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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

ENGLAND, Mr Richard, Chair, Indigenous Art Code

MARIKA, Ms Banduk, Director, Indigenous Art Code

STELLIOS, Mr Kon, Partner, Allens Linklaters

SULLIVAN, Ms Gabrielle, Chief Executive Officer, Indigenous Art Code


CHAIR: I now call the representatives of the Indigenous Art Code. 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'll 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 reasons for your objection and the committee will consider the matter. Do you have any comments to make on the capacity in which you appear?

Ms Marika : I'm also deputy chair of Buku-Larrnggay Mulka arts and crafts.

Mr Stellios : I'm here representing Indigenous Art Code.

CHAIR: I now invite each member to make a representation should they so choose—each and/or, all.

Ms Sullivan : I normally just speak, but I want to make sure I don't forget anything so I'm going to read from my notes. Firstly, I would like to acknowledge the traditional owners of the country where we meet today, the Gadigal people of the Eora Nation, elders past, present and future. I note that, if all of us Australia-wide acknowledged, valued and respected the many Aboriginal and Torres Strait Islander peoples and the nations which they belong to, we might not be here today discussing how to prevent the exploitation of Aboriginal and Torres Strait Islander knowledge in the form of art and craft souvenir products.

I'd also like to introduce the chair, Richard England, of the Indigenous Art Code and Banduk Marika. Banduk is a senior Yolngu woman and an artist who has been advocating for the rights of Aboriginal artists for many decades. She sat on the board of the National Gallery of Australia, the Australia Council and is currently on the board of her community arts centre, Buku Larrnggay-Mulka in Yirrkala. Obviously, thanks go to Kon and Allens for their support with this.

I note that Banduk has brought some brochures from her arts centre—if you want to look at those later—which give you a really good insight into what Aboriginal-owned and governed art businesses do in their communities, along with some artwork. Banduk, Richard and Kon can respond to questions. We welcome the inquiry. Thank you for the inquiry and thank you for coming to Sydney to speak to us.

The Indigenous Art Code was pleased to be able to make a submission on this important issue. The establishment of the Indigenous Art Code was a significant step in acknowledging and supporting Indigenous art and artists in a practical and ongoing way. Our experience in administering the code, particularly through working closely with individual Indigenous artists and communities, has enabled us to see firsthand the significant widespread impact that the proliferation of inauthentic Aboriginal and Torres Strait Islander art is having across the nation.

Before you ask: no, we don't have the stats or exact dollar value of the fake market. But, given how readily available the fake or highly questionable product is, it must be considerable. We don't have that figure, and I'm not quite sure how we'd get to it. Given the difficulties there have been in even trying to understand the value of the authentic market—that's been problematic, with people, dealers and others wanting to share their data—I think it would be very difficult to get the businesses that are doing the wrong thing in this space to supply information willingly, unless you have some other powers to get that from them.

As our submission sets out, this trend is adversely impacting not only the individual artists and their businesses, but the peak bodies—non-Indigenous businesses that sell Aboriginal and Torres Strait Islander art product—as well as local and visiting buyers, plus the wider community. This impact is being felt financially, reputationally and culturally.

It is important to note that the majority of Aboriginal and Torres Strait Islander artists that I have spoken to do not differentiate their cultural expression based on the monetary value of what is being created. A boomerang handcrafted by Aboriginal artists which might retail for $60 might be no less culturally significant than a painting which retails for $10,000. In other words, while the market determines the monetary value of an object, this does not equate to or substitute for its cultural value.

The Indigenous Art Code's commitment to this issue led to us being active facilitators of the Fake Art Harms Culture campaign, and to working directly with artists, communities and other stakeholders to identify practical ways forward, particularly by considering how existing legal and other mechanisms might be drawn or extended on. We acknowledge the work of Arts Law, Copyright Agency, Arts Front as well, and the support of the peak orgs who contributed to the campaign, including Desart, ANKAAA, Indigenous Arts Centre Alliance, Ku Arts, Gab Titui, Torres Strait Regional Authority, UMI Arts, the Aboriginal Art Centre Hub WA and later NAVA.

Touching on what Robyn said, why we embarked on this was, yes, people complaining, but also the theme of all of the fake product coming up in conversations all the time, and, from the artist's perspective, how is this even allowed? From the Aboriginal art centres and Aboriginal-owned and governed businesses that are putting so much effort into making sure that products are licensed properly, that artists are attributed, that all of the work that goes into handcrafting objects like this—they want it to go to market. Yes, artists are making it because they want to generate income from it. But they're also doing it to share their culture, and they feel like they simply can't compete with all of that product that's in the market. There's just no room for it on the shelves. From the experience of going shopping, Robyn and I first started in Sydney, in The Rocks, East Circular Quay and Darling Harbour, and then we'd go to places as we travelled to them. We didn't have the funds to do a one-off trip around Australia and buy fake art—we just did it as we could—and we also had a very limited budget, so we were only buying products at a much lower price point. That's not to say they didn't exist at a higher price point as well.

But one of the things that is most disturbing is that if you're a tourist and you go into one of those shops, you're not only going in there and purchasing a painting that's got zero connection to Aboriginal and Torres Strait Islander culture, or a painted woodwind instrument; the people in those shops are also telling you absolute rubbish about Aboriginal and Torres Strait Islander culture. For many people who visit Australia the only engagement they have might be going into a souvenir shop, a tourist shop or a shop in the airport and being told, 'Such and such comes from Far North Queensland,' and something like this item is 'painted by the such and such people'. Short of getting out the Tindale map with all of the language groups, I couldn't even tell you if 'such and such' people existed. There was so much misinformation, and I found that just as disturbing as only being able to walk away with a fake product—so it's fake information as well as purchasing something fake.

It should be noted that the Indigenous Art Code and Arts Law Centre have both put forward the same proposal for strengthening the Australian Consumer Law. I will refer questions in relation to the ACL to Kon Stellios. The code is under no illusion that amending the ACL will address the broader abuses of Indigenous cultural and intellectual property, but we do believe that implementing the proposed changes to the ACL would go a long way to making a relatively immediate impact and would provide a genuine deterrent from the cultural theft and exploitation of Indigenous cultural intellectual property and the deception of consumers.

We've been gratified by the widespread support for the campaign from artists, consumers and businesses and by the positive reception it has received from parliamentarians, peak bodies and others nationally. We are confident that this inquiry constitutes a vital next step in recognising and resolving this issue. Our submission sought to address the terms of reference both by demonstrating the nature, extent and impact of the proliferation of inauthentic art and craft products and by suggesting approaches which the IAC is confident would begin to address this issue. Facilitating the Fake Art Harms Culture campaign has, at times, been challenging. Part of the challenge has been that, while the Indigenous Art Code has identified or been made aware of business practices which disrespect Aboriginal and Torres Strait Islander culture and fail to acknowledge Indigenous cultural and intellectual property, these practices are not illegal—indeed, this is at the heart of the issue.

In these circumstances, some organisations and individuals who were consulted in developing this submission sought anonymity due to concerns about defamation and potentially being in contravention of Australian Consumer Law in relation to market division. The Indigenous Art Code has also found this difficult. There are things that I'd like to say publicly and information I'd like to give to journalists, but I have been cautious. The code needs to keep its eye on the prize and not end up in a position where we are wasting time responding to our adversaries. We're an organisation with one employee with a national reach, and it is, at times, difficult to manage.

There are a lot of things that people will say to me in passing discussion, and artists are ringing up. I'll encourage them to seek legal advice. Often it's not a straight matter of them saying, 'My copyright's been infringed.' It might be that, but, obviously, I'm not a legal professional and I can't give them legal advice. There's a process to go to Arts Law Centre, and sometimes they might be able to go to the Copyright Agency, but most of the time it's been quite a big step for that individual to even make the phone call to me, so I listen to them and we speak about it. I'm also really mindful of not manipulating or abusing the trust of those individuals, because I want to see something happen quickly. It's been a fine balancing act, I guess. I've encouraged many of those people to come forward. A number of artists I know have made video submissions, and I'm sure you've watched those. I think people are slowly coming out of the woodwork, but it's also about those individuals feeling confident about explaining some of the conduct that they've been subjected to.

I brought along some of the items which we've struggled to determine the authenticity of. When I say struggled I mean that when I went into some of these shops I tried to unknow what I know, because previously I worked as an art centre manager at an Aboriginal owned and governed business, and I've had other roles in state government arts bodies, so I have, probably, more awareness of this than the average punter. But we found it really quite difficult. We went into some of the shops and it was very confusing. There was product that we were absolutely 100 per cent certain was fake, then there was other product that we weren't sure about and then there was other product that was authentic. So it's really hard when everything is mixed up in the way that it was. You've got the information which was provided in that Excel sheet. I guess the only rigour that was applied to that was asking the same series of questions at each place that we went into. With our resources and capacity, that was all we could do.

I can also discuss some of the de-identified case studies and quotations from artists, business owners and consumers. Only last night, I received a call in the early evening from an artist. I can share this with you, but I won't say their name. This Aboriginal artist was from Queensland, had been working there, had previously worked with a non-Indigenous-owned souvenir merchandise business and isn't anymore. He explained to me that, first of all, that business would purchase artwork from him and other Aboriginal artists for what wasn't a fair amount of money, but they sold it because they were desperate for the money. That business was not exploiting his copyright, but he was aware that other artists' work was being reproduced on all types of products. If there was an agreement in place to do that, the artist whose work was reproduced certainly wasn't earning a lot of money from it.

He also then explained how many of these products come into the marketplace. Something might come into Australia, like this object, or on a didgeridoo. He talked about boomerangs as well. A boomerang like this one could be a good example to use, possibly this painted object as well. They would come in from Indonesia, and the backgrounds would be painted on everything—this is what he explained to me—and the outlines of the animals would be as well. The business would then get that artist to fill in a component of it, which I guess sort of covered off on the 'handpainted by an Aboriginal person in Australia'. The artist would then be paid a small unit price for each object that they painted. That's not the first time I've heard that story, and I included another example in the submission as well from an artist who is in her late 60s. She's absolutely desperate. She needed the money. She felt terrible about even the things that she was painting on these objects because she was concerned culturally about whether or not she should be doing it, but she had kids to feed and she said, 'These businesses get hold of us and drip feed us, and it's very hard to get out of the entrapment.'

I will then tell those artists to go to the ACCC or the equivalent fair trading organisation in the state. You asked earlier about the complaints to the ACCC. I don't think most Aboriginal and Torres Strait Islander artists would even know who the ACCC is, let alone that it was an option to go and complain to them about such things. I don't think a lot of consumers would know. Just because people don't know, I don't think that's a reason to say that the ACCC shouldn't be doing something. From the investigators that I've spoken to at the ACCC and even some other fair trading organisations, it certainly isn't their opinion that they still shouldn't be doing something about it. Again, a lot of what goes on is not ethical, but it's not illegal. There was quite a bit of talk about licensing. I'm not going to go into copyright, because I'm not a lawyer, but what definitely has come up is that, with a number of the businesses that are selling the fake product—or the product that we think is fake—there also appears to be some copyright infringement going on there.

While somebody can have a licensing agreement in place—and in fact many of these artists whose work's being reproduced may have had a licencing agreement in place, but did they know that it was a licensing agreement? And, if it was a licensing agreement, what is a fair licensing agreement? From the majority of arts centres, a ballpark—and you've got to be really careful about setting a fee—would be 10 per cent of the retail price of the product, whereas, from what I've heard from most of these businesses, artists would be lucky to get five per cent of the manufacture cost or the wholesale cost. At some point in this, there needs to be further investigation about what makes for a fair licensing agreement and what those amounts are. So many of the artists that have come to me, like I said, I've had to refer to Arts Law, and Arts Law are probably cursing me for doing that. But a lot of the artists don't even know that they own their copyright. They don't know what copyright is. That's probably been one of the satisfying things in this campaign—that education—but it's really, really time-consuming. Organisations like Arts Law can do it better than anybody, but they need the resources and the capacity to be able to get out there on the ground and do that with people.

It should also be noted that much of the poor conduct is simply exploitative, and, again, not necessarily illegal. This is where I see similarities in the way many Aboriginal artists, particularly artist from the Central Desert regions, the APY Lands and the Western Desert, are exploited by some private dealers. And I make the point 'some' private dealers: there are plenty of private dealers that do the right thing, but there are others who absolutely don't. There's no set fee on what an artist should be paid for their artwork, and there is no law that says a private dealer cannot purchase artwork direct from artists and resell the artwork. However, it is the opinion of some dealers that this is purely a business transaction. If an artist is happy to receive cash up-front for a painting, let's say $500, and then that dealer goes and sells it for a significantly increased amount, let's say $5,000, a couple of weeks later, there isn't much that can be done about that. Most people would think that was unfair, and I'm sure the consumer wouldn't be very happy to know, if they paid $5,000 for something, that only such a small percentage went back to the artist. But, again, it's not illegal to do that. The artist of course has the right to say, 'No, I won't sell it to you for that,' but it's often the case that the artists end up entrapped; they're told they're in debt to a private dealer. I'm not going to go into all of the detail of unfair deals with artists now. We know about it, and it would take hours, but it is something I can discuss with you further at a later time. I'm trying to make the point that some of the souvenir businesses operate in a similar way to some of those unscrupulous dealers, paying $1 per unit.

Finally, the code considers it necessary to highlight the inaccessibility of the submission process to many artists and their communities. This format is not a regular way by which Indigenous communities engage with government, and we ask that every effort is made to connect directly with artists and their communities during the process of consultation and public hearings. Meaningful solutions to address this issue will not be reached without Aboriginal and Torres Strait Islander people being integral to their development.

One other thing to note is—and you may ask me this question, but I'll say it now—the code did, in the last 18 months, revisit the requirements for dealer membership, going from asking a few questions to a lot more questions. That is now slowly proving to be beneficial. Somebody will send in an application. They'll complete one-quarter of the questions and leave out the tricky ones. I'll go back and say, 'I need more information.' They'll answer a few more. Then I'll go back and say, 'You've got to give me the rest of this information, or you can't be in the code,' and a lot of those people aren't doing that.

I'm also noticing that, since the Fake Art Harms Culture campaign and also the Commonwealth Games—because there's definitely some work that the Office of Fair Trading's doing in Queensland—there's been an increase from some businesses that we certainly don't want to be members of the code, but I still need to apply the same process to their applications. Some businesses are omitting truths from their applications. Again, when we talk about accreditation or going through who you're going to let use some sort of label of authenticity, or even for us the code logo, which is a voluntary code, it's really, really time-consuming and it takes a lot of going online and doing ABN searches. We're still relying on those people that want to be members of the code to be truthful. We spent a lot of time with Allens and the ACCC last year exploring just how far under our existing constitution we could push things in relation to what we were requiring members of the code to provide to us. There's a lot of information that we would like people to have to tell us. We'd like to make public the supply chains—how every dealer gets their work—whether that's a private art dealer or a shop selling souvenir products, but we're not allowed to do that at the moment. That's because of competition laws, which Kon can speak to.

Mr Stellios : Would you like me to address that now?

Ms Sullivan : Yes.

Mr Stellios : The main reason is that at the moment it is a voluntary code and the members are considered to be competitors. Competitors disclosing to each other the terms on which they may deal with artists and consumers could be sensitive information, like pricing information, commission structures and so on. That is pricing-sensitive information, and that could give rise to concerns under the cartel provisions. At the moment, it's illegal for competitors to discuss an agreed price, for example. Even in the context of industry association or a code structure, disclosing that information to each other would potentially give rise to those concerns under the cartel provisions.

CHAIR: Effectively, the Indigenous Art Code is an accreditation organisation?

Ms Sullivan : No.

CHAIR: You have dealings with the dealers and the retailers?

Ms Sullivan : Yes. Richard may touch on this, because he was around for a lot longer than I was, but when the code was first established the idea was to get everybody in there—all dealers; the ones you hold up here, the ones you would put down here and everything in between—and then you'd start to get people to change their behaviours and do the right thing. Unfortunately, that meant that there were some dealers that signed up to the code that certainly now we wouldn't be letting sign up to the code. There was a sense that the code would have more power than it had. You asked earlier about why some art centres, for example, haven't signed up to the code, but the majority of art centres are signed up to the code or are in the process of doing so. I think that has certainly shifted. There was this idea that some dealers didn't want to be in a club if that club was going to let in other people—that type of thing. Do you want to touch on that, Richard?

Mr England : That was definitely one of the issues that we had by taking an all-inclusive approach, which we should have. We felt morally that it was the right thing to do. It's a voluntary code. Anyone can sign and agree to adhere to this behaviour. But then we had resistance, because what I will call the 'known offenders' were all joining up—and some of them are still amongst our members. Then you had very reputable dealers saying, 'I won't join that code, simply because so-and-so is a member and I'm not going to allow my name to be associated with the code,' which presented us with a huge problem. I must say, since the Fake Art Harms Culture campaign and the elevation of awareness that the code is actually doing some good work, we have had a number of very reputable dealers taking a chance on us and joining, believing that they actually need to lend their names and reputations to the code for the good of all going forward. It remains a problem. I regularly approach reputable dealers who I believe would make a wonderful contribution to the code in one way or another, and they decline to be members while so-and-so is a member.

Mr SNOWDON: How many members do you have?

Ms Sullivan : There are in excess of 200 now, but I'm in a process with some of those members that still need to provide updated details. We have a new website and we're uploading all of that information. There is a little bit of push and pull at the moment. They're in there, but if people fail to respond with the additional information we're asking for, then they won't be able to be members.

What is really promising, though, is the number of new members and the types of businesses that they're in, and that there are people who actively want to do the right thing, asking questions about what best practice means and referring people to, for example, the sample agreements which the Arts Law Centre of Australia have. At the moment it's not a requirement of the code to have a best-practice written agreement in place with the artists that you work with, whether that's on a buy-direct basis, a consignment basis or a licensing agreement basis. From my experience of the issues that have been brought forward in my time, the issues come up when there isn't a written agreement in place. You could also ask the Arts Law Centre about the issues they see when there's not a written agreement in place. At some point in the not-too-distant future, we would like to see a requirement, for code membership, that you have a best-practice written agreement in place with the artists that you work with. That will require us to amend our constitution to do that, so we need to be mindful of at which point we go to our member base and ask for that change.

CHAIR: So your membership, in the early days, had some questionable members who are still members? Is it an annual renewal process, or is it 'once in, always in'?

Ms Sullivan : No, I would say that at the moment the questionable members are probably a few people I can go over with a fine toothcomb, and that's a process that's happening, but anybody that was particularly scary has gone. We also need to be mindful that this is an emotive environment. A lot of what goes on is immoral; it's not illegal. Businesses are in competition with each other. Someone might just not like somebody. So we need to be really objective, and to do that is being consistent and transparent and taking time with assessing those members.

CHAIR: The reason I'm jumping in first up is that the previous presentation was that there needs to be complete prohibition of materials that are not authentic, which is a hard ask, but we're coming forward with suggestions. But the corollary of that, with your organisation, is that you're trying to transition out people who are probably purveyors of that inauthentic art.

Ms Sullivan : No, not inauthentic art. When we're talking about some of those dealers, it's not about questioning the authenticity of the product. It might be about the business arrangement they have with the artist who they acquire work from. It is quite different. I don't have concerns about the authenticity of the work that any of our members are selling. If anybody were to come to the code and say, 'You've got a member and I'm really worried about the authenticity or the provenance of the work,' we will be straight onto that and looking at it.

CHAIR: Okay. So your main contention is the way business is done by the different organisations, and you're in the process of developing a best-practice model?

Ms Sullivan : Yes. But, when I say 'the way business is done', the business that previous presenters have talked about is the fine art market. Whilst the monetary value of what's being sold might be a lot less, as we progress on this campaign and more people come forward and speak to me, the way that those businesses are operating and treating the artists isn't dissimilar.

CHAIR: Do you have a partly developed model of best practice?

Ms Sullivan : Yes, we have a draft of what we would like to see. Best practice, at this stage, is really about having a best-practice written agreement. That's not to say that it would avoid all issues, because the people that are trying to do the wrong thing in this space, whether it's in how they deal with an artist or selling fake art, are sneaky, they're slimy, they're crooks and they're not interested in Aboriginal and Torres Strait Islander culture; they're interested in making money. So they'll do what they can to avoid that. But I truly believe that most people want to do the right thing. So having the requirement for this agreement—which would relate to a business like, for example, Alperstein, who produce ceramic products under licence, for which they do have agreement, or the way a dealer interacts with an artist—means that there's some education that goes with that. We've said to somebody, 'You need to think about all of these things.' At the moment we're asking members or prospective members about how they demonstrate provenance, or their understanding of copyright. It's really, really limited.

So, whilst there are people who are actively trying to do the wrong thing, to make more money, there's also just a lack of understanding about the types of things people should be considering if they're deciding to enter into the business of selling Aboriginal and Torres Strait Islander art. And I guess we're at cross-purposes a bit here, because a lot of what goes on in any other business is that people are getting a tap on the shoulder to say, 'Wow, what a great business model: you're making a fortune; the profit margins are huge.' But because there's an emotional connection to this—and I guess on the whole most Australians, you'd like to think, want to value and respect Indigenous culture—it brings that moral, ethical aspect to this. So, you're sort of looking at it in a different way: 'Am I going to buy that battery that costs that much or a battery that costs this much?' It's a different kind of proposition that you're entering into and you're thinking about the purchase in a different way—or at least some people are.

CHAIR: How does an artist or an art centre know that a particular dealer, retailer or potential business partner—production licenser—has an ethical and moral relationship with culture? Definitely there'll be an economic benefit there, but in order to bring that moral code into the transaction, how is that acknowledged with community?

Ms Sullivan : I think it's the way business operators engage with the community.

Mr England : It has a lot to do with transparency.

CHAIR: But how does community tell that these guys are good guys and these guys are not and that they should deal with the good guys, not the other ones? How do they know?

Ms Sullivan : There's not a hard-and-fast rule, but I'll use a tangible example. For a product that's packaged, like this properly licensed ceramic mug, it's just simple things like an image of the original artwork, the details of the original artwork, the details of that artist, how the attribution is presented to the consumer, that this artwork came from somewhere, that it came from a place. It's just that valuing. I guess it goes back to the Indigenous culture and intellectual property—that there's recognition of that in how that product's placed to the consumer, as opposed to asking, 'Where does this come from?' I can go into a shop and ask about this mug, and I can find out who the artist is, where she's from. If I went back to that business I would be able to get information about the licensing arrangement that was in place, as opposed to buying this one here, which retails for the same price as this one. 'Who's the artist?' 'I don't know.' 'Yes, it's Aboriginal art.' Where's it from?' 'Oh, you know—up north.' I know that this is a fake product, but if you were going to go to a business and all they wanted to do was reproduce your mug and not put your name on it, then that wouldn't be a business that you would want to work with. If a dealer wasn't going to give you the information about what they intended to do with your artwork when they were going to on-sell it, wasn't going to give you the information about what the retail price of that artwork was, or was asking you to sign documentation about selling your artwork but wasn't allowing you the time to go and seek legal advice about that agreement, then I guess they're the indicators, as well, about how open and pushy or not pushy that dealer or that business is in working with you. Some of this just feels very square peg in round hole.

CHAIR: I get all of that. My problem is the production end. How do you educate them to be able to choose—the actual artists? How are they able to discern a good operator?

Ms Marika : There are Indigenous artists who produce art in a community. If a dealer were just to understand the immense hard labour that goes into creating an artwork that goes into a local community craft shop, they would know that it's made with joy and pleasure from natural resources—ochre, wood—all collected physically by an artist or a sculptor, creating a painting and taking it to the craft shop. That's genuine art.

This piece is not genuine. It's not made with care and love; it's made purely to make money for the dealer, in some pathways using Aboriginal people to paint something and, for that, to have it called Indigenous Aboriginal art. That's hurting. That's not fair. That's robbing Indigenous culture. It's promoting Indigenous culture out of Australia that is not authentic.

We artists would like to think that we want to be fair. We want to create. We want to promote. But we want to promote not just our culture but our country in which we live as well. For political reasons, acknowledgement of Aboriginal culture, acknowledgement of languages, acknowledgement of whatever it is—being foreign, you can skip that. You can walk through that. You can, through learning, through teaching, through educating. What does culture mean for an Aboriginal person? That's my ID. That's who I am. It's my country. It highlights my country. It highlights me as an Aboriginal person and my home—my family home.

This fake art doesn't do that. There is no satisfaction of saying: 'That's me. That represents me and my family to my country.' No, it doesn't. And genuine dealers should know that. Genuine art dealers should, because there's no way in the world that an Indigenous person's going to know if you're good or you're bad. No way.

Ms Sullivan : I think genuine art dealers do know that, or they make it their business to know that. I think artists are giving so much away, when they make this work, in sharing it. As to our hard-line approach—if you want to call it that—in recommending the changes to the ACL, of course we think that there should be laws around Indigenous cultural intellectual property in this country, but we just think something needs to be done now that's a strong enough deterrent. That's why we're saying to do that. We just don't think that Kon and his team at Allens would be working with us and suggesting that something like that could work if it couldn't. That's what they do full time. That's what they're experts in. When you get the opportunity to meet with artists in those communities and you're told to chuck things like this bullroarer on a fire and burn them, or you repeatedly hear, 'If we break the law, whitefella law, we'll get in trouble, but whitefellas are breaking our law all the time, but we can't use our law,' it's just like, in the scheme of all of the atrocities that go on, surely this is a no-brainer. We can do better than we've been doing.

Ms Marika : In Australia, prior to colonialism, somebody went out of their way to make a map, and that map actually showed the trade routes from Indigenous person to Indigenous person, what they traded and how far they travelled to get that particular ochre and go back to their people to use it. There was actually a trade route inside Australia. Even people where I come from in the Northern Territory talk about trade routes, talk about people walking miles to get an ochre from somewhere in Western Australia or the middle of Arnhem Land, prior to vehicles, prior to aeroplanes—all of that kind of stuff—but also protocols inside Indigenous families, clan leaders; protocols to different imageries that have been portrayed in different artworks.

This carved and painted bird from Yirrkala is an ornamental piece. It's not sacred; it's not anything. It's purely ornamental. The purity of this is that it's handmade, it's ochres and it's done with care. There is sacred imagery in Australia in Indigenous society that we ourselves are afraid to break. We talk about laws and white people not pursuing perpetrators, who are getting away with it. Where is the practice of laws? Whose laws do we stand by, non-Indigenous, Indigenous or both? How do we protect natural resources to stay inside our own country to promote our country?

CHAIR: Thank you.

Ms CLAYDON: Thanks very much to each of you for the evidence this afternoon. I'm trying to get my head around the state of the membership of the code at the moment. You were founded in 2010, so we're about eight years down the track. You've got 200 members?

Ms Sullivan : Two hundred plus. I can give you an exact count, but I'll need to do that—only because I'm in flux at the moment with going, 'I'm not putting you on the site until you give me more info.'

Ms CLAYDON: Fair enough. I think applying vigorous due diligence to applications for membership is very wise. You flagged that most of the arts centres are members. We took evidence from the Parliament House shop. They're a member. There are a few retail places, but do you have a sense of what percentage of the industry would be members?

Ms Sullivan : I think it depends on how you're defining the industry. There would be a whole lot of businesses that are selling Aboriginal and Torres Strait Islander art product and merchandise that I don't even know exist, because they haven't previously been the types of businesses that the code has been engaged with. So I don't have that breakdown.

Ms CLAYDON: Okay. When you went on your mystery shopping expedition, I'm assuming few, if any, of those retail outlets would have been members of your industry code.

Ms Sullivan : No.

Ms CLAYDON: It was put to us earlier this morning that the code should be as inclusive as possible. We heard you speaking earlier about the original intention and where that's evolved over time, but is it your view that it would be good to include as many of those retail outlets as possible? Is it of value to you to have them signed up as members—although, by the sound of it, there's a lot of paperwork for you to do that.

Ms Sullivan : Only if they can demonstrate that they are absolutely only selling product which is handcrafted by an Aboriginal and Torres Strait Islander artist or made under a fair licensing arrangement. From my experience to date, I can't see many, if any, of those types of businesses being able to sign up to be members of the code. There are even a couple of the souvenir businesses that have been speaking to me and saying that they want to get there. They've actually been really honest about some of their product. They're like, 'Well, I've got to be honest with you: I've probably got $20,000 worth of bamboo didgeridoos at the moment.' It's like: 'Well, with you telling me that, I can't let you be members. When you've got rid of that, come and talk to us.' I'm still speaking to them, but it would be high risk for us to take anybody like that on.


Ms Marika : I think we've talked about accepting the types of people who are selling. It would be a conflict of interest to have somebody on our board who's doing or selling fake art.

Ms CLAYDON: Without question. I'm sorry if it sounded like I was suggesting otherwise. I'm really struggling to understand how much coverage the code has in Australia. I'm wondering therefore what might be the main reasons why vendors didn't sign up. Are they all just dodgy brother operators that don't want to sign?

Ms Sullivan : I think there's no way most vendors like that were going to sign up. Most of them probably knew they'd never be able to. In the last six to 12 months, like I said, there has been an increase, but the types of things they're saying when I ask them are: 'That's all right. I'll set up a separate ABN. I'll just be a member for this product and sell that under this ABN and then I'll sell the fake stuff under another ABN.' I think their reasoning for signing up to anything would be more about getting some sort of a stamp of approval to make life easier for them rather than meeting the objectives of the code. We need to be very careful that we're not seen just to be something that you get a stamp for.

CHAIR: There's actually an avenue of economic leverage there as part of getting rid of inauthentic art. If you are a retailer of excellence protecting Indigenous culture, you have none of those goods in your store and we put a big, bright banner there that says, 'Shop here for authentic Indigenous goods.' So there is an economic lever there, and they pay for that. There's a buy-in from the retailer, so your standards are a recognised economic lever, and then there has to be an educative process for the consumer to know that, if you really want fair-dinkum Indigenous representation, that's where you go. But you've got to have both. You can't have half that story, because it just will fall over.

Ms Sullivan : Absolutely. The code wants that to happen. The thing is it's chasing our tail because of the resources. I'm not saying that to whinge or to make a grab for more cash or whatever. It's just pretty unrealistic with one person. The other thing is it's still voluntary. I'd like to say that everybody wants to do the right thing, but after going through this process I'm convinced that they don't.

Ms CLAYDON: I think that's where I'm trying to go. If you have a mandatory code, which has been a proposal put to the committee by a few witnesses now, one of which I know you support, you are not resourced to do that as it stands. That's a significant but other issue here. Realistically, if it went mandatory, what would need to happen, in addition to resourcing you, to ramp this up to be a mandatory code?

Ms Sullivan : At the moment, we're not pushing for a mandatory code, because we were told a few years ago by the then Attorney-General that it's not going to be a mandatory code and to drop it, so we dropped it. If it were a mandatory code, we wouldn't be enforcing it anyway. I assume that would sit with the ACCC.

Mr Stellios : If it becomes an industry code which is mandated, there are provisions in the Competition and Consumer Act for industry codes to be mandatory like the Franchising Code of Conduct, but you would need there to be some legislative change to mandate the code. But it wouldn't just be a provision which mandates the code; you would also need to couple with that, I imagine, in order to achieve what we're trying to achieve, some prohibition on selling products unless you are a member and complying with the code. Within the code there would still be provisions as to who could become a member and about the products which are handcrafted by an Aboriginal and Torres Strait Islander person or which were being produced pursuant to a licensed reproduction. I think that, in substance, you still end up in the same position as the ACL proposal that we're putting forward; you're just getting there by a different guise.

Ms Sullivan : I guess there has been some discussion about what would be in a code and taking note that minimum standards aren't necessarily best practice. If it's a really minimum standard that's not best practice that people have to meet, does that mean we just end up—

Ms CLAYDON: On another track of questioning, can you talk me through how as a consumer I would be able to confidently walk into a store, know that they're a member of your organisation and be confident that product in that store would be authentic? We've had two very clear, reputable retailers in the parliamentary shop and the MCA gallery gift store give some evidence this morning. MCA wasn't even sure if they were a member of your organisation. The parliamentary shop has absolutely nothing to indicate that they are members of your organisation.

Ms Sullivan : They just haven't put their sticker up.

Ms CLAYDON: I guess that's what I'm asking. Even if they put their sticker up, how would I know what that is?

Ms Sullivan : You don't. You'd look and see it on the shop window, and then you'd have to ask the shop what it was. In relation to the MCA, Clo said she wasn't sure. She's the curator and doesn't manage the retail outlet. But I'm sure Matthew will sign up to the code. In fact, there's a Museum Shops Association of Australia & New Zealand, which I didn't even know existed. I presented at a conference they had, so we're in the process of getting a lot of the museum and gallery shops to be members. But, no, a consumer doesn't know. There's not huge awareness about what the code is amongst consumers. Consumers are also pretty lazy, and I think this is an area where there hasn't been a lot of research into the psychology of consumers and how they behave. Just by reading the CHOICE submission that was put into the inquiry and also speaking to somebody who works at CHOICE, they have found it difficult engaging in this space. I would have thought going to someone like CHOICE and getting them to do some work would be a way of getting a better understanding around this, but if CHOICE is struggling with it then who's not going to struggle with it? It's about a product. They're probably more used to looking at a product to see if it is or isn't safe, whereas you're bringing the ethics layer to this, and from my understanding that's not what they usually do. I've gone off on a tangent there, but, no, there's not a lot for consumers to go by.

Ms CLAYDON: I accept that you have limited resources. Everybody has come to this table to suggest we need a broad education program to accompany whatever legislative levers we might pull. I would be looking to your organisation about that.

Ms Sullivan : There's so much that we could do. We can come back to you with ideas. It's just that feeling of, 'Oh, gosh; are we going to do that as well?' In the development of the new website there are things like decision-making aids. You might be trying to choose how you're going to make a certain type of purchase. We could look at things like that. We want to present more information publicly about the various supply chains. We can't say this one's good and this one's bad, but we need to look at ways of graphically presenting that information to consumers. All of that education can be done; I guess it's just the time and the capacity to do that.

And it's not just the code. There's arts law, the copyright agency, the peaks and even speaking to the Aboriginal Art Association of Australia. There are things that can be done. It's just that—

Ms CLAYDON: you need to be resourced to do them, and that's without question.

Ms Sullivan : Yes.

Ms CLAYDON: There have been ideas about having ethical shopping apps available on people's phones and all that. We do that for groceries. We do that for clothing. We do that for all sorts of things. Why aren't we doing it for Indigenous art? They are the sorts of things I was thinking of.

Ms Sullivan : Yes. Sorry if I was roundabout in answering that.

Ms CLAYDON: That's okay. I know we're running short, and I'm going to hand over to my colleagues.

Ms Sullivan : We've probably gone way over time.

CHAIR: Yes, a little over time, but it's been fantastic. You said there were lots of ideas that you'd like to bring forward—

Ms Sullivan : Are you going to give me homework?

CHAIR: Yes, but we'll give you more than two weeks—

Ms CLAYDON: The woman who is overworked and under resourced—

CHAIR: Marika, you were going to say something about labelling in the past?

Ms Marika : We've been down that track since 1996, the first intellectual copyright case. That was headed by Terri Janke, the first Indigenous lawyer. She isn't here yet; she might be here tomorrow morning, or later. She was a young lawyer fresh out of law school at the time. After many years of representing other artists, who are all deceased now—except me—we went through a phase of working on an authenticity label. That's something that needs to be talked about; if we get down the track and say, 'All right, we're going to do this,' it has to go through the law and all of that. What is the label that we need to work on to put on our authentic art?

Ms Sullivan : Or what's behind it? You can come up with a label, but I guess it's what the foundations and groundwork behind it are, or what it means.

CHAIR: There have been lots of different presenters with lots of different ideas on that. If you have ideas about that we would certainly welcome them.

Mr SNOWDON: I have a couple of questions. Are you aware of the blockchain technology?

Ms Sullivan : I'm aware of it. I'm no mathematician either, and I'm not going to pretend to understand how that's applied.

Mr SNOWDON: I've got no idea, but I think from the evidence we took that there is a potential in that sort of technology—whether it's blockchain or something similar—to actually have some data control which is very transparent and which might provide an avenue for the label. The other question I have is why have you set the fee at $250?

Ms Sullivan : It's $150.

Mr SNOWDON: $150.

Ms Sullivan : The fee was set at $150. In recent times there was a lag. We're trying to review the membership and there had to be that value back—trying to build some more value around the brand of the code. Once I have everybody uploaded and that membership cleared up we'll spike that. But it's really hard to say, 'Hey, you've all got to pay this much money now,' when we're not really offering anything different. But that will increase.

Mr SNOWDON: Is it an annual fee?

Mr England : The $150 was set 10 years ago.

Ms Sullivan : It's an annual fee, yes.

Mr SNOWDON: Ten years ago, well, there you go. If you get $150 from each of your members how else are you funded?

Ms Sullivan : The Indigenous Visual Arts Industry Support funding.

Mr SNOWDON: How much do you get from them?

Ms Sullivan : We get $200,000 a year.

Mr SNOWDON: Have you sought additional money for more resources?

Ms Sullivan : We've put in for some small grants. We've got very small grants from each of the states and territories. Last year was the first time that I think the code has ever received any grant funding from any of the states and territories, even though, apparently, when the code was established the idea was that the states and territories would support it financially. I put in applications for funding last year and that's the first time we received—

Mr England : It was a very specific application for grants to assist us to establish a meaningful website, and that funding did come through.

Ms Sullivan : Yes.

Mr SNOWDON: Have you done some business modelling on what you think your organisation should look like?

Ms Sullivan : Within the board we have, but we haven't gone into a full-on revised business plan. We need to do that. Again, it's this chicken-and-egg thing: every time we sit down to do that focused strategic work it means that the artists and everybody else who calls every day don't get done. It's not the most strategic approach—it's a bit shotgun. We don't want to not respond to the people who we want to be members and the artists that we want to educate, and it's a struggle.

Ms Marika : And when we are a new body as well—

Ms Sullivan : Only the fake art—

Ms Marika : The board—

Ms Sullivan : Oh, the new-ish board—

Ms Marika : The new board.

Ms Sullivan : Yes.

Mr SNOWDON: What I'm trying to explore here is how you can actually try to get additional resources. From the evidence we've received it's clear that you're doing a good job and that the industry supports what you do. But if you're only charging $150 for a membership and if you only have 200-plus members that isn't going to do much at all.

Ms Sullivan : No.

Mr SNOWDON: And you said that you are funded out of a fund—have you not sought an increase in that funding?

Ms Sullivan : Yes, of course.

Mr SNOWDON: So, marginal increases—

Mr England : We submit every three years—

Ms Sullivan : There was a slight increase in the last lot of funding. That made a difference, but it's not huge.

Mr SNOWDON: My point is: do you intend to develop a strategic plan that looks at what the future might be? And if so, when you're doing that strategic plan do you intend to look at what the value product is for government to fund you?

CHAIR: Can I add to that? There are actually one or two people who you could go to to help you develop the strategic plan to then go and look for funding. One is in Prime Minister and Cabinet and one is in the office of the Minister for Indigenous Affairs. I have directed other groups to them, to assist them.

Ms Sullivan : I will follow that up.

CHAIR: Please contact them, because this is cusping on an area that needs business development. It needs funding for business development. You're almost a single-person operator—admittedly, with a fabulous board, which is evidenced here. But the scope of what you need to do probably needs some assistance in terms of dollars in the bank.

Ms Sullivan : It absolutely needs that. And it's not just the money; I think it's what you said about further planning. We did do a draft of a strategic plan last year; that's some really good work our board has done. But you have to be mindful that you can do these things and they can sit on the shelf; you then have to have the capacity. It's not just the money, but having the time and the people to do something with them.

Mr SNOWDON: This is the chicken and the egg, but I imagine the board are watching your work very intently and thinking, 'This woman is overworked and needs help.' If that's what the case is then I'm sure the board will make every effort to help develop a strategic plan which you can market and they will market.

Mr England : Very much—

Ms Sullivan : Yes. At the moment an immediate thing is that we don't even have an office!

Mr England : in scope.

CHAIR: We could probably go on for a lot longer—

Ms Sullivan : Thank you—and sorry if I was roundabout in my responses to you and not direct.

CHAIR: but thank you very much—

Ms CLAYDON: That's all right.

CHAIR: It was fabulous.

Ms CLAYDON: We are trained to bring you straight back to the point!

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'd like to tell us, please forward it to the secretariat by 20 March—if you can't get an extension.

Ms Sullivan : Do you email us an assignment? Or do we just take our notes away today and know what to do?

CHAIR: Take your notes, but if you have any questions come back to us. You'll be sent a copy of the transcript of your evidence, to which you may suggest corrections. We will suspend now until 2.30, so eat fast! Thank you very much.

Proceedings suspended from 13 : 57 to 14 : 27