others who sat on the 2017 Inquiry Committee gave support to recommendation 8. In particular, Madeline King advocated to create laws that were unique to cultural expression and commented that it was not ‘beyond the wit of Australians to protect the great cultural heritage of our First Nations peoples’.722 As at the date of this thesis, government is yet to respond to the 2017 Inquiry Report.
Given there has been calls for standalone legislation for decades, it is fair to question the reality of such a consultation process beginning or eventuating as recommended in the 2017 Inquiry Report. The 2017 Inquiry Committee warned participants against the process becoming a ‘talkfest’. At a public hearing in Canberra in September 2018, a representative of the ACCC was speaking on the expectations and scope of the ACL in the context of being a possible solution to address Inauthentic Art and Craft.723 The 2017 Inquiry Committee Chair responded: I believe that this is an opportunity where, rather than just having a talkfest for an inquiry, you come back to us with the exact descriptors that we need to take to the minister to say, 'Change the legislation by doing this and we will have an effective outcome.' Even though you're only part of the picture that will make a difference.724
An exchange with the 2017 Inquiry Committee Chair ensued, with a representative of the Treasury expressing hesitation about the ACL being used in this context of Inauthentic Art and Craft, ‘how we define what’s authentic or what isn't authentic, I do worry about how we jump
720 Janke (n 6) 21. 721 Terri Janke, ‘Protecting Indigenous Cultural Expressions in Australia and New Zealand: Two Decades After the Mataatua Declaration and Our Culture, Our Future’ (2018) (114) Journal of the Intellectual and Industrial Property Society of Australia and New Zealand 21, 27. 722 Commonwealth, Parliamentary Debates, House of Representatives 13 February 2019 (Madeline King)
to a very prescriptive rule that tells you that in the Australian Consumer Law’. The 2017 Inquiry Committee Chair responded: Well, how many of us are Indigenous? That's not up to us to determine. What we're trying to do now is get the determination from the First Nations peoples of what it is, and then it's for us to respond with the policy direction and legislative development that backs them in, because some of the commentary that has come to us is: 'Yes, thanks for coming and having a chat. It's lovely to meet you. The last mob didn't do anything.' That's not good enough. Very often we back off because it seems to be a little bit hard. And, yes, it is, but that's why we're here.725
This is another example of the fixation on needing to exactly define and categorise the concept of authenticity in order to address and potentially prohibit Inauthentic Art and Craft.
Arguably, and as proposed by the ACL amendment, the issue of authenticity does not need to be strictly defined and categorised in order for legal measures to be put in place to stop parties from producing and selling Inauthentic Art and Craft. The evidence submitted to the 2017 Inquiry heavily favours the position that the issue of definition should not outweigh the need to address the theft of culture that is occurring through the continued existence of Inauthentic Art and Craft. While there appears to be goodwill and an intention to listen to First Nations peoples726 and provide an effective outcome,727 it does not translate into strong legislative measures and action.
As expressed by the 2017 Inquiry Committee Chair at the public hearing, there is real founded concern of Aboriginal and Torres Strait Islander people that the 2017 Inquiry is in fact a talkfest and they are cautious that anything will be achieved. Aboriginal and Torres Strait Islander people have not been ambiguous in their evidence and requests to the 2017 Inquiry and government for action. The message has been repeated and is very clear, as expressed by Patricia Robinson by Tangentyere Art Centre, Alice Springs, ‘The law should be strong and protect my people and culture and stop the fake art coming into Australia’.728
If recommendation 8 in the form of standalone legislation is not developed as a matter of urgency, the 2017 Inquiry Committee and government will not have actioned the requests of
725 Ann Sudmalis Canberra public hearing (n 724) 8. 726 Ibid. 727 Ibid. 728 Patricia Robinson submission (n 644) 2. 163
Aboriginal people to provide strong laws to protect culture and stop the fake art from coming into Australia.729 While this position may be disappointing to those who participated in the 2017 Inquiry, it is arguably predictable given the history of policy approaches taken with respect to Indigenous people, fuelled by an underlying colonial relationship.
Indeed, the evidence demonstrates that there is a disconnect between the issues being articulated by Aboriginal and Torres Strait Islander people and the way in which those issues are being received, interpreted and prioritised by decision makers and governing bodies. This is exemplified through the tension between the 2017 Inquiry’s need to define authenticity and identify the economic value and markets of Inauthentic Art and Craft in order to understand the issue. This is compared to the evidence of Aboriginal and Torres Strait Islander people who identify the Inauthentic Art and Craft as a flagrant theft of culture, causing significant cultural harm. The disconnect is also visible throughout the 2017 Inquiry Report where a range of recommendations to address Inauthentic Art and Craft are provided, none of which prohibit the sale of Inauthentic Art and Craft. This is compared to the vast amount evidence provided by Aboriginal and Torres Strait Islander people explicitly stating Inauthentic Art and Craft has no place in Australia and strong need to be put in place to stop its proliferation.
Due to the colonial underpinnings of Inauthentic Art and Craft, decision makers and governing bodies arguably do not have the capacity to comprehend such issues from an Indigenous lens or viewpoint. This is reinforced through the colonial structures of government and law within which they operate. Despite the deficiencies of the colonial relationship outlined above, amendments to the existing ACL framework have been proposed to prohibit the sale of Inauthentic Art and Craft. While there is hesitation from the ACCC about how to implement and enforce the proposed ACL amendments, I argue this should not prevent the ACL and associated agencies from working with Aboriginal and Torres Strait Islander people to achieve an appropriate outcome. Anderson’s work suggests that such a response from the ACCC is not uncommon, as Indigenous culture is generally viewed in and by the law as problematic, particularly where there a question for accommodating for a difference in the law.730
729 Ibid. 730 Anderson (n 130) 34. 164
While the 2017 Inquiry Committee did not recommend an amendment to the ACL, Bob Katter MP and Senator Sarah Hanson-Young proposed their own separate bills to amend the ACL to prohibit Inauthentic Art and Craft. Each of the bills are explored further below in this Chapter.
6.5 Katter Bill The purpose of Katter Bill is to ‘prevent non-Australians and foreigners from benefitting from the sale of Indigenous art, souvenir items and other cultural affirmations and thereby depriving Aboriginal and Torres Strait islanders of the rightful benefits of their culture’.731 The Katter Bill includes definitions for terms that are integral to the proposed amendment, including ‘indigenous artist’, ‘indigenous community’ and ‘indigenous cultural expression’. The prohibition proposed in the Katter Bill was drafted as follows: This item prohibits a person from supplying or offering to supply to a consumer anything that contains an indigenous cultural expression. There is an exception to this prohibition where the thing is supplied by, or in accordance with an arrangement with, each indigenous community or indigenous artist with whom the expression is connected. In addition the thing must also be made in Australia. The Minister must appoint a committee that is representative of Indigenous communities to monitor compliance with the Act and report to the Minister on amendments that can be made to the Act to better protect the rights of indigenous communities and artists’.732
The item that follows clarified that it would be ‘an offence for a person to supply, or offer to supply, a thing that is an indigenous cultural expression unless the thing is supplied by, or under an arrangement with, an indigenous community or artist’.733 The exception reflects many of the submissions to the 2017 Inquiry identifying that a licence734 with an Aboriginal or Torres Strait Islander person is required in order for a product containing a cultural expression to be considered authentic.735
731 Explanatory Memorandum, Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 (Cth) 2 (‘Explanatory Memorandum Bob Katter Bill’). 732 Ibid 4. 733 Section 168A Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 (Cth). 734 Hogarth submission (n 107) 2; Darwin Aboriginal Art Fair submission (n 605) 2; Vivien Anderson, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 146, undated) 2; IACA submission (n 699) 1; Aboriginal Art Centre Hub of WA submission (n 600) 2; Jacqueline Healy, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 57, November 2017) 1 (‘Jacqueline Healy submission’); Maningrida Arts and Culture submission (n 438); Ku Arts submission (n 693) 3; Arts Front and Feral Arts submission (n 686) 9. 735 Other than an Aboriginal or Torres Strait Islander person creating a product containing a cultural expression. 165
The purpose of the Katter Bill reflects the overall message being voiced by Aboriginal and Torres Strait Islander people throughout the Inquiry process, including the need to protect Aboriginal art and culture from exploitation. However, the Katter Bill only recognises exploitation of cultural expression by those people who do not identify as an Aboriginal or Torres Strait Islander. This would not capture the concerns raised in Chapter 4 of this thesis around Indigenous people possessing the cultural authority to produce works.
During the second reading speech of the Katter Bill on 11 September 2017, Bob Katter expressed that styles of paintings which were ‘culturally identifiable as First Australian artwork’ were being copied in China, India and Indonesia and ‘sold as genuine, authentic First Australian art’ in Australia. While previous case law, like the Birubi Decision demonstrates that producers of Inauthentic Art and Craft will breach misleading and deceptive conduct provisions of the ACL when representing Inauthentic Art and Craft as ‘genuine, authentic First Australian Art’,736 the Katter Bill attempts to fill the gap in the law where no such representations of authenticity are made. In a media release, Bob Katter highlights that the manufacture of Inauthentic Art and Craft meant that jobs were being sent overseas, and confirmed that the Bob Katter Bill would ensure that jobs would ‘remain here in Australia – and Indigenous art will remain the property of the First Peoples’.737
The Katter Bill proposed that this would be achieved through the requirement that such products, the subject of the amendment, could only be made by an Aboriginal or Torres Strait Islander person in Australia. The Katter Bill’s proposal to limit the manufacture of such products to Australia was indirectly addressed in various ways by those contributing to the Inquiry. In that regard, participants in the Inquiry approached the issue in different ways, with some submissions: • agreeing with the requirement to limit production to Australia only, by asserting that all products embodying Aboriginal cultural expression made overseas be banned from importation into Australia;738
736 Commonwealth, Parliamentary Debates, Senate, 11 September 2017 (Bob Katter, Senator) 670. 737 Media release Bob Katter ‘Fake Indigenous art Bill Boomerangs back into Parliament’ Media release (Web page, 11 September 2017)
• partially agreeing with the requirement to limit production to Australia only, by stating that: 739 o some items should only be made in Australia by Aboriginal people, for example, the yidaki or boomerang;740
o only Inauthentic Art and Craft should be banned from importation into Australia; and • rejected the requirement to limit production to Australia only,741 on the basis that some Aboriginal and Torres Strait Islander artists rely on overseas manufacturers to assist with the creation of products that contain cultural expressions.742
While the purpose of the Katter Bill to stop the theft and exploitation of Aboriginal cultural expression reflects the position of the majority of those contributing to the 2017 Inquiry, the requirement that such products are only made in Australia prevent Aboriginal and Torres Strait lander artists engaging with overseas manufacturers to produce products. This would likely have a further negative economic impact on Aboriginal artists, both independent and those associated with an art centre. Arguably, such impact would continue the colonial influence by making it more difficult for Aboriginal and Torres Strait Islander artists to earn money from the sale of their artwork.
Without the ability for Aboriginal artists to engage with overseas manufacturers, the Katter Bill falls short of the expectations of Aboriginal and Torres Strait Islander people as articulated throughout the 2017 Inquiry. Echoing similar comments to that of the Inquiry Committee Chair,743 Bob Katter acknowledged the commencement of the Inquiry, but was critical that ‘all we get is inquiries’, ‘nothing ever happens’, and reiterated to government that ‘we want action on this’.744 Aside from consideration of the model of the bill, Bob Katter’s private members’ bill is unlikely to become law unless it gains the support of the majority of the House of Representative Members and then also pass the Senate.745 While this does not occur often, as private members’ bills are usually prepared by non-aligned Members, the model in the Katter
739 Indigenous Art Code submission (n 336) 1. 740 Arts Front and Feral Arts submission (n 686) 7. 741 Name withheld submission (n 335) 1; FORM submission (n 629) 3. 742 For example, fine bone China plates, mugs or bowls which have artwork reproduced on them, Indigenous Art Code submission (n 336) 9. 743 Ann Sudmalis Canberra public hearing (n 724) 8. 744 Katter (n 737). 745 Commonwealth, Infosheet 6 - Opportunities for Private Members, The House of Representatives
Bill itself may influence government to adopt its own similar amendment. Despite the Katter Bill being unlikely to progress to law, its introduction as a private members’ bill signals to the public the need for legislative action and stimulate debate on this specific issue.
6.6 Hanson-Young Bill The Hanson-Young Bill has a similar premise to that of the Katter Bill and builds on it by providing additional terms and expanded definitions, requirements for licensing and categorisation of particular artefacts.746 A significant difference between the Katter Bill and the Hanson-Young Bill is that the Hanson-Young Bill provides further guidance around the production and supply of particular artefacts. For example, if an item falls within the definition of an ‘Indigenous cultural artefact’ such as a yidaki or didgeridoo, boomerang or clapstick, such artefacts can only be supplied within the ACL if it is made by an Aboriginal community with whom the cultural expression contained on the artefact relates.747
This reflects a range of submissions to the Inquiry who advised that artefacts like boomerangs should only be made in Australia by Aboriginal people using Australian materials.748 For example, the Inquiry heard of the particular recognition of the Yolngu people of North East Arnhem Land as the creators, keepers and sharers of the yidaki: Yidaki’ is the term to be used for instruments from North East Arnhem Land that have been made and decorated solely by Yolngu people. All other instruments should be called Didjeridus, unless they are made by an Aboriginal person and called by their local Aboriginal name for the instrument.749
Several artists from Buku-Larrngay Mulka Centre in Yirrkala provided further evidence to the Inquiry about the importance of the yidaki. Wukun Wanambi stated: My aim is talking about nyal yidaki. It means fake yidaki or didgeridoo. We know that some yidaki, nyal yidaki, in Indonesia is coming into Australia to show, and people are buying it. But, please, Australia, we don't want that. We want real yidaki, to sell yidaki real, because the real one has got a real name, and the fake, nyal, has got no strength.750
746 Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019 (Cth) schedule 1 (‘Hanson-Young Bill’). 747 Ibid. 748 Jacqueline Healy submission (n 734) 1; Abigail Chaloupka submission (n 432) 2; Arts Front and Feral Arts submission (n 681) 7. 749 Buku-Larrngay Mulka Centre submission (n 625) 6. 750 Ibid 2. 168
Burrngupurrngu Wunungmurra said that ‘Ngäpaki (non-aboriginal) should respect yidaki ga Yolngu. We are the first people to play yidaki, first people singing ga dancing bunggul djäma (ceremony) with bilma (clapsticks)’.751
Milkayngu Munuggurr’s message to the Inquiry and general public was clear, ‘I just want to say that people should respect yidaki. Because of where it comes from, where it originated. Don't make it, or use it for bad reasons. Respect it. Don't make fun of it. Play for fun, to entertain. Use it, and keep it, and respect it always’.752
Watjuku Gurruwiwi spoke of the difficulties that Inauthentic Art and Craft brings, ‘So it's really hard nowadays that people just want... want to make up a didjeridu. Firstly they'll think.... think that is made by Yolŋu People, but they copy it from, copy it from Yolŋu People. I didn’t go to internet and pick it up... I’m carrying on my old man's tradition’.753
In the context of the evidence provided by the Yolŋu People identified above, the Hanson- Young Bill could operate to ensure that non-Yolŋu people could not make and commercially supply a yidaki for sale in Australia. In another context, the Hanson-Young Bill could function to ensure that boomerangs supplied for commercial sale could only be made in Australia by an Aboriginal person, meaning that boomerangs made overseas, whether handmade or mass- produced by non-Indigenous people, would contravene the Hanson-Young Bill. The amendment also includes an outright prohibition on the supply of ‘Indigenous ceremonial or sacred artefact’, suggesting that some artefacts are so sacred that they are not available for consumer purchase at all.
The Hanson-Young Bill reflects the majority of evidence put forward by Aboriginal and Torres Strait Islander people that the existence of Inauthentic Art and Craft has no place in Australia and its manufacture and sale should be prohibited by law. While the Hanson-Young Bill includes a requirement that the Minister appoint a committee of Indigenous representatives to monitor compliance and report to the Minister on any changes that may be needed,754 this could
751 Ibid 9. 752 Ibid. 753 Ibid. 754 Hanson-Young Bill (n 746) section 50A(7) 169
be strengthened by Aboriginal and Torres Strait Islander representation and involvement throughout the development of the bill, implementation and enforcement of its provisions.
Throughout this thesis it has been highlighted that exploitation and misuse of Aboriginal cultural expression is part of the architecture of colonial occupation, and as a result Aboriginal and Torres Strait Islander people have been excluded from decision making regarding the use, recognition and protection of their cultural expressions across all sectors and industries, including through Inauthentic Art and Craft. One way to rectify the ingrained policy of exclusion is to ensure that Aboriginal and Torres Strait Islander people have the ability to control over the way in which laws are crafted and ultimately implemented and enforced. In light of the evidence provided by Aboriginal and Torres Strait Islander people to the Inquiry and proposed solutions, the Hanson-Young Bill is the closest proposal that reflects the evidence of Aboriginal and Torres Strait Islander people to prohibit Inauthentic Art and Craft and introduce penalties for those who continue to supply it.
On 4 July 2019, the Senate referred the Hanson-Young Bill to the Environment and Communications Legislation Committee for inquiry and report to government by 5 December 2019. As part of that process, submissions were called to comment on the Hanson-Young Bill. The report relating to the Hanson-Young Bill does not form part of the data analysis of this thesis however further consideration of that particular inquiry and any proposed government response to the Hanson-Young Bill and 2017 Inquiry Report would likely add to this body of work.
Similar to that of the Katter Bill, the likelihood of the Hanson-Young Bill becoming law is slim given the limited numbers of Green Party members in the House of Representatives and the Senate. Despite this, the prohibition model itself should be considered as forming part of the governments’ own approach to law reform in this area. This is particularly relevant to the Minister for Indigenous Australia, Minister Wyatt’s recent referral to amend existing law to protect ‘a unique art style’ when speaking about Aboriginal art.755 This process including discussions around law reform should be developed and led by Aboriginal and Torres Strait Islander people.
755 Allam (n 476). 170
6.7 Conclusion This Chapter has considered and analysed the eight recommendations included in the 2017 Inquiry Report provided to government to address Inauthentic Art and Craft. In particular, this Chapter has considered each of the Inquiry Committee’s recommendations in light of the evidence provided to the 2017 Inquiry by Aboriginal and Torres Strait Islander people.
I argue that the evidence of Aboriginal and Torres Strait Islander people has not been received by the Inquiry Committee, and hence not incorporated into the recommendations. This is primarily due to the fact that none of the recommendations stop or prohibit Inauthentic Art and Craft from existing in the market. While the Inquiry Report recommendations are likely to go some way in raising more awareness of the issues, addressing the Inauthentic Art and Craft through a clearer understanding of the industry (through economic research), boosting tourist and consumer confidence (through certification trade mark, targeted education and information standards), the recommendations neither individually or collectively will stop or make Inauthentic Art and Craft illegal756 as requested by Aboriginal and Torres Strait Islander people throughout the Inquiry. In other words, none of the recommendations identified in the Inquiry Report were specifically designed with the intention or aim to stop Inauthentic Art and Craft from existing in the market, and in that case, their effectiveness prohibiting Inauthentic Art and Craft will be limited.
The closest recommendation in the 2017 Inquiry Report that would act to prohibit Inauthentic Art and Craft is the recommendation to introduce standalone Indigenous cultural and intellectual property legislation. However, that recommendation is unlikely to take effect anytime in the near future due to the length of time to consult and craft its provisions. I argue that the continued length of time without any enforceable laws against Inauthentic Art and Craft is favourable to producers of Inauthentic Art and Craft, and conversely problematic for Aboriginal and Torres Strait Islander people who have already campaigned for decades for meaningful change and law reform to occur. The need to prohibit Inauthentic Art and Craft from existing in the market has been part of a very clear and strong message articulated by Aboriginal and Torres Strait Islander people throughout the Inquiry and for decades prior.
756 Aboriginal Art Centre Hub of WA submission (n 600) 2; Carol McGregor submission (n 573) 1; Darwin Aboriginal Art Fair submission (n 605) 7; Warmun Art Centre submission (n 699) 1; NSW Government, Create NSW, Arts, Screen and Culture (n 699) 11. 171
I applied the same method of analysing the Inquiry evidence in the context of the Katter Bill and Hanson-Young Bill. In this case, the question was slightly different to the question asked in relation to the 2017 Inquiry Report. The questioned was: ‘Has the evidence of Aboriginal and Torres Strait Islander people been incorporated into the proposed amendments to the ACL to address Inauthentic Art and Craft?’
In light of the evidence provided by Aboriginal and Torres Strait Islander people to the Inquiry, I found that the Hanson-Young Bill compared to the Katter Bill more accurately reflects the evidence of Aboriginal and Torres Strait Islander people to prohibit Inauthentic Art and Craft. This is because the Hanson-Young Bill prohibits the sale of Inauthentic Art and Craft unless it is made by an Aboriginal or Torres Strait Islander person or under a licence agreement. While the provisions themselves may not address the cultural value that Aboriginal and Torres Strait Islander people attach to their cultural expressions, the provisions address the conduct of those intending to exploit and profit off the misuse of cultural expression through the sale of Inauthentic Art and Craft.
From my analysis, the Hanson-Young Bill acts to ensure there is Aboriginal or Torres Strait Islander involvement in the creation of products that contain cultural expressions, which reflects the majority of evidence provided by Aboriginal people in relation to the need to maintain control over their cultural expression. Further, the Hanson-Young Bill does not restrict artists from engaging with overseas manufactures to produce products provided a licence agreement is in place. I make this suggestion in addition to required non-legislative measures to support the bill, including funding for artists and art centres, continued education for artists in relation to intellectual property rights and contracts and for manufacturers, retailers and consumers in relation to the importance of Aboriginal cultural expression in the visual arts market and more broadly within Australia’s national identity.
I recognise that while amendments to the ACL proposed by the Katter Bill and Hanson-Young Bill have the potential address the conduct of producers of Inauthentic Art and Craft from a legal perspective, there still remains unresolved issues of colonial control and power that reinforce the existence of Inauthentic Art and Craft. That is not to suggest that ACL amendments to prohibit Inauthentic Art and Craft should not be introduced. The ACL amendment proposed by Hanson-Young is a legal approach to Inauthentic Art and Craft that does not currently exists, by setting a clear understanding of the conduct and supply of products 172
containing cultural expression that is acceptable and not acceptable in Australia. If implemented and enforced such a law would not only give legal clarity to an issue that currently operates in a grey space, it would also send the message nationally and internationally that Australia is serious about stopping the exploitation of Aboriginal culture and cultural expression. Anything less would send a message that Australia is content with the continued exploitation of Aboriginal cultural expression through Inauthentic Art and Craft. The latter approach through lack of government action would again validate the views shared by Aboriginal and Torres Strait Islander people throughout the Inquiry who are sceptical of any meaningful change arising from the 2017 Inquiry process.
The Hanson-Young Bill is now subject to its own separate inquiry and it is unclear on what basis the Hanson-Young Bill will ultimately take, or if government will implement it. As noted previously, the Hanson-Young Bill is unlikely to be become law given the limited numbers of Green Party members in the House of Representatives and the Senate. Despite this, I propose that the prohibition model itself should be considered and developed as forming part of the governments’ own approach to law reform in this area,757 with full participation and involvement of Aboriginal and Torres Strait Islander people using Aboriginal Terms of Reference. I suggest that if the Hanson-Young Bill is further amended or watered down throughout its own inquiry process, particularly in relation to the offence and exception provisions, it may no longer reflect the evidence presented by the majority of Aboriginal and Torres Strait Islander people to the 2017 Inquiry.
757 Allam (n 476). 173
Chapter 7
Recommendations to Prohibit Inauthentic Art and Craft
7.1 Introduction In taking into account the evidence submitted to the 2017 Inquiry by Aboriginal and Torres Strait Islander people, relevant literature and the Katter Bill and Hanson-Young Bill, this Chapter presents my proposed solutions to address Inauthentic Art and Craft. The way in which I approach the proposed solutions is informed by the overwhelming evidence presented by Aboriginal and Torres Strait Islander people to the Inquiry about the impact that Inauthentic Art and Craft has on culture and that it has no place in Australian society. That is the guide from which I test and consider the proposed solutions set out in this Chapter. The following recommendations are not ranked in any particular order of importance, but are instead ranked according to how the initial recommendations influence the effectiveness of the recommendations that follow. Given the various impacts that Inauthentic Art and Craft has on Aboriginal and Torres Strait Islander people, the proposed solutions must be multipronged in order to have comprehensive and effective impact. Indeed, while the research has focused on what the law can do to stop exploitation of cultural expression, this thesis has revealed there are also non-legislative solutions and changing of ideologies that must work alongside the law so that effective change can occur. The following recommendations form part of a multipronged model for reform that I propose will answer the research questions ‘How can the law stop the exploitation of Aboriginal cultural expression through Inauthentic Art and Craft?’ in addition to non-legislative approaches.
7.2 Recommendations
Inauthentic Art and Craft must be recognised as a product of ongoing colonialism This thesis positions Inauthentic Art and Craft as a product of colonial control and power in Australia. I propose that any solutions to address Inauthentic Art and Craft are unlikely to be effective if Inauthentic Art and Craft is not recognised and understood as part of the ongoing colonial endeavour. This is the starting point from which the structures to question and dismantle ideologies surrounding Aboriginal people and Inauthentic Art and Craft must begin.
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Those creating and supplying Inauthentic Art and Craft, policy and law makers must each engage with and recognise their own roles in perpetuating the colonial status quo by allowing Inauthentic Art and Craft to proliferate. This requires in depth and ongoing education not only on the exploitation of cultural expression through Inauthentic Art and Craft, but broader colonial ideologies that have influenced policy and law to justify the exploitation of Aboriginal and Torres Strait Islander people. This is because Inauthentic Art and Craft does not exist in isolation, but is rather one part representing the colonial imposition in Australia.
A different approach is needed because the colonial system has not worked for Aboriginal and Torres Strait Islander people and arguably, not even for non-Indigenous people. Despite the evidence of the colonial failure, Australia’s governing bodies persist in regulating the lives of Aboriginal and Torres Strait Islander people. This is in conducted in ways that are damaging and harmful, firm in the belief that with the right policy approach, funding arrangements, set of sanctions and incentives, Indigenous lives will somehow improve.758 This is the case because the Australian state remakes and sustains itself through both Aboriginal participation in government and the imposition of settler authority over Indigenous lives.759 Arguably, unless and until Inauthentic Art and Craft is viewed and understood as a product of the colonial framework and replaced with Aboriginal Terms of Reference and perspectives, solutions to address the problem will fall short of getting to the heart of the problem.
While there is a need to have legislative change to set the standard upon which conduct around Inauthentic Art and Craft and measured and acted upon, that position can only be further strengthened and supported by the legislatures and policymakers recognising the role that colonial structures play in continuing the exploitation of cultural expression. Steps must be taken to undo that process. As part of this process I suggest that at business or manufacturing level, this requires non-Indigenous businesses and individuals who are operating in the souvenir space to either work with Aboriginal and Torres Strait Islander artists to create souvenir products or to avoid Aboriginal ‘style’ souvenir products altogether. Ethical and transparent manufacturers and retailers could also play a larger role in promoting good practice and respect for ICIP rights, which involves Aboriginal and Torres Strait Islander decision making and consent at all levels of the process. As a starting point, the underlying colonial
758 Maddison (n 519) xviii. 759 Elizabeth Strakosch, Neoliberal Indigenous Policy: Settler Colonialism and the ‘Post-Welfare’ State (Palgrave Macmillan, 2015) 27. 175
relationship that Inauthentic Art and Craft represents must be recognised and understood in order to chart a clear way forward. Anything less risks repeating the same avoidable mistakes that have already occurred over decades in relation to addressing the exploitation of cultural expression.
Incorporate Aboriginal Terms of Reference when addressing Inauthentic Art and Craft The underlying colonial ideologies of Inauthentic Art and Craft reinforces the importance of the work of Dr Lilla Watson and those who have followed, in promoting and implementing the use of Aboriginal Terms of Reference. I propose that once Inauthentic Art and Craft is viewed and understood as product of current day colonialism, it must be viewed and acted upon using Aboriginal Terms of Reference.
The use of Aboriginal Terms of Reference requires consideration of Inauthentic Art and Craft from an Indigenous world view,760 which has the effect of employing terms and outcomes that are respective of Aboriginal perspectives. The benefit of using Aboriginal Terms of Reference in such circumstances is that Aboriginal perspectives are not limited to Western frameworks. This approach, which is a challenge to policy and law makers, should be implemented and driven by Aboriginal and Torres Strait Islander people in policy and law reform, which ultimately benefits non-Indigenous people and perspectives.
I propose that using Aboriginal Terms of Reference to view and address Inauthentic Art and Craft will reconceptualise the value and importance of issues. While some of the terms and issues viewed through Aboriginal Terms of Reference may be the same, their meanings and values will be different. For example, the term ‘cultural expression’ may be used throughout legislation and policy, but when viewed and understood from an Aboriginal Terms of Reference a different meaning will likely be revealed. This was apparent throughout much of the evidence provided by Aboriginal and Torres Strait Islander people to the Inquiry, speaking of deep connections, knowledge and stories. Indeed, the Inquiry evidence demonstrates the rich authority and willingness that Aboriginal and Torres Strait Islander people have to inform guidelines and frameworks through which Inauthentic Art and Craft must be viewed and dealt with, including with law reform efforts and enforcement of laws.
760 Winch and Hayward (n 480) 26. 176
Law reform reflecting Indigenous Cultural and Intellectual Property (ICIP) rights The Chapters in this thesis have revealed the gaps in existing laws such as copyright and Australian Consumer Law (ACL) that have contributed to the ongoing existence of Inauthentic Art and Craft. Such gaps in law have also revealed an inability for existing laws to comprehensively recognise and protect ICIP rights. I acknowledge that the need for standalone legislation to protect ICIP rights has long been called for in Australia. This thesis adds to those ongoing calls and supports the need for reform in this area.
While broader ICIP legislation is likely to take comprehensive approach to a range of rights being recognised, I propose that for the purposes of addressing Inauthentic Art and Craft, a prohibition on such practice is included. Such a prohibition could take the form as proposed throughout the 2017 Inquiry evidence, that prohibitions a product being made incorporating and Aboriginal or Torres Strait Islander cultural expression unless it is actually made by an Aboriginal or Torres Strait Islander or under a fair and transparent licence agreement. A prohibition of the like would act to ensure that Aboriginal and Torres Strait Islander people have control over and have decision making power over the creation of such works. The need for a prohibition also reflects the overwhelming evidence of Aboriginal and Torres Strait Islander people submitted to the 2017 Inquiry. Such laws may also have the ability to eliminate the capacity of companies to engage in phoenix activity, as discussed in Chapter 3 of this thesis. In that regard, I suggest that the principles of Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)761 should inform and guide the development of ICIP legislation to ensure Aboriginal and Torres Strait Islander rights are addressed.
As noted throughout Chapter 4, the need for Aboriginal control over the power of definition and use of Aboriginal Terms of Reference is important to address solutions for Inauthentic Art and Craft, including any proposals for law reform. I propose that such framework is employed throughout the process of addressing Inauthentic Art and Craft and law reform, in addition to Aboriginal and Torres Strait Islander decision making. I propose that such measures should also be used in recent proposals by Minister Wyatt to amend legislation to protect ‘a unique art
761 United Nations, The United Nations Declaration on the Rights of Indigenous Peoples
style’ when speaking about Aboriginal art.762 However, any reform process must be developed and led by Aboriginal and Torres Strait Islander people. In this context, the recommendation to introduce standalone ICIP legislation as detailed in this section answers the research question, ‘How can the law protect Aboriginal cultural expression from exploitation?’
Government to consider the prohibition model in the Hanson-Young Bill As identified in this thesis, the current drafting of the ACL allows Inauthentic Art and Craft to exist in a grey area of the law. The current ACL does not have the ability to prohibit Inauthentic Art and Craft. Therefore, an amendment to the ACL to clarify the uncertainty is needed. While the Hanson-Young Bill is in draft form, the intent behind the amendment is to prohibit a product being made incorporating and Indigenous cultural expression unless it is made by an Indigenous person or under a licence agreement. I propose this is a model to amend the ACL that should be developed and considered. The need for a prohibition to prohibit Inauthentic Art and Craft also reflects the overwhelming evidence of Aboriginal and Torres Strait Islander people submitted to the 2017 Inquiry.
While an amendment to the ACL takes the form of a legal approach to Inauthentic Art and Craft, it also sends a clear message nationally and internationally that ICIP is valued by Australia and that penalties and consequences apply if such provisions are contravened. This sends a strong message about the value of Aboriginal people and culture to Australia that has been absent and silent for too long. While the Hanson-Young Bill is unlikely to become law given the limited numbers of Green Party members in the House of Representatives and the Senate, I suggest that the current government, together with Aboriginal and Torres Strait Islander people, considers a prohibition model as part of its law reform efforts. The recommendation for government to consider the prohibition model in the Hanson-Young Bill in conjunction with Aboriginal and Torres Strait Islander people answers the research question, ‘How can the law protect Aboriginal cultural expression from exploitation?’
Legal and business support for Aboriginal and Torres Strait Islander artists Throughout much of the evidence to the 2017 Inquiry it was suggested that Aboriginal and Torres Strait Islander artists require ongoing assistance in relation to understanding their rights
762 Allam (n 476).
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and entering the souvenir and tourist markets. I propose that such support could be provided through ongoing and long-term information and awareness session about artists’ legal and ICIP rights and how to enforce such rights. Greater awareness of such rights, I propose, would empower artists to make informed decisions about their arts and business practices. Such sessions should be tailored to the specific needs of artists and communities and carried out in conjunction with existing bodies that represent and support artists across the nation.
Education for manufacturers, retailers and consumers on ICIP rights In order to support the legislative approaches to reform identified in this Chapter, I propose that education and awareness of ICIP rights is needed. I suggest that specific information about the importance of ICIP is targeted to those who are working with Aboriginal cultural expressions as part of their business models. This would include manufacturers, retailers and consumers of products that incorporate Aboriginal cultural expressions. Tailored education programs would also assist such of the parties in understanding the development and implementation of standalone ICIP legislation. The cultural impacts identified through the 2017 Inquiry process ideally would form part of the education and promotion of issues surrounding Inauthentic Art and Craft and broader exploitation of culture.
Aboriginal and Torres Strait Island people should be at the centre of driving such education programs aimed at the particular sectors of the industry. I propose that if further understanding and awareness of ICIP rights is achieved throughout the broader public from an Indigenous standpoint, there may be less inclination to exploit culture and cultural expressions. Again, education and awareness of ICIP should work closely alongside the development and implementation of ICIP legislation. The work of Terri Janke in the development of ICIP protocols is a valuable source of guidance and direction.
Voice to Parliament and the National Indigenous Cultural Authority The potential roles of a Voice to Parliament and National Indigenous Cultural Authority should be considered as part of the model to address Inauthentic Art and Craft. There is national discussion and debate around each of the proposed bodies which may be relevant to Inauthentic Art and Craft reforms. While these are important national discussions, I propose they should not be the cause of any further delay to address Inauthentic Art and Craft. Rather, such proposals that may have future impact in how Inauthentic Art and Craft is recognised and managed.
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In recognition of the critical need for Aboriginal and Torres Strait Islander people to be engaged in the development and implementation of law and policy, it has been proposed that the Australian Constitution be amended to establish an Indigenous led body.763 This body, or Voice to Parliament, would advise Parliament on law and policies with respect to Indigenous affairs. This could ensure that Indigenous perspectives influence Parliament to enact more effective laws. This specific proposal forms part of the Uluru Statement from the Heart which was proposed by a gathering of Aboriginal and Torres Strait Islander people at Uluru in 2017. The Uluru Statement specifically requires constitutional enshrinement of an advisory body, in addition to a truth-telling process of colonial history through the establishment of a Makarrata commission.764 The current government has rejected the Uluru Statement from the Heart and ruled out the Voice to Parliament in any future referendum on constitutional reform.765 Towards the end of 2019, Minister Wyatt has instead called for a ‘Voice to Government’ which will be legislated and not enshrined in the Australian Constitution. Such an approach again suggests that Aboriginal and Torres Strait Islander people have not been heard. If implemented, legislated or constitutionally enshrined, such a body may be relevant to the reform models to address Inauthentic Art and Craft.
Aboriginal and Torres Strait Islander people in the arts and cultural sector have identified gaps in existing structures and proposed the establishment of the National Indigenous Cultural Authority (NIACA).766 The concept of a NIACA has existed for decades, with the proposed aim of acting as a national peak body for the Indigenous arts and cultural sector. The body is proposed to promote social, cultural and economic development on the use of traditional knowledge, cultural expressions and ICIP.767 According to the NIACA website, a gathering to discuss future directions of the NIACA will occur in the latter half of 2020 at a national
763 Referendum Council, ‘Discussion Paper’ (online, 26 October 2016)
summit.768 Again, approaches to address Inauthentic Art and Craft are likely to be relevant to discussions around the establishment and remit of the NIACA.
7.3 Conclusion This Chapter has answered the research question ‘How can the law protect Aboriginal cultural expression from exploitation?’ by identifying my proposed model to address Inauthentic Art and Craft. The model I propose requires a multi-pronged approach including legislative and non-legislative solutions. The models for reform have been guided by the evidence of Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry.
While I have proposed these solutions for reform, the main purpose of this thesis has been to give prominence to the voices of Aboriginal and Torres Strait Islander people who provided evidence throughout the 2017 Inquiry. Such evidence has been strong, clear and consistent: Inauthentic Art and Craft continues to exploit Aboriginal culture and cultural expression and has no place in Australia. Aboriginal and Torres Strait Islander people have also consistently and eloquently identified and expressed their connections to country, identity, ancestors and family which are maintained and transmitted through cultural expression. The connections to cultural expression identified by Aboriginal and Torres Strait Islander people throughout the 2017 Inquiry have also revealed why the impacts of Inauthentic Art and Craft are so harmful, particularly from a cultural perspective. This research builds on the calls for proper recognition of rights of Aboriginal and Torres Strait Islander people in this country. This requires not only legislative reform as identified in this Chapter, but a deeper process of reflecting and understanding why Inauthentic Art and Craft has been allowed to exploit Aboriginal people in Australia for so long.
While Aboriginal and Torres Strait Islander people have expressed hopefulness throughout the 2017 Inquiry that strong law reform will be introduced, there is an underlying and justified apprehension of any meaningful change arising from the 2017 Inquiry process. In light of the evidence and existing work carried out over many years by Aboriginal and Torres Strait Islander people in this space, the onus is now on government to demonstrate its commitment to make change in respect of Inauthentic Art and Craft. The alternative is to continue the status
768 National Indigenous Arts and Cultural Authority, ‘2020 National Summit’ (online, 2 February 2020)
quo, being comfortable with the exploitation of Aboriginal culture by allowing Inauthentic Art and Craft to proliferate. I argue that regardless of government action or lack thereof, Aboriginal and Torres Strait Islander people and communities will, as they have done for decades, continue to campaign against Inauthentic Art and Craft and advocate for proper recognition and protection of their broader rights in Australia.
Future Research While this thesis has focused on the exploitation of Aboriginal cultural expression through Inauthentic Art and Craft, there are many other areas touching on Indigenous Intellectual Property for further investigation and research. I suggest this thesis could be further developed through comparative research conducted in relation to inauthentic art and craft in other settler colonies including New Zealand, Canada, the United States of America and South Africa.
Further investigation could include theoretical research into Indigenous Intellectual Property, empirical research into infringements of Indigenous Intellectual Property and international legal developments around the implementation of the UNDRIP. Focus on recent cases domestically could also be considered further, including debates around the copyright and cultural ownership of the Aboriginal flag769 and ‘Gumby Gumby’ dispute with the current trade marks’ system.770
769 Lorena Allam, ‘Government Could Buy Aboriginal Flag Copyright to Settle Dispute, Lawyer says’ The Guardian (online, 12 June 2019)
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189
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190
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191
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2017 Inquiry submissions
Aboriginal Art Association of Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Aboriginal Art Centre Hub of Western Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Acker, Tim, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (25 October 2017)
Altman, Professor Jon, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Anderson, Vivien, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (Submission 146, undated)
Armstrong, Delrose, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (14 September 2017)
Arnhem Northern and Kimberley Artists Aboriginal Corporation, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated) 192
Artitja Fine Art, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Arts Ceduna, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Arts Front and Feral Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (29 July 2018)
Arts Law Centre of Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Arts Law Centre of Australia and Indigenous Art Code Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (11 May 2018)
Australia Council for the Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (November 2017)
Beasley, Ada, Artists of Ampilatwatja, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (9 September 2017)
Beetson, Bianca, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (26 October 2017)
193
Boko, Margaret, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (12 September 2017)
Buku-Larrngay Mulka Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Cairns Indigenous Art Fair, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Chaloupka, Abigail, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
CHOICE, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (26 February 2018)
City of Sydney, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (8 November 2017)
Cockatoo-Collins, Delvene, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Community Arts Network Western Australia Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
194
Cook, Samantha, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Copyright Agency, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Create NSW, Arts, Screen and Culture, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Cumpston, Nici, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
Darwin Aboriginal Art Fair, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Desart, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
Faber, Sandra, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (30 October 2017)
FORM Building a State of Creativity Inc, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
195
Gapuwiyak Culture and Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Girringun Aboriginal Art Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (1 November 2017)
Goss, Ian, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Hall, Roslyn, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (9 September 2017)
Healy, Jacqueline, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (November 2017)
Hogarth, Stephen, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Holland, Narelle, Papulankutja Artists, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (9 September 2017)
Indigenous Art Centre Alliance, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
196
Indigenous Art Code Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Inkamala, Beth, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (14 September 2017)
Iseger-Pilkington, Glenn, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
Jacob, Roanna, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (1 November 2017)
Jacobsen, Dr Damien, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
Ku Arts Ananguku Arts & Culture Aboriginal Corporation, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (1 November 2017)
Lankin, Regina, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (14 September 2017)
Lee, Leeton, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (13 October 2017)
197
Loogatha, Bereline, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (1 November 2017)
Maningrida Arts and Culture, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (November 2017)
Mara, Margaret, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
Martumilli Artists, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
McGregor, Carol, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (30 September 2017)
Mitting, Jeff, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (1 October 2017)
Moar, Myvanwy, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Muffler, Betty, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (9 September 2017)
198
Muriata, Abe, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
Name withheld, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
National Association for the Visual Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated).
Newton, Maureen, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (31 October 2017)
Newton, Trisha, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (31 October 2017)
Ninti One, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Nona, Laurie, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
O’Halloran, Paul, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
199
Palngum Wurnangat Art Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (31 October 2017)
Parkin, Stephanie, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Purcell, Julie, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (2 November 2017)
Regional Arts Australia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Rist, Philip, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Robinson, Patricia, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (12 September 2017)
Ross, Margaret Kemarre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (9 September 2017)
Russo, Joann, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (1 November 2017)
200
Summers, Joyce, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (3 November 2017)
Taylor, Debbie, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (13 October 2017)
Taylor, Ignatius, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (8 September 2017)
Terri Janke and Company Pty Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Umi Arts, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (16 October 2017).
Warakurna Artists, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (8 September 2017)
Warmun Art Centre, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (14 June 2018)
Williams, Marjorie, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
201
Williams, Vicki, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (15 October 2017)
WW Souvenirs Gifts and Homewares Pty Ltd, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Young, Frank, Submission to the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
2017 Inquiry exhibits
Ah Kee, Vernon, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Beetson, Bianca, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Belfour, Jade, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Bell, Richard, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Coles, Alec, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
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Farmer, Miranda, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Farmer, Peter, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Gall, Andrew, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Gumbula, John Smith, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Hookey, Gordon, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Plunkett, Ian, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Stokes, Dennis, Video exhibit transcript for the inquiry into the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia (undated)
Transcripts of 2017 Inquiry public hearings
Commonwealth, Parliamentary Debates, House of Representatives 13 February 2019 (Madeline King).
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Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 2 May 2018
Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 11 April 2018
Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 10 April 2018
Commonwealth, Official Committee Hansard, House of Representatives Standing Committee on Indigenous Affairs, 13 February 2018
Commonwealth, Parliamentary Debates, Senate, 11 September 2017
Government and policy documents
Commonwealth, Creative Nation: Commonwealth Cultural Policy, October 1994 (Policy document, Heritage – Our Past Our Future, 1994)
Commonwealth, Inquiry into Australia’s Indigenous Art and Craft Sector (2007)
Commonwealth, Stopping the Rip-Offs, Intellectual Property Protection for Aboriginal and Torres Strait Islander Artists (October 1994)
Senate Standing Committee on Environment and Communications, Chapter 8 – Threats to the Indigenous Art Market (Completed inquiries and reports, 2004-2007)
Reports and papers
Anderson, Associate Professor Helen, Professor Ann O’Connell, Professor Ian Ramsay, Associate Professor Michelle Welsh and Hannah Withers, Defining and Profiling Phoenix Activity (Melbourne Law School and Monash Business School project, December 2014)
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Arewa, Olunfunmilay, Culture as property: intellectual property, local norms and global rights (Paper, 4 December 2007)
Davis, Michael, ‘Indigenous Peoples and Intellectual Property Rights’ (Research Paper 20, Social Policy Group, 1996-1997)
Fesl, Eve, Colonisation and Mabo (Paper, 1993)
Human Rights and Equal Opportunity Commission, Bringing Them Home: A Guide to the Findings of Recommendations of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Report, 1997)
Janke, Terri, Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions (2003)
Janke, Terri, True Tracks: Indigenous Cultural and Intellectual Property Principles for putting Self-Determination into practice (Doctor of Philosophy (by Compilation) of The Australian National University, 2019)
Janke, Terri and Maiko Sentina, Indigenous Knowledge: Issues for Protection and Management (March 2018)
Janke, Terri and Michael Frankel and Company, Our Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual Property Rights (Report, 1998)
Janke, Terri and Peter Dawson, New Tracks: Indigenous Knowledge and Cultural Expression and the Australian Intellectual Property System (Issues paper, 31 May 2012)
Oxenham, Darlene, Discussion paper: Aboriginal Terms of Reference (Centre for Aboriginal Studies, Curtin University, 1999)
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Online articles and web pages
Allam, Lorena, ‘Government Could Buy Aboriginal Flag Copyright to Settle Dispute, Lawyer Says’ The Guardian (12 June 2019)
Allam, Lorena, ‘Ken Wyatt Calls for Law Change to Protect Aboriginal Artists From Carpetbaggers’, The Guardian (27 January 2020)
Australian Competition and Consumer Commission, ‘About us’ (Web page, 2 October 2019)
Australian Competition and Consumer Commission, ‘Compliance and Enforcement Policy and Priorities’ (Web page 20 September 2019)
Australian Securities and Investments Commission, ‘Illegal Phoenix Activity’ (Web page, 5 February 2020)
Australian Competition and Consumer Commission, ‘Wholesaler withdraws ‘inauthentic’ Aboriginal rock art magnets from sale’ (5 October 2019)
Australian Government, Department of Foreign Affairs and Trade, ‘China-Australia Free Trade Agreement’ (Web page, 2015)
Australian Securities and Investments Commission, ‘ASIC action on illegal phoenix’ activity (Web page, 5 February 2020)
Bell, Richard, ‘Aboriginal Art – It’s a White Thing!’ (Web page, November 2002)
Bob Katter ‘Fake Indigenous Art Bill Boomerangs Back into Parliament’ (Media release, 11 September 2017)
Burt, Jemima, ‘Non-Indigenous business fails in bid to trademark Aboriginal bush medicine’ ABC News (25 January 2020)
Calla Wahlquist, ‘A year on, the key goal of Uluru statement remains elusive’ The Guardian (online, 26 May 2018)
Collins English Dictionary, definition of ‘authentic’ (10 February 2020)
Curtin University, ‘Indigenous Terms of Reference’ (undated)
Frizzell, Sara, ‘After 60 years, Inuit-Led Oganisation Takes Over Inuit Art Trademark From Feds’ CBC News (13 July 2017)
Gifts Mate, ‘Gifts Mate Souvenirs’ (Web page, 2 February 2020)
Gifts Mate, ‘Timber Range’ (Web page, 2 February 2020)
Harris, Rob, ‘Ken Wyatt launches Voice to Parliament Consultation’ The Sydney Morning Herald (30 October 2019)
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Hayes, Adam, ‘Voluntary liquidation’, Investopedia (Web page 13 September 2019)
Inuit Art Foundation, ‘About the Igloo Tag’ (Web page, undated)
Inuit Art Foundation, ‘Igloo Tag Policies’ (Web page, undated)
IP Australia, ‘Certification trade mark’ (Web page, 20 June 2018)
IP Australia, Geographical Indications (Web page, 30 January 2019)
Janke, Terri and Jean Kearney, ‘Rights to culture: Indigenous Cultural and Intellectual Property (ICIP), Copyright and Protocols’ (Web page, 1 November 2019)
Leigh, Andrew, ‘It’s time to crack down on phoenix activity in Australia’ The Canberra Times (24 October 2018)
Mundine, Djon, ‘Essays, No Ordinary Place: The Art of David Malangi’ (Web page, 11 September 2019)
Nassim Khadem, ‘Labor Wants to Name and Shame Dodgy Phoenix Directors’ ABC News (7 November 2018)
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National Indigenous Arts and Cultural Authority, ‘2020 National Summit’ (2 February 2020)
National Indigenous Arts and Cultural Authority, ‘What is NIACA?’ (2 February 2020)
National Indigenous Arts and Cultural Authority, ‘Working towards a National Indigenous Arts and Cultural Authority’ (2 February 2020)
NSW Government ‘Information standards’ (Web page, undated)
Referendum Council, ‘Discussion Paper’ (online, 26 October 2016)
The Bellagio Declaration, ‘Statement of the Bellagio Conference from the 1993 Rockefeller Conference on Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era’ (Web page, 1993)
Toi iho, ‘About Toi Iho’ (Web page, undated)
Toi iho, ‘People’ (Web page, undated)
World Intellectual Property Organisation, ‘Geographical Indications’ (Web page 12 January 2020)
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