Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Standing Committee on Indigenous Affairs
06/03/2018
Growing presence of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products and merchandise for sale across Australia

AYRES, Ms Robyn, Chief Executive Officer, Arts Law Centre of Australia

STELLIOS, Mr Kon, Partner, Allens Linklaters

[12:00]

CHAIR: Welcome. Do you have any comments to make on the capacity in which you appear?

Mr Stellios : I'm a partner at Allens law firm, and I'm here representing Arts Law and the Indigenous Art Code.

CHAIR: 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 either or both of you to present your opening statement.

Ms Ayres : We're both going to make a statement. I will go first. The Arts Law Centre of Australia welcomes this inquiry, and I thank you for the opportunity to give evidence here today. Arts Law is a not-for-profit national community legal centre for the arts—we're the only one in Australia—and we have been actively protecting the rights of artists since 1983. We've operated a dedicated service for Aboriginal and Torres Strait Islander artists, called Artists in the Black, for 13 years. In that time, we've consulted with and advised Aboriginal and Torres Strait Islander artists and their communities right across Australia. Last year alone, 2017, Arts Law provided legal advice or assistance to Aboriginal and Torres Strait Islander artists and arts organisations 519 times. We also delivered 22 outreach education sessions, which were attended by 233 artists and other arts workers.

Given the discussions around licensing, I thought it would be useful for you to know that Arts Law also works with artists and arts organisations to achieve best practice in licensing arrangements. We have developed a licensing toolkit for arts centres, which is available to artists to help achieve this. I must stress, however, that success in this area doesn't solve the larger problem of inauthentic art. Throughout the years of providing the Artists in the Black service, Indigenous artists have consistently voiced their concerns to us about the proliferation of inauthentic Aboriginal and Torres Strait Islander art and the associated merchandise available for sale in Australia. To their frustration, there's no legal framework with which these artists and communities can take action when they feel they've been wronged.

We at Arts Law have long advocated for positive change in this area. In our view, it's entirely appropriate for Australia's First Peoples to expect that their nation's legal system should provide adequate safeguards for the protection of what the United Nations Declaration on the Rights of Indigenous Peoples defines as their cultural, intellectual, religious and spiritual property. We're in the unique position of having consulted with and advised Aboriginal and Torres Strait Islander artists and communities right across Australia, and have witnessed the effects of this proliferation at every stage of the production line, from artists in remote communities to galleries and retail shops in the cities.

Whilst we recognise that there are various suggestions as to how this change may take form, we've concluded that the best, most cost-effective way for legal change to occur would be through making changes to the Australian Consumer Law, as we outline in our submission to this inquiry. Not only would this be relatively easy in comparison to other options available, but it would also have the benefit of being enforceable by the ACCC. This kind of change would not be symbolic; there would be immediate and practical benefits for consumers and Indigenous artists and their communities. By enabling Aboriginal and Torres Strait Islander artists to take control of their culture and traditions, the benefits associated will flow on to their families and communities for many years to come. I'm happy to answer any questions that you may have.

Mr Stellios : I just want to add a couple of brief comments on the proposal by the Arts Law Centre that the Australian Consumer Law be amended to prohibit the sale of artwork which includes an Indigenous cultural expression unless it is handcrafted by an Aboriginal or Torres Strait Islander person or is a licensed reproduction of a work created by such a person.

The first issue I want to address is why we consider that the issue at hand is appropriately addressed in the Australian Consumer Law. As I'm sure you're aware, the Australian Consumer Law prohibits misleading or deceptive conduct and also the making of false representations. It's not controversial that, where a trader says something concerning the authenticity of a product which is false, it would be a breach of the Australian Consumer Law, as it should be. Those comments could be made by the trader or salesperson working for the trader or it could be in representations which appear in advertising material which appears around the store. There is, however, a grey area, and that is where the trader does not say anything at all about the authenticity of the artwork. Whether the trader has breached the Australian Consumer Law in that situation requires the courts to look at the context in which the sale took place to determine whether the impression that's been created led the consumer to a misapprehension as to the authenticity of the product itself. We consider that the law should be made clear that conduct in that grey area should be prohibited. We say this because selling an article which contains Indigenous cultural expressions that was not created by or with the approval of the relevant artist or community is, by and large, inherently misleading and deceptive, as is selling an article which is designed to appear as though it contains Indigenous cultural expressions. The reason we say that the conduct is inherently misleading or deceptive is probably best tested by considering why the trader is selling it in the first place. The value to the trader is that consumers will, by and large, want to buy the product because they believe or perceive that the product does contain authentic Indigenous cultural expressions. That is why we say it's inherently misleading or deceptive and it sits, appropriately, in the Australian Consumer Law.

The second issue I want to address is what we perceive to be the advantages of putting the prohibition in the Australian Consumer Law. We think there are three advantages. The first one is a point that Robyn raised, which is that it automatically brings with it the power of the Australian Competition and Consumer Commission to enforce the prohibition. While there is still scope for private enforcement action, there remains a role for a regulatory body to enforce the prohibition. We think that's important because of the difficulties associated with relying on private enforcement action in this space. It's probably worth adding as well that the ACCC—and I think this is a generally accepted proposition—is an effective enforcement body, and it also has familiarity with the issues that appear in this space having enforced the misleading or deceptive conduct provisions to date. The second advantage is that the Australian Consumer Law already contains within it a broad set of penalties and remedies which the court can order when there's a breach of the prohibitions. We think that the penalties and remedies which appear in the Australian Consumer Law are appropriate because they seek to deter the continued sale of inauthentic products. We also say that incorporating the prohibitions in the Australian Consumer Law avoids the need to have further legislation which merely seeks to duplicate the provisions that appear in the Australian Consumer Law in any event. The third advantage is that we think it's probably the most cost-effective option when compared with the paradigm of alternative regimes: sui generis legislation, a certification labelling regime or even relying on the existing misleading or deceptive conduct provisions in the ACL.

One thing I want to highlight in this, in terms of why we think it leads to the least cost, is that the way we envisage the prohibition working is that traders at all levels of the supply chain would be required to sell original artwork or ensure that the product they are selling is licensed. Traders can comply with that prohibition by producing evidence as to the product's authenticity. What we had in mind here was that the retailer or the wholesaler would essentially receive a document from a supplier demonstrating the product's authenticity. The document would protect the trader even if, for some reason which is unknown to the trader, the product wasn't in fact authentic. The form of the document would be specified in the regulations, and it would take a form which would be arrived at in consultation with the industry, Indigenous artists and the ACCC. I'm happy to take any questions or expand on any of those issues.

Ms CLAYDON: Thank you very much for your evidence.

CHAIR: I appreciate what you've put forward.

Mr SNOWDON: I'm just checking something. We had evidence from the ACCC last week that, out of 250,000 complaints, they'd only had seven relating to inauthentic Aboriginal art. Do you reckon there's a mismatch here? What's going on?

Ms Ayres : We get lots of complaints to us, and I'm sure the code will say the same. It may well be that the people who are complaining—the artists, the communities and even consumers—don't understand how the ACCC works and don't think that it's going to achieve any outcome for them if they approach it. They may just not have the wherewithal to make a complaint to the ACCC. But I've been doing this job for 15 years, and Artists in the Black started 13 years ago, and it's been a constant issue that's been raised with the Arts Law Centre and through the Artists in the Black service about the prevalence or, I suppose, the lack of protection of Indigenous cultural and intellectual property more broadly. Then there's this section of, especially, the souvenir market, the tourist product, which is probably the tip of the iceberg in terms of looking for broader protection. But this is absolutely abhorrent to the artists and the communities that we're working with. It's a constant complaint to us.

Mr SNOWDON: I'm not making a judgement about any of that. I don't doubt it at all.

Mr Stellios : I just have two propositions in relation to that. The first one is that the commission receiving complaints depends on the consumers coming forward. That obviously depends on the consumers realising that something's inauthentic when they thought it was authentic. I wouldn't be surprised if a lot of the consumers in this space are tourists who ultimately left the country. The second proposition is that complaints can come not just from consumers but also from the suppliers or, in this case, the artists. It also depends on them being aware that their particular artwork is being ripped off, so to speak, and then coming forward and complaining to the commission about it. I'm not sure you can be satisfied that both sides of the supply chain are aware of what's going on.

Mr SNOWDON: I will just go to the bottom of page 3 and the beginning of page 4 of your submission, in which you refer to the United Nations Declaration on the Rights of Indigenous Peoples and our obligations under that charter. Can you just elaborate for us on what you think our obligations are and how they should be met in the context of unauthorised art.

Ms Ayres : The declaration sets out, in article 31, what the rights are. In particular, it says that governments should take effective measures to recognise and protect Indigenous people's right 'to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions'. It's also their intellectual property over those cultural traditions, knowledge and cultural expressions. What we have in Australia is a huge gap, I suppose, in the level of protection that is provided in relation to what some people might call article 31 rights, except that they're not rights because we don't have them enshrined in domestic legislation. We do have copyright laws, which provide a level of protection for one aspect of Indigenous cultural and intellectual property rights, but there's a whole lot of other Indigenous cultural and intellectual property that isn't protected. The Arts Law Centre has advocated for many years that what we need is a sui generis piece of legislation which does provide that additional layer of protection for Indigenous cultural and intellectual property, which we don't have.

Mr SNOWDON: So that'd be a specific piece of legislation, outside of the Trade Practices Act, the ACCC and all of those other bits of the legislation?

Ms Ayres : Yes. That would cover all those areas of Indigenous culture and intellectual property, not just this much smaller area that we are talking about in relation to inauthentic arts and crafts.

Mr SNOWDON: We have heard this morning about rock art, for example. We know its provenance, but it's not protected by copyright. So the cultural protections which you argue we should have don't exist for that, and that's art. So would you like to elaborate on what this legislation might look like.

Ms Ayres : That's a pretty tough question. There are some examples internationally. I know that in Victoria they have made an attempt through the Victorian Heritage Act to provide some form of protection. Personally, I don't think it's terribly effective, but time will tell. The World Intellectual Property Organization has an intergovernmental committee which is trying to develop through treaties protection around Indigenous culture and intellectual property. I'm not saying it's an easy task, but it would look at setting out what the rights are and setting out who owns the rights and, if people want to use the rights, what that would look like and then, if people use them without consent, what the consequence would be. So it is really about working through what the issues are and then coming up with a whole lot of definitions around how to make such a piece of legislation work. I'm not a drafter, but we have made submissions to government about this previously and we could provide some ideas. But I certainly think it would need a much more comprehensive approach than anything Arts Law would be able to come up with through our fairly minimal resources.

Mr SNOWDON: Since you've already made submissions to government about this, if you would like to make those available to us that might be useful.

Ms Ayres : Sure.

Mr SNOWDON: Thank you. Can I just ask you another question about making the Indigenous Art Code mandatory. How would you perceive that as working?

Mr Stellios : There are some tricky issues around how to make it mandatory and bring that about. That may well require legislation itself which would probably need to sit in the Competition and Consumer Act. As to whether making the Indigenous Art Code mandatory would fix the problem, that's probably something you can address in the next session. But my own view is that it's not, at the moment, aimed at that. It's aimed at addressing the relationship between dealers and artists. It's not dealing with the situation in terms of what is happening with inauthentic artwork being sold by retailers. So I'm not sure it will necessarily fix that problem.

Mr SNOWDON: So what's the relationship between the two?

Ms Ayres : Sorry?

Mr SNOWDON: What is the relationship with inauthentic art that is not a copyrighted and not protected by the code? How do you actually discriminate if the code is not going to be the point of discrimination?

Ms Ayres : My understanding is that when the code was set up it wasn't really looking at this issue that we are looking at here at this inquiry. It was really looking at, as I understood it, the fine art market and some of the behaviour that was happening in that market. I am not really the person to talk to about that. Gabrielle Sullivan is the person to talk to about that.

Mr SNOWDON: Well, Gabrielle is in a lot of trouble, I reckon! She's got to answer for a lot of sins!

Ms Ayres : I was around when the code was being established and we did make submissions to the Australia Council when they were developing what the code would look like. Our view was that it should be mandatory because that way everybody who was selling Indigenous art would have to go through a process of signing up to and complying with the code. But one of the problems with that was it tended to mean it was the lowest common denominator, that it wouldn't be setting a standard of best practice. I think what the code has decided, given that the government had no appetite for making the code mandatory, is that it would try and make it a best practice code and increase the standard and require dealers to meet the standard in order to comply with the code. We've been trying to support the code in the work that they're doing in that regard.

Mr SNOWDON: I want to go to one other matter. You talked about going around and 80 per cent of the items identified were not authentic. That's horrific, but—and I know this is a left-field question—are you aware of what the relationship is between the sale of these inauthentic art products and our trading agreements with other countries? We've got bilateral trade agreements which, presumably, allow things to be traded on a particular basis, which is why we're getting some of this stuff, one presumes. So are you aware of whether there are any potential problems with preventing inauthentic Aboriginal art being sold in the context of our trade agreements?

Ms Ayres : We did think about that some time ago. I haven't looked at it recently. I know the initial impression was that it wasn't a big problem. I would have to go back and have a look at that issue. I know we did get some pro bono advice around it which suggested that it wouldn't be an impediment, but I may need to get some further advice around that.

Mr SNOWDON: We spoke to the department of trade last week, and my memory of that conversation is that they didn't think it was a great impediment, but it's an interesting area. Thank you.

Ms CLAYDON: Your submission suggests that you're less than enthusiastic about the concept of a mark or certification scheme. As I understand it, your concerns grew out of some wide consultations undertaken in Aboriginal and Torres Strait Islander communities—am I getting this right?—who were opposed to such a scheme. I'm just wondering if you have a recollection about—

Ms Ayres : It wasn't a consultation specifically on a certification scheme, but it's been in the discussions of ways to address the issue. Talking to people around the issue of a label of authenticity and the failure of that label, the feedback we have had is that (1) Aboriginal and Torres Strait Islander artists feel that it's wrong that they have to prove that what they're doing it authentic and (2) the administrative burden of having to go through the process of whatever that certification mark would look like is too difficult, and the onus is put on either the artist or the organisation representing the artist, like an art centre. But I think it would be much more difficult for a lot of the much smaller independent Indigenous artists who would then have to go through that process. I think those were some of the reasons the label of authenticity wasn't successful when it was implemented back in 2000, or around then.

Mr Stellios : It comes back to that point as well around having a model which is premised on private enforcement, whereas for the Australian Consumer Law you have both ACCC enforcement and private enforcement as well, as a dual-track enforcement scheme.

Ms Ayres : The other problem around a certification mark would be that, even if you had one that was reasonably successful, it still wouldn't address the issue of the inauthentic product that didn't bear the mark, so it still isn't necessarily going to solve the problem of the mass-produced inauthentic product.

Ms CLAYDON: I guess it depends on your position on the argument as to whether that influences consumer behaviour or not. I raised this earlier this morning, because people have pointed to the Maori label in New Zealand. When the government abandoned its financial support of that, it was on the basis that it had made absolutely no impact whatsoever on the consumer behaviour. There hadn't been a skyrocketing of sale of authentic items on the market at all. I'm not a consumer psychologist—I don't profess to be—but I'm interested in all the different levers that we can pull and looking for evidence that would support the most effective ways of challenging this. Do you wish to add something there?

Ms Ayres : The other thing, I suppose, that may have already been raised is that a certification mark would require recognition. Given that a lot of the consumers of the type of product we're talking about are tourists who are only in the country for a reasonably short period of time, that education and awareness of that sort of labelling system for it to achieve that sort of recognition I think would be a big ask.

Ms CLAYDON: We heard from the Copyright Agency just prior to your evidence, and your submission points to a number of shortcomings in copyright law that exists in Australia now. I have a recollection of this being a debate for several decades, and yet the Copyright Agency is not in any kind of formal discussion or partnership with organisations like yours and others who might be offering critiques of those existing laws and how we might look at amending those laws. Are you aware of any recent proposals that are being pursued to seek amendments to copyright law, or do you think that that's not an avenue worth pursuing?

Ms Ayres : Certainly there haven't really been recent proposals. In fact, the proposals that have been made in recent times would tend to erode the rights that creators have within the copyright system. We've been quite vocal in making sure that the artists' voice is heard. I'm talking about the Productivity Commission's inquiry into the intellectual property arrangements and the Law Reform Commission's inquiry as well. Both of them are looking at an expansion, I suppose, of the exceptions to copyright protection. One of our great concerns is that any expansion of consumers' rights or users' rights would erode creators' rights and particularly the rights of Indigenous communities in relation to copyright. So, if anything, we've seen the discussion going the other way rather than an expansion in providing greater protection for Indigenous creators and their communities.

There were discussions probably back around 2004 or 2005, around the time when Arts Law established Artists in the Black, and the Australia Council were leading some of those discussions back then, looking at the whole issue of better protection of Indigenous cultural and intellectual property and how that might work with the Copyright Act and also looking at moral rights legislation and whether moral rights legislation might incorporate an Indigenous communal moral rights. There were a lot of preconditions when they were looking at Indigenous communal moral rights as to when that might arise, which would probably not result in any very strong protection at all, so that was abandoned—so, in recent times, none.

Ms CLAYDON: Thank you for that. I have two other lines of inquiry here. Given your preference for some changes to consumer law and a prohibition on the sale of inauthentic products, as I understand it, throughout the supply chain, what have the major obstacles been, do you think, in not having gone down that path to date?

Ms Ayres : I don't know if it's actually been explored previously. I remember—this is probably going back seven or eight years—some discussions with the copyright branch of the Attorney-General's Department, which is where it used to be located. They were interested in looking at something within the consumer laws then, but that never really got past discussions amongst bureaucrats to go any further.

Mr Stellios : I'm in the same position. I haven't seen anything where it's been specifically raised and rejected before. As to why it's being considered now, I think—from my perspective at least, having worked with the code and the Arts Law Centre for some time now—we've seen the ACCC take a lot more action or investigate the conduct more recently under the misleading or deceptive conduct provisions. I think it's been in that context, where the conduct we've seen is clearly misleading or deceptive but there are evidentiary or legal hurdles to bringing an action under the existing provisions, so that was why, when we looked at it, we thought the easiest solution here is just to make it absolutely clear where the dividing line is in the grey area I referred to earlier.

Ms CLAYDON: Thank you for that. I believe you engaged in a shopping expedition with the Indigenous Art Code where you got some good primary data on the sort of prevalence, I guess, of inauthentic art. I can't imagine that you and the Indigenous Art Code are going to be able to go off doing these kinds of undercover operations on a regular basis, so I'm wondering who should play that role. Short of some evidence that we took where possibly the minister is popping into airport stores, I'm not aware of anybody actually trying to monitor and then follow up with any kind of enforcement the prevalence of inauthentic art in Australia. Who is best placed to take on that kind of role, in your view, or does it require a new body?

Ms Ayres : If there were some prohibition, if we were to ban the fake product, I suppose it might well still be dependent on reporting of complaints. I think it would be great if the ACCC could take a greater role in that area where they were actually going out and actively enforcing legislation.

Mr Stellios : I would add to that the state fair-trading departments as well. They do, as I understand it, go out and investigate.

Ms CLAYDON: Do the mystery shopping thing?

Mr Stellios : Yes, that's right. And there is a greater level of coordination these days between the ACCC and the state fair-trading departments, so that is something that they could take a coordinated response to.

Ms CLAYDON: Thank you.

CHAIR: I have a great deal of difficulty with the idea of having complete prohibition, because how do you differentiate between something that is authentic and something that is inauthentic for somebody to then say, 'Well, that's not authentic, and I'm not putting it in my shop,' or, as a consumer, 'I'm not purchasing it'? I find that a very difficult concept to come forward with. Whilst you can say that you can have trading-police people nicking round and testing, to me the solution that's come up before, from other groups, of a differential labelling system is a good identifier for (a) the retailer and (b) the consumer, provided that it is coupled with a bit of awareness raising and education, rather than a prohibition system. Does that make sense to you, or am I questioning something here that seems to have escaped me?

Ms Ayres : I suppose we're coming from having spent a lot of time working with Aboriginal artists and Torres Strait Islander artists and their communities, and we're looking at article 31 of the Declaration on the Rights of Indigenous Peoples, saying that, as a nation, having available for sale a mass-produced, Aboriginal-style fake art, fake products, is unpalatable. It is actually shameful for us to present ourselves in that way to the world, and that's a very strong message that we've received. There's that side of it. It's coming from an ideological position based on a very strong message that we've received from Aboriginal and Torres Strait Islander communities.

Then on the second part of the question—and maybe I'll flick it to Kon—the labelling is just going to label products that are authentic, and all the other products will still be available. Is that really going to make a difference? Banning them and requiring people to provide some identifying information about the product being authentic would be fairly straightforward; I don't think it's that difficult. Certainly, it seems to me that all the people we know working with the authentic product wouldn't have any problem at all in providing that sort of information to the wholesale or the retail sector.

CHAIR: I agree with you on many principles, and we are walking on the same side of one coin. Mine is about honouring the artists and the art centres and making sure they understand that their work is worth being honoured and that it has some social and artistic recognition—a factor that the 'Australian-made' logo had and took quite some years to become market accepted and market preferred. So it's not going to be an overnight thing, but it's certainly worth honouring our artists and artisans and saying, 'You are worth having something that recognises your skill, your talent and your culture.' People will start to look for that symbol of the culture embedded into the marketing. It won't be instantaneous. Then, at a later date, you can possibly think about prohibiting a product, but, in Australia's culture, it's very difficult, in a free trade environment—not just overseas but also within our domestic market—to say, 'You can't sell that product,' irrespective of whether it's a cultural influence or a production influence. You have to have market differentiation from the source, not from prohibiting at the end. From my perspective, as a past manufacturer, I think it's a far easier system not to go down the prohibition route but to do the honouring, where we elevate the status of what's been produced in our nation from our Indigenous peoples, which should meet that United Nations requirement, because the government is then recognising that and assisting that by having a coincidental education process, rather than saying: 'Well, you guys are not making the right stuff. See you later.' To me, it's time to honour our artists and our craftspeople from culture, and that seems to me to be a more appropriate way to do it. I realise I'm speaking to legal people, whereas that's more of a heart thing, but it would seem to me that that would be a more appropriate action to take.

Ms Ayres : I still would say that labelling or having some sort of certification mark would only take us so far, and there are all the hurdles about implementation, especially if the onus is on the artist and the arts organisations to meet the requirements. I think I'm talking about what's moral. We certainly have prohibitions on certain products which we, as a community decided are immoral, and we won't tolerate that. Whilst it may not be harmful in the way that certain sorts of pornography might be harmful, I think for a lot of Aboriginal and Torres Strait Islander people, they would see that the way their culture is being used would be equally harmful.

CHAIR: Given that we're differently seated, I would welcome your recommendations on how you would implement that and what the regime would be. Rather than putting a suggestion, there needs to be a clear way that you've thought already should be a process that could push forward what you're trying to present. There was a comment that it was difficult to get arts centres and artists to be registered with the code in the first place, and I am surprised, if they had been educated on the benefits of it, that that wasn't a more readily accepted avenue. Do you know why it was difficult for artists and art centres to get involved in the original labelling system?

Ms Ayres : On the label of authenticity?

CHAIR: Yes.

Ms Ayres : I'm sorry, I don't really have any information. The work that was done reviewing that hasn't really been publicly available. The anecdotal information is that people didn't feel that they should have to prove that they were authentic, that they were Aboriginal and that their work was authentic and should have to register through the labelling scheme in order to be able to get the certification.

CHAIR: Even if it meant that there was an economic benefit to them?

Ms Ayres : I can't answer that. I don't have the information.

CHAIR: I'd be very interested to see how the information was put to them. If it was put to them in a way that says: 'There's an economic benefit here for you to maintain your culture and to maintain your skill and maintain your goods in sale. It will detract from those copiers in the field'—I understand some of this might have been in discussion, but it would be very interesting to know how that information was put to the artists and craftspeople in culture.

Ms Ayres : The Australia Council for the Arts may be able to provide some further information about that because I think they may have been involved at the time when the label of authenticity was established, but I don't know.

Mr SNOWDON: You mentioned a review. Did you say that—

Ms Ayres : I understood that there was some sort of review of the label of authenticity, but the—

Mr SNOWDON: But you're not sure by whom?

Ms Ayres : We're not sure. I thought it perhaps was by the Australia Council for the Arts—

Mr SNOWDON: We'll talk to you after, Ms Banduk.

Mr Stellios : Just coming back to your earlier question about whether we can do it the other way with education and so on. All I was going to add to that was, we have had examples in the Competition and Consumer Act, where a problem has been identified and where there's a gap in the law, and legislative amendments have been made to fix it on the basis that that prohibition or provision will be reviewed in a few years time to see if it is still needed. Rather than going down the education path, which, as I understand it, has been tried and tested and there have been some difficulties with it, if there's a gap in the law now and there are things that need to be fixed, one option may well be to do what we have in mind on the basis that that prohibition is then reviewed in a number of years time to see if it's still needed. In the meantime, you can still go down that education pathway, and, if the inauthentic stuff falls away, you may well not need that prohibition in the future, and it can fall away.

CHAIR: I welcome the words that you think need to go in there because I have a bit of an issue with the ACCC, especially when they don't pursue small amount cases. They generally pursue the larger amount cases. The market that we're talking about is basically the souvenir trade that's just exploding all over the place and blotting out authentic goods. They're not high purchase price, so that's where I'm a bit concerned about that being the way to address the problem. I think there have been other presenters who have said there is no one way to fix this problem; it's going to be a combination of a lot of things. So I very much welcome the words that you would consider would be appropriate that have been considered, also coming from Indigenous sources and consultation. I think my colleagues have another question.

Ms CLAYDON: I just wanted to tease this out. I think you've put a quite convincing case around this. Perhaps amendments to Consumer Law might be one of the more straightforward, cost-effective mechanisms to address some of those issues that are trying to protect against inauthentic and culturally inappropriate products flooding the market. I think it's correct to draw our attention to the gaps that remain, even with a very well-considered and well-enacted education campaign. We've seen that labelling can play a role, but it has not, in other jurisdictions, resulted in an escalation of authentic products on the market and increased sales there. So there are some questions around only using an educative lever to try to redress this growing problem. If our mystery shopping guides are correct, we're looking at an 80 per cent prevalence of inauthentic product on the tourist market, which is huge. It's a big problem we have to tackle here if those figures are correct.

I think your submission made some observations about looking at transition periods there that might be useful. But one of the things that I believe we should be alert to is placing the compliance onus. The changes in the consumer law, as I understand it, would really place that onus at the retail business end rather than the artist and community end, which makes sense to me, quite frankly. So I'm really just saying thank you, at this point, for putting a succinct proposal to the committee about a legislative change that might be possible there. I'm just wondering whether you were inspired by other jurisdictions in any way or whether you're aware of such changes happening elsewhere that have resulted in good outcomes—or is this all from your own brilliant intellectual effort?

Ms Ayres : I think it's a combined intellectual effort of people who have been looking at this issue for a long time and looking at what some of the solutions may be. Again, we recognise that this is the tip of the iceberg in terms of protection of Indigenous cultural and intellectual property, but it would be a very practical, positive outcome. Yes, I think it is just a combined intellectual effort of the code, Allens and us all working together.

Ms CLAYDON: Great. Given your concerns previously about the lack of protections around intellectual and cultural rights in Australia, we have a witness later on in the afternoon, Terri Janke, who has a proposal and has done a lot of work on what a national Indigenous cultural authority might look like. Do you have any thoughts around that sort of structure and framework?

Ms Ayres : Yes. I certainly think that, if we have rights in Australia around Indigenous cultural and intellectual property, it would be good to have a body to administer those rights. I think that could play a very strong role across the board in delivering rights and educating people. But I think it's important for there to be some rights for the body to administer.

Ms CLAYDON: A point well taken. Thank you.

Mr SNOWDON: I just have one question. Let's assume the 80 per cent figure is an approximation. Are you able to put a value to it?

Ms Ayres : If only I could! No, I can't, really. It's millions, but whether it's tens of millions or hundreds of millions is very difficult to say.

Mr SNOWDON: But what it says is that there are a lot of people on the other side of this argument who have a strong vested interest in making sure that inauthentic Aboriginal art can remain on the shelves.

Ms Ayres : Absolutely.

CHAIR: We want the real stuff.

Mr SNOWDON: No, I'm not arguing with that. I'm just saying—

Ms Ayres : And there's great potential, too, for Aboriginal and Torres Strait Islander artists and their arts organisations to make more sustainable income from their culture.

Mr SNOWDON: Yes. But if you have someone producing something quite cheaply out of material which might be bamboo, say, for a didgeridoo, somewhere north of here, and it comes onto the market, both the retailer and the provider have a vested interest in not caring too much about authentic Aboriginal art.

Ms Ayres : Absolutely.

Mr Stellios : The regime's about unfair practices and what's happening is unfair to the artist as well as the consumer, and this is meant to change the balance, as you said, by putting the onus back on the trader to ensure that what they're doing is fair to both ends of the supply chain.

Mr SNOWDON: But there's plenty of evidence in Australian public policy around the vested interests having more power and control than those people who might be suffering from the impact of their product sales.

CHAIR: On that note, because we have to wind up this session, thank you for your attendance at today's hearing. If you've been asked to provide any additional information or if there's anything else you'd like to provide, please forward this to the secretariat by 20 March. You'll be sent a copy of the transcript of your evidence to which you may suggest corrections. Thank you both, and I look forward to whatever you bring forward.