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Standing Committee on Indigenous Affairs
Growing presence of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products and merchandise for sale across Australia

ANATOLITIS, Ms Esther, Executive Director, National Association of the Visual Arts

Committee met at 09:00

CHAIR ( Mrs Sudmalis ): I declare open this public meeting of the House of Representatives Standing Committee on Indigenous Affairs for the inquiry into the proliferation of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products. I would like to acknowledge the traditional custodians of this land and show my respect to their elders, past and present, and to all Indigenous peoples.

I welcome Ms Anatolitis, from the National Association of the Visual Arts. As these proceedings are public, they are being broadcast and recorded by Hansard. If you wish to have evidence heard in private, please let the committee know and we will consider your request. Although the committee does not require you to give evidence under oath, I wish to advise you that this hearing is a formal proceeding of the parliament. Giving false or misleading evidence is a serious matter and may be regarded as contempt of parliament. If you object to answering a question, please state the reason for your objection and the committee will consider the matter. I now invite you to make to make an opening statement.

Ms Anatolitis : It is really fantastic that this is happening, and I want to thank everyone for this opportunity. I am proud to be here on Gadigal country and I acknowledge the elders, past, present and emerging of the Gadigal people of the Eora nation. I want to thank the parliament for holding this inquiry and recognise that there are many, many other submissions and many submissions from Indigenous artists and Aboriginal and Torres Strait Islander organisations.

NAVA is the National Association for the Visual Arts. We protect and promote the visual arts and craft, media art and design sector. We have several thousand members all over Australia. The sector is quite large. There would be possibly 20,000 practising artists and others across the nation. NAVA, in its three-decade history has had quite a successful track record of collaborative advocacy for policy change. We were one of the founders of what is now the Indigenous Art Code. Through the NAVA code of practice, we have protocols on Aboriginal and Torres Strait Islander art. We do a range of things that benchmark and set standards, and we do our best to enforce standards about the way that artists present work, make work and can earn a living from their work. That is the focus of NAVA's work.

The way Aboriginal and Torres Strait Islander artists are recognised or not recognised for their work is, as I see it, one of Australia's national shames. The Arts Law Centre of Australia estimates that about 80 per cent of the work that is available for sale in Australia that claims to be Aboriginal art is in fact not and is not at all authentic—and that is just shocking. You would have heard from others and read from the various submissions about how this undermines the telling of the stories which are the foundation and history of our country, particularly when we consider that that is a relationship that is not reconciled with our First Nations and recognising a sovereignty that was never ceded.

From our point of view, there are a number of things that need to happen. First of all, any approach to making sure that Aboriginal and Torres Strait Islander art is recognised needs to be self-determined and driven by Aboriginal and Torres Strait Islander artists. That self-determination is extremely important, through not just policy and protocol but also standards that are enforceable. That would include things like protected words—that is, the way in which art is described. We talk about 'Aboriginal style' and 'made in Australia' and those various words that are used when work is for sale. There need to be consequences for retailers and others, there need to be measures to support career development and career life cycle and there need to be supply chain protections. That is something that we are speaking with the Indigenous Art Code about at the moment—how we illustrate what the supply chain is and identify different stages so that they can be protected. And, ultimately, we need to recognise cultural and intangible heritage when we talk about copyright. So there is a range of areas in which protections need to be introduced.

CHAIR: Thank you very much. I have a number of questions but I will first pass to my colleagues.

Ms CLAYDON: Thank you very much for your opening statement. I am interested in two issues that you raised towards the end of your opening statement. The first was your conversations with the Indigenous Art Code around supply chains. Could you tease out what you see to be the current problems there that you are trying to find solutions for? There was also this issue around the inadequacies of existing copyright law, in particular. The incapacity of existing laws to recognise the cultural and intellectual property rights has been raised in lots of submissions and by witnesses to date. I would be interested to know whether NAVA has a specific view about how those laws should be changed.

Ms Anatolitis : Sure. First of all, it's great that Gabrielle, from the Indigenous Art Code, and the Copyright Agency will be speaking to you later. They will have far more specific and expert approaches to this. The supply chain is something that we've just started to have a good conversation about to think about the resources that we can develop for artists, sellers and buyers. It is about asking questions like, 'Where did that work come from?' when you see it for sale. How do you know that it's authentic? Under what conditions was the work made? Was the artist paid a fee? Is it on commission? Who is getting that commission? Was the work made in an Aboriginal art centre? Was it facilitated by others working together? Was it made on the understanding that it was to be presented for sale under the specific conditions in which it is currently for sale? Did the artist have an understanding of English or whatever language the contract was drawn up in in order to read the contract? For buyers, what questions are they asking about the authenticity of a work and the conditions in which it was made?

So there are questions around what happens at each step, but there are also questions about how people are finding out what they need to know. What information is available, what educational resources are available to skill up people about the questions that they need to ask as artists negotiating a contract—whether it's written or otherwise—for sale, as buyers or, ultimately, retailers or resellers.

Ms CLAYDON: Where would you that kind of auditing process of the supply chain take place? Who would do that and how would that be administered?

Ms Anatolitis : First of all, I would say that it's important that, for any such audits or checks like that, there not be extra burden placed on the artist themselves. So that we don't have a situation of someone needing to come in at every one of those stages, there need to be enforceable regulations, Whether that is through the Indigenous Art Code working with governments, the Australia Council, retailers, the competition commission and different institutions that are authorities at each given point, there are a number of different points and different instruments that would apply.

Ms CLAYDON: In your submission you argued for further resourcing of the Indigenous Art Code in order to educate both buyers and sellers and, in addition to best practice standards, you referred to the creation of an ethical buyers app. Could you tease that out a little more? Did you have in mind some successes elsewhere—for example, ethical shopping guides which we have apps for grocery shopping and other sorts of shopping? I am interested because we heard evidence that even if people are members of the Indigenous Art Code and are pursuing ethical practices for the sale of items, it is completely unknown to the consumer that that is the case. There appears to be no rigorous kind of identification of people who are members or registered and the benefits of that are a little opaque. I shouldn't be leading you in this way, but what are your thoughts on the purpose of that app?

Ms Anatolitis : Can I just say first of all that I am astounded and impressed that the Indigenous Art Code is basically a one-lady operation. I don't know how Gabrielle does what she does, but she is a powerhouse and an inspiration. I have had the good fortune of spending some time with her recently to pull out the whiteboard and map out what could be imagined for that supply chain—would it be resources or would it be an app? The Indigenous Art Code needs to be funded really ambitiously so that everything that you've just mentioned can come to fruition.

We need education at the point of sale. If we compare what tourists see as their first impression of what they thing is Aboriginal and Torres Strait Islander art to, for example, what I hope increasingly Australians are learning in school and in other places, the difference could not be more stark. The tools for someone making a decision to see work, enjoy work and buy work need to be ready to hand. In our contemporary space, an app—which is basically attached to our bodies with our phones—would be a really practical and convenient way of doing that. Something like that, in that form of technology, whether it is on a mobile device or a website, allows you to choose your own adventure and say, 'I'm approaching this in this way,' and I can click this and select that and say, 'I'm in this place and I'm seeing this kind of work; I think it has come from this kind of place,' and select those options and be given an understanding of what has happened until the point at which that work is for sale to you. You can also look at the questions that you could and should be asking. I think that would be a really excellent format for that information to be in, but of course it can't be the only thing. That is for the end user—the person making the decision—and every one of those decision-making points needs to enforceable by regulation and law.

Ms CLAYDON: Thank you very much for your evidence this morning. I will now pass to my colleagues.

CHAIR: Firstly, you said that you were working on collaborative policy change, and your protocols. Given that I actually do a bit of dabbling in painting myself I know that there are generally some safety issues that NAVA is very good at showing about the materials being used and how they should be being used. Is that going back to the art centres in remote Australia as well, or is that dependent on the art facilitators to communicate that message?

Ms Anatolitis : I see what you mean. The NAVA Code of Practice covers all aspects of professional practice in the arts. So, yes, there are tools and resources about things like safety, but there is also a whole chapter on Aboriginal and Torres Strait Islander art and protocols. There are sections on gallery practice, on buying and selling, and on commissioning. So the code of practice encompasses every single aspect of practice. It is made available to members and to galleries. There are government departments and funding bodies who will refer to chapters in the code of practice to advise artists and people putting projects together on best practice, and the chapter that touches on our issue today was put together with key Aboriginal and Torres Strait Islander artists and organisations.

CHAIR: I'm carrying on from Sharon's question about the supply chain. When you are talking about funding and resourcing for the Indigenous Art Code, the point of sale is probably the one where there is the greatest investment rather than putting that pressure on the artists or the art centres themselves—

Ms Anatolitis : Absolutely.

CHAIR: How would you see that it could be introduced at point of sale so that there was some sort of financial movement going towards Indigenous Art Code?

Ms Anatolitis : Do you mean: how could there be something at the point of sale that would help derive an income for Indigenous Art Code?


Ms Anatolitis : There are a range of fees and commissions and options, and I'm sure Indigenous Art Code will have more to say about this. At the point of sale there needs to be real clarity about what a person is buying. This is apart from the questions of how the artist has come to make that work and the conditions in which it was made. We have, for example, standards around certain kinds of materials, such as wool and the Woolmark, and in other aspects of retailing, such as food labelling and country of origin. There are a range of standards about those that are commonplace in Australian now and widely recognised. I think we need to have a look at: what are the key words, terms and labels to use? Obviously, Indigenous Art Code have their logo and those clear points that are used at point of sale. But I'm also interested in a range of protected words. For example, if you work in architecture, the word 'architecture' is a protected word in Australian legislation; if you're not an architect, you cannot use it professionally—you can't have a cafe called 'The Architect's Cafe'; you can't have a design studio called 'Architectural Design'. That is a word that is protected by law in a range of different applications. I think we need to hear from Aboriginal and Torres Strait Islander artists and organisations about what the appropriate protected words are and how work should be described—whether it's at a gallery or particularly at shops focused on the tourist market—and how that language can be used in a very clear and consistent way.

CHAIR: Have you, in your discussions with Indigenous Art Code, established a possible range of such language, of such words, coming from the Indigenous artists themselves yet?

Ms Anatolitis : I imagine that is a conversation that Indigenous Art Code are having and will tell you much more about, but, as such, no, and I should know, but I come to my role having been here for a few months. Recognising that there are conversations that have gone on for many, many decades before me, I'd be surprised if that hadn't come up. But Gabrielle and Indigenous Art Code will be able to be far more specific about that.

CHAIR: You were talking about ways to increase Indigenous recognition and how that needed to be self-determined. That's a fabulous comment, but did you imagine a mechanism to do that?

Ms Anatolitis : I think there needs to be an appropriate advisory committee for whatever protocols and legal instruments are established as a result of this inquiry. That needs to be driven and overseen and regularly reviewed by Aboriginal and Torres Strait Islander artists and also by expert organisations working in that field. It just goes to any aspect. Any and every aspect of Indigenous culture needs to be self-determined. It can't be a bunch of whitefellas sitting back saying, 'We know what's best.' It absolutely must come from those communities and those artists and then us listening and responding with all of the regulatory and legal apparatus that we have to support and protect that culture.

CHAIR: It would be very interesting for your organisation to come back with suggestions of the mechanics of how they think that should be started in a conversation so that it can actually get underway, because it's a very good descriptor.

Ms Anatolitis : Absolutely. I can feel the mind meld that Gabrielle and I are having at the moment on exactly that! She's just sitting behind me.

CHAIR: Subsequent to that, you said that there's a belief that about 80 per cent of Indigenous art currently on sale is actually not Indigenous art. Can you explain how that estimate has been derived?

Ms Anatolitis : The Arts Law Centre of Australia will be able to tell you more about that because that is their figure. I know that Gabrielle from Indigenous Art Code visits many, many places, so there would be formal survey instruments as well as direct observation. That is work for sale, so it would include work in places of the sale of art as well as places that are retailing it primarily to tourists.

CHAIR: Just for my final pack-up—and I think this probably relates to one of my earlier questions—who is going to enforce the enforceable standards?

Ms Anatolitis : Yes, well, this is where we need you and your colleagues to be bold and ambitious about this. There will be different instruments at different levels of government. There are places where it's about retail and competition law. There are places where it's about a condition of the funding of certain places to make certain that they are working with and dealing with Aboriginal and Torres Strait Islander artists in appropriate and respectful ways, so there will be galleries and others who are in receipt of either funding from government or other kinds of government subsidies. Then there is copyright. There's the whole range of laws, and this goes to your question about really examining those and looking at that point of protection in a number of different ways. I don't envisage that there will be only one way or one instrument.

CHAIR: This is just a tail end to that. In order for any form of enforcement to take place at any level, there has to be some differentiating structure, be it a label or whatever, to enable the enforcer at any level to determine that this is authentic and this is not. In your discussions with Indigenous Art Code, and probably as a result of all the submissions that we end up with here, would you envisage that there would be such a differentiating factor for Indigenous art and craft?

Ms Anatolitis : Yes, absolutely.

CHAIR: Thank you very much.

Ms Anatolitis : Thank you.

Mr SNOWDON: Good morning. I'm interested in a number of things that you've touched upon in your submission. You make observations about the need to amend the copyright law, but you don't make any recommendations on what you think those changes should be. Do you have any specific ideas of how copyright law should be amended to accommodate the concerns you've expressed?

Ms Anatolitis : It's a complex one because copyright law applies at the point of the finished work. Obviously, an idea can't be copyrighted. So much of the richness of the work that we're talking about is about stories, song lines and collaborative practice that have gone into the making of the work. Again, the Copyright Agency will be presenting this afternoon and will have, no doubt, all sorts of fantastic ideas about how to make those instruments a little more sophisticated or perhaps how to apply specific aspects to what is particularly complex here, but it's something that really needs to be pursued, we think: how artists' rights are protected and recognised and also what is distinct about First Nations art here and around the world.

Mr SNOWDON: You refer in your submission to Indigenous cultural intellectual property not being protected. Do you want to expand on that a bit for us, please?

Ms Anatolitis : Yes. For example, one of the limitations with copyright law when we think about its application to images and text is that it expires after a certain time, that currently being 70 years after the death of the artist. Obviously there are works in the natural environment, on rock and so on, in Australia which are older than we can possibly imagine, and then it is not possible for the works derived from that or depicting those kinds of images to be copyrighted under Australian law today. So Indigenous cultural intellectual property is about developing protocols for permissions to work with key images, key stories and so on. These are questions that are sensitive and very specific to particular groups. Again, there will be others who speak today who will be better placed and more expert to speak about that.

Mr SNOWDON: Another element which I'm interested in is the capacity for individuals to assign their copyright. We heard over recent months about the issue to do with a great Hermannsburg artist, Albert Namatjira, and what happened to his copyright when it went to the state and the state sold it to someone for a pittance. The family just got it back. Have you any other instances where people have assigned their copyright unbeknownst to them? I'm talking about living persons here.

Ms Anatolitis : I'd have to take that on notice in terms of specific names, but this is something that we at NAVA deal with in terms of disputes. One of the things we do is that artists and members will get in touch with us with the specific problems and disputes. I can think of a number that involve non-Indigenous artists as well as Indigenous artists, because the question there is about the conditions in which an artist is contracted to do something in particular. Sometimes, for example—and this certainly applies to Indigenous artists—the conditions in which a contract is entered into are not necessarily clear. That might be because of language. It might be because the work has begun by the time a contract is offered and signed. And then, implicitly, copyright may have been assigned in the way that the work is then understood to be used, repurposed, reproduced and so on. This is very much a live issue, but I don't have numbers in front of me at the moment. I can certainly have a look at that for you.

Mr SNOWDON: If you could provide us with some specific examples, that would be useful. But I just make the observation that it's therefore possible for someone to fraudulently obtain a copyright and for them to use that copyright to print materials and then sell them as authentic Aboriginal art, which they will be, because the copyright has been assigned to them.

Ms Anatolitis : That is absolutely right, and that does happen. There is also the situation, of course, where work was never authentic in the first place and then was constantly reproduced. But what you've described does happen.

Mr SNOWDON: Do you have any examples of that happening?

Ms Anatolitis : I would have to take that on notice and get in touch with you about that, but I can assure you that that does happen.

Mr SNOWDON: We would very much appreciate it if you could take that on notice and provide us with any examples. Where I live, I see all sorts of hucksters around the joint who can exploit and otherwise take advantage of people, and I'm quite concerned that this is an issue which the individuals themselves are not properly aware of.

Ms Anatolitis : That's exactly right. That's exactly right, and that really goes to the heart of this inquiry, because it's not just about being focused on the regulations and the point of sale but also about the conditions in which Aboriginal and Torres Strait Islander artists are making work and making art, how it is explained and how it is understood, what will then happen to that work, and who is profiting and under what circumstances.

Mr SNOWDON: But, ultimately, is it not true that you can't save people from themselves? You might have Desart, for example, or ANKAAA, in the Top End, going out, proselytising, talking to people, working with art centres and working with artists, but, if an artist is, for example, alcohol dependent, makes a piece of art in Alice Springs and sells it in the mall for 20 bucks, whereas, if you sold it in the art centre, it might be sold for $400 or $500, they have no protection.

Ms Anatolitis : That's right. That's why, as I started out, I said that this is just one of our great national shames when it comes to the treatment or the exploitation of the goodwill, the stories and the work of Aboriginal and Torres Strait Islander artists and people in their communities. The circumstances in which a work was made are extremely pertinent, but the circumstances in which people live and communities thrive or otherwise are far more pertinent. It is only through strong and thriving First Nations communities across Australia that we will have a strong and thriving Australian culture.

Mr SNOWDON: But, from your observation, do the peak organisations have sufficient resources—

Ms Anatolitis : Absolutely not.

Mr SNOWDON: to do the advocacy that's required to educate people about their rights?

Ms Anatolitis : No, absolutely not. In fact, there's another inquiry that many of us are contributing to at the moment, which closed on Friday, which is about the way in which organisations of a charitable nature, non-profit organisations, are having their right, their duty and their public and civic obligation to be good advocates questioned by other laws that are before your colleagues. This again is one of the really, really crucial aspects of the expert and the civic contribution that all non-profit organisations and experts make in Australia. But, in particular, organisations such as the ones you mentioned and Indigenous Art Code absolutely lack the resources that they need to be good advocates but also to educate and to enforce those protocols.

Mr SNOWDON: Finally, do you have any examples of legal cases which go to these issues where there's been an Aboriginal plaintiff around their copyright?

Ms Anatolitis : I'll let Indigenous Art Code speak to that as well.

Mr SNOWDON: Thank you.

Ms Anatolitis : Thank you.

CHAIR: I've just got one last question before we leave. In one of the previous submissions there was a suggestion that the intellectual property rights in law at this time are not appropriate for Indigenous cultural protection and that, rather than tinkering around with the existing law, there perhaps should be a different paradigm, and that might also be a possibility with copyright as well. Would that be part of your discussions of the future, rather than trying to alter what exists, because it suits a particular cultural pattern—to look at a different way that has legal substantiation? That certainly seemed like a good idea the other day. Does that make sense from your point of view?

Ms Anatolitis : I think that makes a lot of sense and goes back to what I was saying about self-determination and listening and looking at what the appropriate instruments that we have in Australian law at the moment are, recognising again, of course, that we have imposed Australian law over the past few hundred years on top of relationships, protocols and cultural protocols that have been existing for more time than we can possibly imagine. So, absolutely, we need to understand what is most appropriate. It may well be that we have a different way of pursuing that, as you said, and it may also be that in learning from that we enrich existing Australian law by making it that little bit more sophisticated. So I think that's something that must be pursued.

CHAIR: Thank you for your attendance at today's hearing. If you've been asked to provide any additional information or if there is anything else you would like to provide, please forward it to the secretariat by 20 March. You'll be sent a copy of the transcript of your attendance, to which you may suggest corrections.

Ms Anatolitis : Thank you.