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Thursday, 4 December 2003
Page: 19185

Senator RIDGEWAY (1:19 PM) —The purpose of the Designs Bill 2003 is to repeal the Designs Act 1906. It obviously needs to be redrafted, given that it is almost 100 years old and has not been amended in that time. Essentially, this is about redrafting the act to provide a system of designs registration that includes a reduced period of registration, stricter eligibility and infringement tests, more streamlined registration processes and new enforcement procedures. The essential nature of what is protected under the Designs Act has remained unchanged, as I have mentioned, for a long period. There has been extensive community consultation and review of proposals for a new scheme over recent decades and the bill gives effect to the recommendations from the 1995 Australian Law Reform Commission report into the Designs Act.

While the Democrats agree that the bill in itself is non-controversial, it could be argued that an opportunity has been missed to amend the act to improve the level of protection afforded to Indigenous designs. It is in that context that I would like to make further remarks. The Australian Law Reform Commission in its 1995 report noted that traditional Aboriginal and Torres Strait Islander designs are a particular area of importance. The report noted that they raise special issues that cannot be adequately addressed through general designs law and that they should not be considered in isolation from other issues arising out of Aboriginal art, culture and heritage.

The question of protection of Indigenous intellectual property is an important one, and I am sure many people here would agree. When people think about Indigenous intellectual property, they usually think about artwork. Certainly, an effort needs to be made to ensure that Indigenous artists charged with the responsibility of representing their people's dreaming are extended the proper protection under intellectual property law.

Indigenous artwork, song and dance were showcased magnificently during the Olympics. It won Australia international acclaim for the unique beauty and spirituality of the oldest living culture in the world. And it is only right, I think, that Aboriginal and Torres Strait Islander people should now feel that their cultures will be afforded the respect, protection and recognition that they deserve. However, the protection of Indigenous intellectual property goes further than this. Indigenous culture and heritage also includes songs, stories, language, dance, artwork and traditional practices. It also includes inheritances from the past and their relationship to the land and water, such as human remains, the natural features of the landscape and biological knowledge.

As I mentioned during the debate on the Plant Breeder's Rights Amendment Bill last year, there is growing pressure to access and exploit Indigenous knowledge and resources for commercial purposes, and that has serious implications for the future integrity of Indigenous cultures, particularly the ability of those cultures to survive the onslaught of global commercial pressures. We now find ourselves in a totally unacceptable situation where Indigenous traditional knowledge claims in this country remain unprotected and, to a significant extent, unenforceable. There is not any legal recognition of the collective and individual nature of Indigenous intellectual property, the ongoing permanent nature of the laws and customs, the often secret nature of how that information is held and the right of Indigenous people, through their custodians, to share in some of the benefits, despite the findings of the High Court in native title where it talks about recognition of the interwoven relationship between Indigenous property rights and cultural law and practice.

In the report Our culture: our future produced by Terri Janke, she made the point that one of the most important challenges in the issue of protecting Indigenous cultural heritage is the protection of Indigenous designs. The Designs Act, as it currently stands, poses the following challenges for Indigenous people: (1) there is limited duration of protection, (2) the cost for Indigenous people to be able to register their designs, (3) the difficulty in satisfying `original' or `new' requirements in the registration test and (4) authorship is applied to one or two people. The bills before us go some way towards addressing these issues, though fundamental conceptual differences remain such as the need to prove the `novelty' or `distinctiveness' of a design that is thousands of years old and owned communally by a group of people as opposed to one designer. In this sense, an important opportunity has been lost in the development and introduction of the bill and to consider these questions in terms of their application to Indigenous people.

The Democrats believe that the consideration of the broader question of the protection of Indigenous intellectual property needs to take into account Australia's international obligations to recognise, protect and maintain Indigenous traditional knowledge, innovations and practices and the extent to which Australia's existing laws fulfil these obligations. Where there are deficiencies in our current laws, the government must address the question of how best to address these deficiencies in order to fulfil our international obligations to protect the intellectual property, knowledge and practices of our Indigenous people.

While the Democrats view these issues as vitally important, we will not be holding up the passage of the bill on this basis. We understand that these amendments to the Designs Act are long overdue and, as the Australian Law Reform Commission report noted, these issues do need to be addressed in the broader context of Indigenous intellectual property protection. However, we also feel that it is important that the point be noted. To that end, I move a second reading amendment on sheet 3252 in the name of the Democrats:

At the end of the motion, add:

“but the Senate:

(i) encourages the Government to note the comments of the Australian Law Reform Commission in regard to the need for protection of Indigenous designs;

(ii) encourages the Government to commit to the development and introduction of such a scheme of protection; and

(iii) calls on the Government to introduce already promised legislation relating to the protection of Indigenous intellectual property, in particular the issue of communal moral rights”.