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Environment and Communications Legislation Committee

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

HILL, Mr Ted, Partner, Allens

PARKIN, Ms Stephanie, Indigenous Engagement Manager, Copyright Agency; and Co-Chair, Indigenous Art Code


CHAIR: I now welcome representatives from the Indigenous Art Code, the Arts Law Centre of Australia and the Copyright Agency. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to each of you. Do you have any comments on the capacities in which you appear?

Mr Hill : I'm a partner at Allens, and we act on a pro bono basis for the Indigenous Art Code and the Arts Law Centre.

CHAIR: Thank you very much. I invite each of you to make a short opening statement, and then the committee will come back to you with some questions.

Ms Parkin : First and foremost, I'd like to thank you all for the invitation to be here today to speak on this important issue. I'd also like to acknowledge the traditional owners of the land on which we gather today to talk about this important business that needs to be dealt with. I belong to the Quandamooka People of North Stradbroke Island, also known as Minjerribah. My people are the traditional custodians of the land and waters from that area. I'm sort of here today in two roles: for the Copyright Agency and for the Indigenous Art Code, and the work that I do with my colleagues here alongside me.

The issue of fake art or inauthentic art and craft products in the souvenir market or tourist market is not a new issue. As I'm sure you're aware, there have been many decades of work carried out by many Aboriginal and Torres Strait Islander artists and people working within the arts industries for many decades, trying to address this issue and trying to ensure there is proper recognition of rights and no exploitation of Aboriginal cultural expression in the souvenir market. So I'd like to acknowledge all the work that people have done over many decades. I suppose, in that sense, inauthentic art and craft has had a prolonged existence in Australia. It's been allowed to exist for many different reasons, one of them being the approach to law that's been taken to date.

The work that's been carried on throughout many decades culminated in a lot of the work that was done by the Copyright Agency, the Indigenous Art Code and Arts Law around the 2016 launch of the Fake Art Harms Culture campaign, which you might be aware of. The launch of that campaign was done because a lot of artists and those in the industry recognised that there is a problem in the souvenir market. A lot of these products are being seen by Aboriginal and Torres Strait Islander people and also non-Indigenous people; they have an awareness that this type of product is allowed to exist in the market. So that campaign was launched. There was quite a lot of media attention and support from peak bodies and artist around the country, making sure that that issue came to the awareness or consciousness of the broader Australian public and to decision-makers.

As you all probably know, that sort of kick-started a lot of the work around the inquiry looking into the same issue. That inquiry was announced in 2017 and it had over 160 written submissions and nearly 30 public hearings around the country. I think what can be gleaned from the evidence of Aboriginal and Torres Strait Islander people who contributed to the inquiry was the harms that are caused by the existence of inauthentic or fake Aboriginal art and craft products in the souvenir market. I've read all of the submissions; part of my masters research is looking at the inquiry, looking the impacts of fake art on the community and looking at some of the solutions that can be proposed.

What I can say is that the evidence of Aboriginal and Torres Strait Islander is very clear, very articulate and very strong. The message is that there is no place for inauthentic art and craft products in the souvenir market in Australia. There is no place for it because of the way it impacts artists and communities. There were quite a few harms identified through all the submissions to the inquiry. The strong types of harm that were talked about were the cultural harms that inauthentic art and craft has on people. The way that harm was articulated by people was that it was due to cultural expressions being connected to and tied to Aboriginal and Torres Strait Islander people's identity, their connection to country and their connection to ancestors' stories that have been passed down through generations and how that is expressed through cultural expression—that is, art. In that sense art, or cultural expression, is not just the physical sense of the piece; there is a whole lot of value and connection tied to those pieces. As we see with cases of inauthentic art and craft products, that connection is not acknowledged and it's not respected—because there is simply no involvement of Aboriginal and Torres Strait Islander artist in the creation of that work.

I wanted to highlight the harms that have been taken out from the inquiry through my review of those submissions to understand why it is so harmful to artists and also communities. The cultural harms came out very strongly; but there were also financial harms as well. As we heard in earlier evidence, artists are unable to create an income and support themselves and their family members when there is a part of the market that completely cuts them out from having that type of benefit, even though that cultural expression belongs to that Aboriginal person.

There is support for the bill because it goes some way to rectifying some of those harms that artists would feel because of the existence of inauthentic art and craft products. In addition to this ACL amendment, the standalone legislation for Indigenous cultural and intellectual property rights is supported in terms of a long-term solution.

Ms Ayres : Thank you for the opportunity to speak to you today. For those of you who don't know, the Arts Law Centre of Australia is a not-for-profit national community legal centre that provides legal advice and other assistance to artists and arts organisations right across the country. We've been actively protecting the rights of artists for 35 years. For 15 years we have operated Artists in the Black—a dedicated service for Aboriginal and Torres Strait Islander artists and arts organisations. In that time we have consulted with and advised artists and organisations in urban, regional, remote and very remote communities right across the country. Last year alone we gave advice to over 1,000 Aboriginal and Torres Strait Islander artists, organisations and communities. We have an extensive outreach program. We are on the road going to speak to artists in communities on a fairly regular basis. Next week I'm going to the APY lands as part of that outreach work.

As Stephanie mentioned, in 2016 Arts Law was involved in the research looking at what was in the market in terms of inauthentic product. We had been lobbied by artists and arts organisations across the country, so we undertook some research where we visited a whole range of tourist precincts and shops that were selling souvenir products in the marketplace. As a result of that research, we estimated that approximately 80 per cent of that product was inauthentic.

I thought it might be useful for you to see some examples. You may well have already looked at those shops yourselves, or seen some of that product, but I've brought along a few examples to highlight the issues Stephanie has spoken about so clearly. The boomerang is a classic artefact of Aboriginal people in Australia. I have one here that is an inauthentic product that was made in Indonesia. It has a mishmash of Aboriginal design on it. There is some dot painting. If you look at the kangaroo in the middle, there is some crosshatching on it. But it has absolutely no connection to Aboriginal and Torres Strait Islander people; it is made up. So there is no connection to country. But I have another boomerang here that was made by an Aboriginal craftsperson. It's totally connected to country. Their culture is embodied in it. The Aboriginal and Torres Strait Islander people that we work with say this one is an authentic boomerang and there is no place for the other one in the marketplace. It is much simpler but it is much more authentic.

I have some clap sticks here, which are also referenced in the bill as cultural artefacts. These are inauthentic clap sticks, which also have the same mishmash of Aboriginal style on them. They have absolutely no connection to Aboriginal people—or to Australia, really—apart from the fact that they look like an Aboriginal artefact. And somebody could easily be misled into believing that they were an Aboriginal artefact. It looks like it has 'Australia' there, so people might think it is made in Australia. It is very hard to know where it was made, but it was made in Indonesia. But these other ones I have here are authentic clap sticks that were made by craftspeople in Central Australia. They came from the arts centre at the base of Uluru, on Maruku, and were made by Arrernte people. Everything about them is authentic.

This artefact, I was told by the souvenir shop where I bought it, is a traditional rain-making instrument. But there is no traditional rain making instrument in Aboriginal and Torres Strait Islander culture as far as I know. But that is what it was told when I bought that object in the souvenir shop down at Circular Quay.

I also have here a couple of products, one of which is authentic and the other inauthentic. This one, whilst it's made in China, is properly licensed. All the packaging shows the detail about the artist. It provides you with information about where the artist is from and about the painting. It tells you which arts centre the artist comes from and that it was properly licensed by a company that is licensing Aboriginal artwork on this type of product. It is quite a nice product, but it is definitely in the souvenir market. By contrast, I have another one here. It has got a kangaroo! It says on the label: 'Aboriginal Art Australia Barramundi'. It says 'Made in China' on the bottom. It has even got a little 'Made in China' sticker. This has no connection here at all to Aboriginal people or Aboriginal artists.

Senator HANSON-YOUNG: That artwork is made up, not ripped off?

Ms Ayres : It's not ripped off, it's made-up art. This cup from is the Walu artists. It is a properly licensed cup. It is an example of when there is a proper licensing arrangement in place with a proper return—a licensing fee or royalty—going back to the artist. But with the other one there is absolutely no return for Aboriginal and Torres Strait Islander peoples.

One thing we have seen at Arts Law is a big increase in artists coming to us for advice around really problematic licensing arrangements. In fact, many of them come to us saying: 'My work's been reproduced without permission. I never gave permission for my work to be on these textiles or this souvenir product.' When we've dug into it, what we've found is that the little piece of paper they got when they thought they were selling their design for $200 was in fact a really terrible licensing arrangement where they were paid $200 and had given the right to the company to use it on whatever products they wanted to use it on and for however long they wanted to use it. It is very difficult to undo those types of arrangements because the artist has signed it. That's why we are proposing that the bill should include a requirement that proper licensing arrangements are in place.

Mr Hill : This bill provides parliament with a fantastic opportunity to do something about the issues that my colleagues have spoken about. In particular, passing this bill, to my mind, is going to do three things. The first thing is that it will send a message that Australia respects Indigenous culture. It will send that message to Indigenous communities and artists and also to visitors in our country who are buying these products. We as a nation don't allow our Indigenous culture to be misappropriated and exploited by others. That's the first thing it will do. The second thing is that it will provide jobs and economic opportunities for Indigenous communities, including in remote Australia. At the moment, those economic benefits are flowing to others who have no connection with Indigenous culture and often overseas. The third thing it will do is make sure that consumers—often visitors to our country—are not misled. There is a law on misleading and deceptive conduct, but it is a grey law. If you look carefully at this product I have here, you will see that it says on the back 'Australia handmade'. So if I sell that to you am I engaging in misleading and deceptive conduct? Lawyers could debate that. If it didn't have 'Australia handmade' on the back, probably it is not misleading and deceptive. Again, the more obviously fake it is, the more lawful it is at the moment. The bill, if you pass it, it will make selling this product illegal. It is really no more complicated than that. It will go from a grey area, where lawyers have debates, to black and white.

Why do we suggest changing the ACL and having the ACCC enforce it? There are a couple of reasons. The main ones are that it can be done quickly, it can be done cost effectively and it will work. The ACCC is an existing body; you don't have to set up a new body. The ACL is an existing law with well tested powers, remedies and penalties; you don't have to reinvent the wheel on that. Doing so is consistent with the ACCC's broad functions and objectives—in particular, their objectives around consumer protection and fair trading. But what is happening at the moment is not fair trading; and this law, to my mind, is clearly about both fair trading and consumer protection. Finally, and most pragmatically, the ACCC is an effective regulator and they will get the job done if we give the job to them.

It is not a solution to every problem in the Indigenous arts community but it is something that can make a real difference and it can be done quickly now. There are a lot of difficult issues in this sector but passing this bill isn't one of them. This is low-hanging fruit where you can make a real difference now. Perhaps, as the previous witness said, you could take out the part about Indigenous sacred artefacts. But with that removed it seems to me that the rest of this is pretty easy and you could be making a real difference now and not waiting for difficult laws on Indigenous cultural protection to be passed in five years time. I wouldn't mind at some point saying something about some of the reservations the ACCC has expressed in its submissions. It would be great if we could come back to that at some point.

CHAIR: Sure, we will come back to that. Thank you. The Aboriginal Art Association, in their evidence, said that they support the bill in principle but feel that it is over-reach. Is that a view you share, particularly in the sacred art space, or are there other areas where you feel as though the scope is too broad?

Mr Hill : From my perspective, it is just the sacred part of it. I think in our submission we suggested that that be removed. I guess I personally still have a residual concern that that is going to go off into the never-never and nothing will ever be done about it. But, hearing the previous witness, I can understand that this might be a bridge too far for this bill. I don't know if my colleagues have a different view.

Ms Parkin : I agree with that. I think that was outlined in our submission, but something dealing with those types of specific objects would perhaps be better suited to standalone legislation. That standalone legislation was recommended by the enquiry in this report, as well.

Senator HANSON-YOUNG: Can I clarify: what you're saying is that those issues still need to be dealt with, but deal with them separately to using the consumer law to deal with this, which is a much more frequent consumer issue.

Ms Parkin : I think so, yes. The narrow focus of this proposed bill, if it's the issues that have been spoken about, is really confined to the souvenir market. That's what we're dealing with and what people are concerned with. That's why we believe that that reference to sacred objects should be dealt with separately.

Senator MARIELLE SMITH: Thanks your evidence today. It has been very informative and helpful. This is perhaps a question for Ms Parkin, but I'm happy for all or any of you to take it. Could you step us through some of the benefits for indigenous communities in developing these better protections for cultural expression and cultural artefacts, in terms of economic, cultural or otherwise? I'd like you to step us through the positive side of these sorts of changes, in terms of this legislation but also more broadly in terms of protection through standalone legislation or other measures.

Ms Parkin : I think some of the benefits that spring to mind, particularly in terms of this bill being focused in the souvenir space, is that Aboriginal and Torres Strait Islander people actually have some type of involvement or consent or knowledge in the creation of these types of products. At the moment, as we've seen, these products can be created without the involvement of an Aboriginal person. That's problematic for various reasons. So one of the benefits is ensuring that there is Aboriginal involvement in the production and sale of something that is uniquely tied to Aboriginal people in this country. Having that control over that expression, being able to control the cultural stories and the knowledge that go behind this cultural expressions—it's not just about having the financial control over it and financial benefits, but what has come out really strongly throughout the enquiry submissions is that Aboriginal people need that control over the cultural stories and the cultural expression, because it is tied to Aboriginal people. So the benefits are financial but, more importantly, the benefits are also cultural—having the autonomy to be able to decide what goes into these products and how they are displayed to the public. There are things that should not be on display to the public, and there are things that are okay to be on display for public consumption. At the moment it is not within the remit of Aboriginal people to be able to control that. In some ways it also goes to ensuring that there is some type of self-determination for Aboriginal people to decide how their cultural expression should be interacted with and engaged with in the market.

Senator MARIELLE SMITH: Ms Ayres or Mr Hill, did you have anything you want to add to that?

Ms Ayres : Flowing on from Stephanie's point, if you remove all that fake product from market, there is obviously a huge opportunity for Aboriginal and Torres Strait Islander people to have an economic benefit from filling that market. That is the obvious point in addition to the cultural benefits.

Senator MARIELLE SMITH: I appreciate that you are broadly supportive of this legislation. Is there anything you want to put on the record in terms of any concerns within the current framework of the bill or things you want to see improved with it? Are there any red flags for you or any issues that you want to raise?

Mr Hill : In our submission we suggested what I would describe as some minor changes for your consideration. One of them was removing the ceremonial and sacred artefact prohibition. There are two others. One was to introduce a requirement that any licencing of products—the cup that was made in China, this one, was made under licence from an indigenous artist. We suggested that there should be regulations about the form of that licence, and the form of that licence would have to comply with those regulations. There is a similar thing done in the horticultural industry for people selling fruit and vegetables under the horticulture code. The agreement that I, as a fruit producer, sign with someone selling my product has to comply with certain minimum requirements. We've suggested that there should be a similar mechanism in this bill, where that licence has to comply with regulations to make sure the artist isn't being ripped off in the way that Robyn described. That was one change we'd suggested.

The other change we'd suggested was that the ACCC publish some enforcement guidelines. In most cases it's going to be screamingly obvious that that's fake and it shouldn't be lawful to sell it. There may be difficult issues on the boundary, and for those difficult issues it would be helpful to have some ACCC enforcement guidelines. They publish enforcement guidelines in other areas, so we suggested that there should be a requirement in the bill that the ACCC publish enforcement guidelines and that the Indigenous advisory committee that the bill already contemplates would have input into both the licence regulations and the enforcement guidelines. But they're very much improvements at the margin. The fundamental thing is to get this thing passed.

CHAIR: Can I just confirm one thing, in terms of your intent? You're right: to an Australian that's clearly fake—

Mr Hill : Yes.

CHAIR: but evidence has been that the artwork on that is essentially made up, that it doesn't relate to any particular people, group, community or culture. If you like, it's like somebody looking at Monet's work and saying, 'I want to paint in an impressionist style,' but they're not actually seeking to replicate one of Monet's works. If something like that was for sale and it very clearly said Made in China, Thailand—pick a country—with no pretence of being made in Australia and not actually appropriating any particular cultural art but merely the style, is your intent that that would still be illegal, as opposed to something like that which says, 'Handmade in Australia'?

Mr Hill : Yes. This bill is not just about making a false representation about something illegal; that's already illegal. What this is making illegal is misappropriating Indigenous culture, and that happens not just by copying something in the way, if I'm an art forger, I might forge a Monet. There is no doubt that this is a boomerang, and there is no doubt that is has been got up with what looks like, to a consumer, an Aboriginal design. That's misappropriation of Indigenous culture. We heard how offensive that is in terms of how it's a mishmash; it's not actually telling a story in a way that an Indigenous person has had buy-in. As we see the bill, that would just be outright illegal, and it's a clear, simple rule to apply. I'm not sure if that—

CHAIR: Sure. It's just that some of the previous witnesses have talked about the nominality of it, and the issue of labelling. So if the labelling was accurate and clearly made it clear it wasn't nominal or it wasn't appropriating a particular culture—I just wanted to clarify where you stand, and I think you have done that. Thank you.

Mr Hill : This is Professor Altman? As I understood the submission, part of the submission was around a concern about the red tape that would be associated, perhaps, with this legislation. I think that this is perhaps a misplaced concerned. I'm not sure Professor Altman was suggesting that it should be lawful to sell that—

CHAIR: I'm not suggesting that either.

Mr Hill : whether it's nominal or whatever, and the evidence of the ACCC has clearly demonstrated that the harm that would be done—what this bill seeks to do is create a way that makes this clearly unlawful, but in a way that doesn't introduce red tape into the flow. There would be very minimal paperwork that would be required. You don't have to prove your authenticity to anyone; if you're a member of the Indigenous community and you make art like this one, you can just sell it. I don't know if my colleagues have—

Senator MARIELLE SMITH: We heard from a previous witness about some of the other institutional issues which affect this broader concern around the exploitation of Indigenous artists and their cultural expression. In terms of the harms and the things that this bill doesn't do, and what sorts of policies, frameworks, institutional settings we should have in place around it or around a standalone piece of legislation to support Indigenous artists, do you have a perspective on that or comments you would like to make and put on the record?

Ms Ayres : I think Stephanie has already said that we would support standalone legislation to protect Indigenous culture and intellectual property. We've been saying that for many years. This bill addresses the tip of the iceberg, really. There is a whole lot of Aboriginal and Torres Strait Islander culture and knowledge that isn't protected and wouldn't be caught by this bill. That still deserves to be protected under Australian law, and it currently isn't. We think it's an admirable recommendation, one that we fully support, that came out of the recent House of Representatives inquiry, it has come out of other inquiries, and we fully support that.

But we're also realistic in knowing that that process, if it's going to be fully consultative and actually deal with the complexity of protecting Indigenous culture and intellectual property, will take some time. I would estimate once those consultations are underway, once a proper effort was underway to develop that legislation, it could take five to 10 years to develop really strong, standalone legislation. The Arts Law Centre has been involved in the World Intellectual Property Organization's intergovernmental committee, which has been trying to develop a treaty to provide better protection of Indigenous traditional cultural expressions and traditional knowledge. We're 20 years down the track with that committee, and they still don't have a treaty that the nations will agree on. I know we're just one country, but it's a very important initiative that has to be done properly and it will take time.

Senator MARIELLE SMITH: But beyond the question of legislative settings, are there other gaps in federal policy, beyond an actual law change, that you believe is necessary for the federal government to look into to adequately protect cultural expression and Indigenous artists?

Ms Parkin : There are probably a range of different things that can be brought into the mix here. I suppose here we're speaking about this bill quite specifically from a legislative approach, which is important because it sets the standard that we're willing to accept or not. I think supporting mechanisms around legislation like this or others that go to Indigenous cultural and intellectual property are things like those that have been spoken about before: education for consumers, for retailers and manufacturers, and for artists, particularly in understanding their rights and ensuring that they're across the issues that they need to be across. Certainly legislation is good, but I think a holistic approach also needs to be taken to ensure that the legislation can have its maximum effect if it's properly supported by other things, like education for a range of different sectors of the community.

Senator HANSON-YOUNG: Mr Hill, you've spoken about the fact that this legislation is needed to get on and start enforcing what is basically common sense from my interpretation of it. At the moment what you're saying is that even if the ACCC were asked to do something, they wouldn't really be able to do it because there aren't even the laws to enforce to cover this boomerang example.

Mr Hill : Yes.

Senator HANSON-YOUNG: I find that quite extraordinary. So if we want somebody to come in and start holding some people to account, we actually need to give them some laws to use. In the ACCC's submission to us, they question whether this is a role that they should have. Could you perhaps speak to that? If the ACCC's job is not to protect consumers, I'm not sure whose role it is.

Mr Hill : Yes. At the outset I should acknowledge that the ACCC have been active under their existing laws in taking action where they could, where there is actually misleading and deceptive conduct, so I wouldn't want to be suggesting I was criticising them. Their submission also acknowledges that the supply of inauthentic Australian art and craft can lead to significant economic, social and cultural harm to Indigenous Australia and is of detriment to consumers. So they understand the problem. As I understand it, they have two reservations about them being given the job and this law change. The first one that they've raised in their submission is that the ACL, the Australian Consumer Law, is not designed for sectorial or subject-matter-specific regulation.

I guess that in response to that I'd say there are myriad areas where the ACCC in fact does have quite specific regulatory roles. In relation to industries, for example, there is the franchising code and there is the horticulture code, which I mentioned before; and there is specific regulation of telcos, gas, electricity and line of shipping. So they do a whole lot of quite specific things. This is no more specific than anything else they do.

And there are specific practices they already regulate: made in Australia representations is one, pyramid selling, bait advertising and so on. So there are a number of specific practices they regulate, and they all come under the umbrella of their overarching objective, which is the welfare of Australians through competition, fair trading and consumer protection. And, as I said before, this is actually about fair trading and consumer protection, so it sits squarely within their fundamental objectives.

The second concern that they expressed, as I understood it, was that it would create unrealistic expectations that the ACCC was now the Indigenous culture policeman. I have a little more sympathy for that, that somehow they're going to be looked to as the body to deal with ceremonial artefacts, for example. Maybe if that part came out then the ACCC concern would be smaller.

One of the other issues they raised was that they can't police everything, that they can't be at every souvenir shop and checking everything. That's fair, but that's—

Senator HANSON-YOUNG: They're not in every takeaway store either.

Mr Hill : No, indeed—that's right. What they do, and what they do very well, is take enforcement action in some cases and then publicise it. Rod Sims is on the front page of the paper in order to get the message out there that not providing consumer guarantees is a problem. The ACCC knows very well how to pick the right cases to take, to publicise those cases and to get change. From my perspective at least, I think the community is sophisticated enough to know that this law isn't giving the ACCC powers over everything to do with Indigenous culture. There is a very specific prohibition on the sale of fake product, which they will enforce and they'll enforce it in the usual way, which I've described. That was really all I wanted to say.

Senator HANSON-YOUNG: Thank you. You're suggesting that we could deal a little with this issue of the ACCC suggesting that perhaps it isn't their role to be an arbiter of cultural expression by removing this more debated element around artefacts and—

Mr Hill : Yes—ceremonial and sacred art.

Senator HANSON-YOUNG: Ceremonial and sacred artefacts.

Mr Hill : That's right—I think so.

Senator HANSON-YOUNG: And, as we've already seen—and, Ms Ayres, you referenced this already—that's not the bulk of the problem that we're dealing with anyway.

Mr Hill : No.

Senator HANSON-YOUNG: None of those elements are in what you've shown us here today in terms of this blatant rip-off of Aboriginal artwork and products.

Mr Hill : No.

Senator HANSON-YOUNG: I'll go to the guidelines element—for licensing in particular. At the moment, for the cup here, which is effectively licensed, you can even see that on the bottom of it. I asked the secretariat to make sure we got a photo of the bottom of the cup, because the information is far more detailed. It may not be as big and bold as that other one—there is some cruel irony in that! Is that done simply off the back of the producer? Is that correct? They're the ones who've decided to put all that information on there and that it would be officially licensed, and they've paid the proper copyright. Is this on a kind of goodwill basis? Is that what we're dealing with at the moment?

Ms Ayres : This company has decided this. They're probably one of the leaders. They're a small company, as far as I understand it. But they've gone out there and they're working directly with the art centres. They're going through processes where they have licensing agreements and where they're negotiating those agreements. They provide the artists with the mock-ups before they actually go into production. So they're doing everything the right way, and the artist is getting a percentage of the amount for every product that's sold. So, yes, that's their business model. I suppose their packaging and everything is representative of the value that they're trying to provide to the consumer.

Senator HANSON-YOUNG: Absolutely, but my point is: they're just doing that because they've decided—whether it's because of good business sense or whether it's the right, ethical thing to do—to do that off their own bat. There's nothing that forces them to do that. What this piece of legislation would need—and it may not be that exact model—are some guidelines that say: 'There is going to be a licence. This is what the bare minimum practice should be.' Is that what you were suggesting, Mr Hill?

Mr Hill : That's exactly it, and that's not dissimilar to what happens in the franchising industry or the horticulture industry.

Senator HANSON-YOUNG: Could you unpack that a little bit for us?

Mr Hill : There's a franchising code and a horticulture code, and they're completely unrelated; they're just two industry codes and they're enforced by the ACCC. There's been a history of exploitation in those industries, and one of the protections that both of those codes introduce is a requirement that there be a written contract between the fruit and veggie producer and the wholesaler which sets out certain minimum terms and conditions. It's not terribly prescriptive, but there are certain minimum things that need to be there so that everyone's turned their mind to the issue and they've recorded it in writing, so there's no doubt about it. The idea here is that, by regulation—and the regulation will be made in consultation with an Indigenous advisory committee—there would be certain bare minimums that would need to appear in those licence agreements. They can be as detailed or as high level as the minister chooses through the process of making regulation.

Senator HANSON-YOUNG: So what you're saying is that this isn't abnormal. These types of guidelines are things that the ACCC is already working within for other sectors.

Mr Hill : Yes. In an industry where there's been a history of exploitation—maybe 'exploitation' is too strong a word. In any industry where one party is vulnerable, like a franchisee, a fruit and veggie grower or an Indigenous artist, the concept of having some minimum guidelines for written contracts is not unorthodox.

Senator HANSON-YOUNG: You also spoke about dealing with these issues. You spoke about making it illegal, effectively, to import fake products and then having some requirements for licensing for where they're made—for example, in China or elsewhere—and you said that could be done relatively quickly compared with some of these other issues. Maybe this is a question for you, Stephanie: is that realistic? It's one thing to get it through the bureaucracy—that's our job, and we work with our respective parties to do that—but how realistic is it for the community to understand a new set of rules, to be empowered and to know how to blow the whistle if a particular supplier continues to do the wrong thing and they need to be dobbed in to the ACCC?

Ms Parkin : I think there's appetite to take that up, definitely, within the communities, with artists that we do work with and through listening and reading all the submissions that Aboriginal people have put in to the inquiry. I think a lot of the existing organisations—like copyright, arts and law—have avenues through which a lot of these things could be funnelled, as well, through to the ACCC. They're issues that are raised with us from time to time. So, definitely, I think there's a real need for it, and, definitely, if community and artists knew that this was a stand willing to be taken, they'd be really encouraged to take steps and call out those who are breaching these provisions.

Mr Hill : If I could add to that by telling a story: I was in a country town, in the information centre, and it had some Indigenous art on sale. Someone happened to walk into the store and point it out to the person behind the counter. They said, 'You know that's fake, don't you?' The person behind the counter—a regular person, unprompted by me, although I was listening pretty carefully—said: 'Yes, I know. I don't think it's right. As soon as we've sold that stock, we're going to move to the authentic stuff.' You will need to allow that kind of transition for people who've got product on stock to sell down and find a new supplier. There will need to be a bit of lead time to allow—

Senator HANSON-YOUNG: A grace period.

Mr Hill : a grace period—people to sell down their stock, get new stock and that kind of thing. And the bill already contemplates that kind of lead time, so it's not going to be, even if you pass it today, a tomorrow thing. There will need to be a sensible transition, but it's much easier than some of the other stuff that's been discussed today.

Senator HANSON-YOUNG: Yes. Could I go to some of that other stuff quickly while I've got some experts in the room? Some of these stories that are coming out, particularly from the APY Lands, around the exploitation of artists by forcing people to paint for hours to pay off debts, someone has described as modern slavery. This piece of legislation, in some respects because of the licensing element and the guidelines, might help deal with some of it, but, if unscrupulous dealers are going to behave in unscrupulous ways and take advantage of Aboriginal people, there needs to be some broader solutions on that front. Have you got anything burning that you think we need to be advocating for to stamp out that kind of behaviour?

Ms Parkin : Yes, it is behaviour that has existed for a long time and we're certainly aware of the media that's been around the issue in the last couple of days. There are probably a few different agencies and approaches that could be taken with it. If there are allegations of, as we saw in those articles, artists being mistreated, that's obviously a police matter on one hand. I did read somewhere that maybe there is some role for the ACCC. But as you mentioned, Senator, there are also these issues around behaviour and ethical treatment. There's a real piece of work in there in trying to change those behaviours and treatment towards Aboriginal artists. I know that the Indigenous Art Code and my role there and the work that we do go some way to ensuring there are ethical and transparent arrangements between art dealers and artists. The art code was established due to previous inquiries into similar issues, and it is an issue that continues to exist.

Senator HANSON-YOUNG: One Aboriginal leader in South Australia put to me a couple of weeks ago that he knows of one community where an art dealer is effectively trading alcohol and drugs for paintings. Is that something that you've heard of or come across before? Is this just alarmist sensationalism or are things like that actually happening?

Ms Parkin : I don't hear about it a great deal, frequently, but I do know about it second-hand; I haven't see it with my own eyes or heard about it from the people that have been directly affected by it. I think that's important. If we are talking about these issues that are quite complex, there are different issues at play—issues around poverty and vulnerable people. It's a very complex area, and I think a cautious approach, if I must say, is warranted when dealing with these types of issues. It was a case-by-case basis a lot of the time, and there are a lot of intricate and complex details at play.

Ms Ayres : When there was the parliamentary inquiry into the Indigenous visual arts industry in I think 2007, it was because these very same sorts of allegations were being made back then, and one of the recommendations that came out of that was the establishment of the Indigenous Art Code so that people would have to be members of the art code in order to sell. There was a big argument around the time about whether it should be a mandatory code or a voluntary code. It was set up as a voluntary code, so the people who are doing the wrong thing will continue to do the wrong thing, and the people who are doing the right thing are members of the code. So I think there's an issue there in that the code is still voluntary. We said back then, 10 years ago, that it should be a mandatory code so that, if people are going to sell Indigenous art, they had to be dealing in an ethical way rather than some people doing it the right way and some people not doing it the right way. So these are very similar issues to those raised over 10 years ago.

Ms Parkin : The inquiry's report flagged the idea of the code potentially becoming mandatory. So that has certainly been put on the table for further consideration. From the Indigenous Art Code's perspective, I know that at one point it wasn't on the agenda—

Senator HANSON-YOUNG: Yes.

Ms Parkin : and so it was left that it wouldn't be a mandatory code. But, now that it has been spoken about again, we'd be more than happy to consider that further and talk with you further if need be.

CHAIR: Thank you very much. If you have been asked to take anything on notice, you will be sent a confirmation of questions from the secretariat within a week or so. If you could have those answers back to us by 27 November that would be very useful.

Proceedings suspended from 15:20 to 15:30