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Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017

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2016-2017

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017

 

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

Circulated by the authority of

Bob Katter MP

 

 

 

 

 

 

Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017

 

OUTLINE

The Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 (the Bill) will make a range of amendments to the Competition and Consumer Act 2010 (Competition Act).

 

The purpose of the Bill is to prevent non-First Australians and foreigners from benefitting from the sale of Indigenous art, souvenir items and other cultural affirmations and thereby depriving Aboriginal and Torres Strait Islanders of the rightful benefits of their culture.

 

Concern is that an influx of mass-produced Indigenous-style artwork, souvenirs and other cultural affirmations are being imported from overseas and undermining:

1.       the ability of Indigenous artists to gain economic benefit from their work; and

2.       Indigenous culture.

 

 

FINANCIAL IMPACT

The Bill will require the establishment of a new committee, to be paid out of normal budget supply.

 

 

STATEMENT ON COMPATIBILITY WITH HUMAN RIGHTS

 

The Statement of Compatibility with Human Rights appears at the end of this Explanatory Memorandum.

 

 

NOTES ON CLAUSES

Clause 1 - Short title

This clause provides that the short title of the Act be the Competition and Consumer Amendment (Exploitation of Indigenous Culture) Act 2017 .

 

Clause 2 - Commencement

This clause provides for the Act to commence on the day after it receives Royal Assent.

 

Clause 3 — Schedule

This clause is a formal enabling provision for the Schedules to the Bill. It provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 — Amendments

 

Competition and Consumer Act 2010

 

Item 1 — Subsection 2(1) of Schedule 2:

 

This item inserts a definition for indigenous artist , indigenous community and indigenous cultural expression .

 

An indigenous artist is defined as an artist who

  • Identifies as an Aboriginal or Torres Strait Islander; and
  • Is recognised as an Aboriginal or Torres Strait Islander by the community with which the artist identifies.

 

An indigenous community has the meaning specified in section 14A.

 

An indigenous cultural expression is an expression of Indigenous culture that:

  • has archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance to an indigenous community; or
  • has its origins in an indigenous community; or
  • is made by an indigenous artist; or
  • is derived from, or has a likeness or resemblance to, one or more indigenous cultural expressions above.

 

Item 2 - Subsection 14A:

 

The item defines indigenous community as meaning a community or people that identifies as Aboriginal or Torres Strait Islander. This includes:

·          a community that identifies itself as Aboriginal or Torres Strait Islander through a connection with a particular region of Australia; and

·          a group of people within a wider community of the kind mentioned above, that identify themselves as a group through shared goals or activities, such as shared involvement in the arts; and

·          the community of Aboriginal and Torres Strait Islanders of Australia, taken as a whole.

 

Item 3 - Section 50A:

 

This item prohibits a person from supplying or offering to supply to a consumer anything that contains an indigenous cultural expression. There is an exception to this prohibition where the thing is supplied by, or in accordance with an arrangement with, each indigenous community or indigenous artist with whom the expression is connected. In addition the thing must also be made in Australia.

 

The Minister must appoint a committee that is representative of indigenous communities to monitor compliance with the Act and report to the Minister on amendments that can be made to the Act to better protect the rights of indigenous communities and artists.

 

Item 4 - Section 168A

 

This item makes it an offence for a person to supply, or offer to supply, a thing that is an indigenous cultural expression unless the thing is supplied by, or under an arrangement with, an indigenous community or artist.

 

Item 5 - Application

This item clarifies that the amendments made by Schedule 1 of the Bill apply on or after the commencement of Schedule 1.

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

Overview of the Bill

 

The purpose of the Bill is to prevent non-First Australians and foreigners from benefitting from the sale of Indigenous art, souvenir items and other cultural affirmations and thereby depriving Aboriginal and Torres Strait Islanders of the rightful benefits of their culture.

 

The Bill achieves this through protecting Indigenous cultural expressions from appropriation by persons who do not identify as Aboriginal or Torres Strait Islanders.

 

 

Human rights implications

 

This Bill does not unacceptably limit any of the applicable rights or freedoms.

 

 

Presumption of innocence - Strict liability offence in proposed section 168A(3) (item 4)

 

The proposed section 168A(3) sets out that the offence in proposed section 168A(1) is a strict liability offence, subject to the offence-specific defence in proposed section 168A(2). Proposed section 168A(1) makes it an offence for a person to supply or offer to supply a thing to a consumer, which is supplied or offered to be supplied in trade and commerce, and where the thing is an Indigenous cultural expression.

 

This strict liability offence is not inconsistent with the presumption of innocence contained in Article 14(2) of the International Covenant on Civil and Political Rights (‘ICCPR’) because the offence is proportionate to and rationally connected with the pursuit of a legitimate objective. It is therefore a permissible limitation on this right.

 

a.         Legitimate Objective for the Purposes of International Human Rights Law

This legitimate objective is set out in the explanatory memorandum to the Bill. “The purpose of the Bill is to prevent non-First Australians and foreigners from benefitting from the sale of Indigenous art, souvenir items and other cultural affirmations and thereby depriving Aboriginal and Torres Strait Islanders of the rightful benefits of their culture.”

 

This is a legitimate objective because it aims to address concerns regarding an influx of mass-produced Indigenous-style artwork, souvenirs and other cultural affirmations which purports to be and is sold as authentic Australian Indigenous art. Throughout 2016 the Indigenous Art Code and the Arts Law Centre conducted a joint investigation into the sale of Indigenous art or products bearing Indigenous cultural expressions in Australia. From that study, the Arts Law Centre estimates that 'up to 80% of items being sold as legitimate Indigenous artworks in tourist shops around Australia are actually inauthentic.' This led to the 'Fake Art Harms Culture' campaign. The crux of the fake art issue for Indigenous persons is that their culture is being exploited for sale without their consent and arguably sold under false pretences.

 

In addition, the objective the Bill seeks to achieve is consistent with and in furtherance of Article 11(1) of the United Nations Declaration on the Rights of Indigenous Peoples. Article 11(1) sets out that:

 

“Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.”

 

The objective of the Bill is legitimate because it seeks to promote the rights of Indigenous peoples to protect and develop past, present and future manifestations of their culture. By allowing the supply of Indigenous cultural expressions by persons other than Aboriginal and Torres Strait Islanders, the meaning and authenticity of Indigenous cultural expressions are undermined and devalued.

 

b.         Rational Connection to the Objective

The strict liability offence is effective to achieve the above objective because it seeks to limit the circumstances in which a person may supply or offer to supply an Indigenous cultural expression. This is directly related to the protection of Indigenous culture because it will prevent the supply of artefacts, literature of artwork that is unrepresentative of Indigenous culture. It will also ensure that the authenticity of such cultural expressions is retained, thus protecting the past, present and future manifestation of Indigenous culture.

 

c.          Reasonable and Proportionate Means of Achieving the Objective

The inclusion of a strict liability offence is a reasonable means of achieving the objective because requiring the prosecution to prove the existence of a fault element, such as “intention”, “recklessness” etc. would not adequately protect Indigenous persons, Indigenous communities and consumers from exploitation. This is because the conduct prohibited by the Bill has the potential to cause widespread detriment to Indigenous communities both financially and culturally. It also has the potential to cause significant loss to consumers. Many consumers purchase Indigenous art or products bearing Indigenous cultural expression in Australia on the understanding that the item they are purchasing is an authorised item or does in fact bear an Indigenous cultural expression.

 

The strict liability approach is consistent with other provisions of the Australian Consumer Law, including those in respect of unfair practices (the section which the Bill proposes to amend). As outlined in the explanatory memorandum to the Australian Consumer Law:

 

"The strict liability nature of these offences reflects the potential for widespread detriment, both financially for individual consumers and for its effect on the market and consumer confidence more generally, that can be caused by a person that breaches these provisions, whether or not he, she or it intended to engage in the contravention."

 

The absence of a fault element with respect to the offence is also reasonable in light of Article 11(2) of the United Nations Declaration on the Rights of Indigenous Peoples. Article 11(2) sets out that:

“States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”

 

This right is set out in terms of requiring redress with respect to cultural and spiritual property taken without prior consent. This therefore suggests that creating a strict liability offence is appropriate in these circumstances because it is not difficult for suppliers to ensure they know whether or not the Indigenous cultural expression that they supply is made by or made with the consent of an Indigenous artist and Indigenous community. It simply requires the supplier to ask the producer for certification or confirmation. If the offence was not framed in terms of strict liability but instead required a fault element such as “intention” or “recklessness” this would allow defendants to escape liability in instances where prior consent was not obtained (thus undermining the rights of Indigenous persons as contained in Article 11(2)).

 

The strict liability offence is also a proportionate means of achieving the above objective because in addition to the defence of an honest and reasonable mistake still being available to a defendant, there is also an offence-specific defence in proposed section 168A(2). This defence provides that where a person has entered into an arrangement with each Indigenous community and Indigenous artist with whom the Indigenous cultural expression is connected, this will not constitute an offence under proposed section 168(1).

 

Additionally, the strict liability offence is appropriate and proportionate because:

·          the offence is not punishable by imprisonment. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers outlines that it is only appropriate for strict liability to apply if the offence is not punishable by imprisonment and that is the case here;

·          while the fine imposed is higher than that recommend in the Guide, these fines are consistent with other fines imposed for strict liability offences under the Australian Consumer Law; and

·          the offence is narrow and easily capable of avoidance. Suppliers can readily obtain information regarding the origin of products that they supply and should be encouraged to do so. The defence of reasonable mistake of fact in section 207 of the Australian Consumer Law will also help to protect suppliers which rely on information provided to them when they acquire the art for resale.

 

Presumption of innocence - Reverse burden of proof in proposed section 168A(1)-(2)

 

The offence in proposed section 168A(1)-(2) reverses the burden of proof and places the onus on the defendant to prove their innocence. The proposed offence requires the defendant to prove that the thing was supplied by, or in accordance with an arrangement with, each Indigenous community and Indigenous artist with whom the Indigenous cultural expression is connected. Whilst the Committee notes that consistency with the presumption of innocence in Article 14(2) of the ICCPR generally requires the prosecution to prove each element of the offence beyond a reasonable doubt, proposed section 168A(1)-(2) is not inconsistent with the right to be presumed innocent because it is a permissible limitation on this right.

 

There is substantial overlap between the analysis above regarding the strict liability offence in proposed section 168A(3) and the analysis below with respect to the reverse burden offence in proposed section 168A(1)-(2).

 

a.       Legitimate Objective for the Purposes of International Human Rights Law

The legitimate objective is the same as outlined above with respect to the strict liability offence and is reflected in the explanatory memorandum to the Bill.

 

b.       Rational Connection to the Objective

The reverse burden offence is effective to achieve the legitimate objective because it seeks to limit the circumstances in which a person may supply or offer to supply an Indigenous cultural expression. This is directly related to the protection of Indigenous culture because it will prevent the supply of artefacts, literature or artwork that is unrepresentative of Indigenous culture. It will also ensure that the authenticity of such cultural expressions is retained, thus protecting the past, present and future manifestation of Indigenous culture.

 

Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples sets out that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions”. This right is given to Indigenous peoples, not any other peoples. Consequently the requirement to seek permission from Indigenous communities and Indigenous artists ensures that they have ultimate control over their traditional cultural expressions. To permit otherwise could lead to adverse impacts on Indigenous culture through the propagation of Indigenous cultural expressions that are incorrect according to traditional knowledge. This could lead to the erosion or desecration of traditional practices and the inaccurate portrayal of cultural expressions such as Indigenous dance or art. Consequently in these circumstances there is a rational connection between the reverse burden of proof and the objective of preventing non-Indigenous Australians from benefitting from the sale of Indigenous cultural expressions and undermining Indigenous culture. In this respect, providing Indigenous Australians with the ability to control the supply of their traditional cultural expressions respects the rights provided to them by the United Nations Declaration on the Rights of Indigenous Peoples.

 

c.        Reasonable and Proportionate Means of Achieving the Objective

The offence-specific defence, that imposes a burden of proof on the defendant, is a reasonable and proportionate means of achieving the objective of the Bill because:

·          the requirement for consent provides the best protection to Indigenous communities and artists. The fact that suppliers are commercialising Indigenous cultural expressions without obtaining any consent places Indigenous communities and artists in a position of vulnerability and exploitation. This defence focusses on the key issue - whether the relevant Indigenous community and artist has consented to the commercialisation of the indigenous cultural expression with which the community and artist is associated;

·          this defence (and the legal burden associated with it) is appropriate because the consent or licensing arrangements in place for the supply of the art is peculiarly within the knowledge of the defendant. It would be a difficult and costly exercise for the prosecution to disprove consent and would necessarily require the prosecution to ensure that no Indigenous person or community had granted consent to the defendant. Such a burden would be unreasonable and make the offence difficult to establish. By contrast, it does not impose any significant burden on the defendant - if they have obtained consent to use the Indigenous cultural expression in the manner in which they have, they should be able to establish this without any real difficulty. If they have acquired the art or products bearing the Indigenous cultural expression from a wholesaler, they can make it a condition of the wholesale purchase that the wholesaler provides evidence of consent.

This approach is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers which relevantly provides that “where a matter is peculiarly within the defendant’s knowledge and not available to the prosecution, it may be legitimate to cast the matter as a defence”. The Guide also relevantly provides in this respect:

 

“…the [Scrutiny of Bills] Committee has indicated that it may be appropriate for the burden of proof to be placed on a defendant where the facts in relation to the defence might be said to be peculiarly within the knowledge of the defendant, or where proof by the prosecution of a particular matter would be extremely difficult or expensive whereas it could be readily and cheaply provided by the accused.”

 

 

Conclusion

 

This Bill is compatible with human rights.

 

 

 

Hon Bob Katter MP