Title Environment and Communications Legislation Committee
Database Senate Committees
Date 06-11-2019
Source Senate
Parl No. 46
Committee Name Environment and Communications Legislation Committee
Page 1
Questioner CHAIR (Senator Fawcett)
Smith, Sen Marielle
Hanson-Young, Sen Sarah
Responder Prof. Altman
System Id committees/commsen/b8f9511b-76b2-4540-bc76-ab35362a750e/0001

Environment and Communications Legislation Committee - 06/11/2019

ALTMAN, Emeritus Professor Jon, Private capacity

Committee met at 13:19

CHAIR ( Senator Fawcett ): I declare open this hearing of the Senate Environment and Communications Legislation Committee inquiry into the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019. Before the committee starts taking evidence, I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of giving evidence to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee.

The committee generally prefers evidence to be given in public but, under the Senate's resolutions, witnesses to have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken, and the committee will determine if it will insist on an answer having regards to the ground on which it is claimed. If the committee determines to insist on an answer, a witness may request that an answer be given in camera. Such a request of course may also be given at any other time.

I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. I invite you to make a short opening statement. At the conclusion of your remarks, the committee will come back to questions.

Prof. Altman : Thank you for the invitation to appear today. I am obviously keen to assist with the enduring and very complex issue of authenticity in relation to the production and reproduction of Indigenous visual art and artefacts. I first addressed this issue in a review I chaired in 1989 for the minister further Aboriginal affairs, Gerry Hand, which is 30 years ago now. The solutions proposed back then focused on resourcing Aboriginal communities and regionally based arts organisations to represent their artists whether by educating buying public or by promoting legitimate licensing arrangements. I am pleased to say many of the recommendations in that review were actually implemented but the problem obviously did not disappear.

In the last decade, I have revisited this issue a few times, most recently in submission and with evidence to the House of Representatives standing committee inquiry into this issue, then as an expert witness in the case ACCC v Birubi Art Pty Ltd in the Federal Court of Australia and now with a brief submission to this inquiry. So while I am always eager to assist any inquiry that takes seriously their economic and cultural import of arts production and sale for Indigenous Australians, I am not sure what I have to add at this juncture to proposals to legally regulate this problem, except to warn that it is likely to be very difficult and potentially bureaucratically cumbersome and so expensive.

In my submission and in thinking about this issue, I keep reporting to the important need to differentiate nominal from expressive authenticity. Nominal authenticity is the simple requirement that the producer is Indigenous. Expressive authenticity, which is alluded to in one or two other submissions to this inquiry, requires that an object's character is recognised as a true expression of artistic customs and traditions. It refers to borrowings by people with nominal authenticity from the seriously guarded customs and traditions of others—that is, if it has not got true expressive authenticity. In relation to some items like didgeridoo or dot paintings from sand designs, such borrowings have become quite ubiquitous. This is probably an issue that needs to be addressed in the Indigenous domain.

I brought a couple of artefacts with me just to demonstrate the distinction because it is not one that is very often understood. It comes more from philosophy and art theory. This item here is a carving from Maraku Arts and Crafts in Central Australia. It has both nominal and expressive authenticity because it is produced by the Anangu people and the design, even though it uses hot poker work, is clearly recognised by broader public as being from Central Australia.

This other lovely little item here is a piece of pottery. It was produced in Alice Springs. It includes drawings by an Aboriginal artist from Santa Teresa. It has, obviously, nominal authenticity because the design is by Aboriginal people, but the design includes an image of a marine turtle, which isn't a Central Australian emblem, and so it has nominal authenticity but it lacks expressive authenticity. I doubt that this item will be the subject of litigation. Nevertheless, it shows the difficulty of combining nominal and expressive authenticity with one item, and, probably unintentionally, having nominal authenticity in another item but not expressive authenticity. I'll leave those. People are welcome to look at them if they so wish.

CHAIR: It's difficult with a hearing like this, where there's an audio transcript. I don't know whether we take a photograph or something—

Prof. Altman : Yes. You're very welcome to take a photograph of both and even pass them around. I should say that the issue of nominal authenticity—whether an item is made by an Indigenous person—is itself tricky to monitor and manage, but is it the real issue? Is the primary information that a buyer wants about an artistic object that it is made by an officially sanctioned First Nations person, or do they want to know more about the style, the country, what the artist intends the design to allude to and so on, which is more the expressive authenticity element?

Australian Consumer Law requires most products—especially food, beverages, clothing and consumer durables—to be accurately labelled. So, one might ask, why not art—especially manufactured tourist art? Australian Consumer Law could make it illegal to either inaccurately label Aboriginal art, which is sort of what the Birubi case was about, in relation to misleading and deceptive conduct—and the Australian Consumer Law and the ACCC showed that that could be prosecuted—or it could make it illegal for wholesalers and retailers who sell inaccurately labelled product to be prosecuted, which would be a lot more difficult. It is a little too soon to know if the Birubi case has had the desired impact on manufacturers and wholesalers who engage in deceptive and misleading conduct. There is certainly still a lot of Birubi-like product out there in the market. Australian Consumer Law could be changed to make more accurate labelling mandatory, but there would still be the issue of funding investigations by the ACCC and of educating the public, including inbound tourists, not to mention supporting existing institutional arrangements like the Indigenous Art Code, Indigenous community-based arts centres and regional organisations like the Association of Northern, Kimberley and Arnhem Aboriginal Artists or ANKAAA, and Desart, funding them more realistically to assist in grassroots regulation.

I just wanted to end by making one very brief comment, and that's obviously in relation to some issues that have been reported in the media in the last couple of days, around art dealer exploitation, duress and poor conduct. I notice that the Minister for Indigenous Australians, Ken Wyatt, responded to that by saying that he doesn't want to see Indigenous visual-art product being undermined, and the real undermining that can occur is through loss of brand equity or through adverse selection—people choosing non-authentic product over authentic product. But I would like to end by saying that there are many policy settings beyond the question of authenticity that could assist Indigenous Australians with the production and sale of art, and I think that, looking at authenticity, we just need to be aware that there's a lot of other institutional settings that could be improved, particularly in supporting remote-living Indigenous artists and also getting the right labour market programs in place to support those artists. Thank you.

CHAIR: Thank you. I was fascinated by your categories. The nominal part is fairly easy to understand. On the expressive part, as I look at the European concept of art, going from mannerism to baroque to neoclassical et cetera, nobody would dispute that it's European art, but it changes its form. If the expressive part is so linked to what has been a land based or people-group based concept, how do you allow for an evolution of art, as we have seen in other parts of the world, and still regard it as being truly authentic Indigenous art?

Prof. Altman : I think that's a really important issue. Nobody is suggesting that Indigenous visual art styles are static culturally or originally. I guess what I am trying to allude to is that this is something that really needs to be negotiated—I think in the Indigenous domain. Of course, there is a borrowing that occurs and you do see borrowing in forms of particularly Indigenous fine art that is quite accepted to Indigenous artists. But I think that it has to be done with the right sorts of protocols. I also think that we need to be aware that, in some contexts, actually taking somebody else's design and using it is quite a politically unacceptable thing to do and it can actually result in group disputation.

In Australia we still have a whole range of settings where, in some places, people hold particular designs and styles very close to themselves in terms of their identity, their rights, their politics and their land ownership. But in another context that is obviously very different. The interplay between that spectrum is something that I think is best negotiated between Indigenous groups rather than to look to how this might be regulated. I also think that we will see this changing over time, as indeed it has, as art history has shown in relation to European art over centuries.

Senator MARIELLE SMITH: Professor Altman, you mentioned your view was that there was a range of other institutional settings beyond standalone legislation which you think would help protect and support Indigenous artists. Could you expand on that point further? What sort of institutional changes would you like to see or that you think would be useful and beneficial for these artists?

Prof. Altman : In terms of individual artists, obviously programs like the Community Development Program, the Work for the Dole scheme in regional and remote Australia, is highly problematic for a number of reasons. One is that some of the service providers are looking to train and employ Aboriginal people as artists, often in situations where you already have existing arts institutions. So you are getting competition within community between long-established and often successful arts institutions and these new providers who have a quantitative incentive to move people from unemployment to employment as artists but aren't necessarily fully aware of local circumstances or the commercial arts sector. So I think that is one problem. Other problems include the lack of support for homelands. There is a lot of information available that shows that Aboriginal artists require that connection to important places on country to draw their inspiration from. While institutional settings don't support people to live on country, this can undermine visual arts practice.

I guess I go back to something I have seen historically, which is that strong community based art centres and programs, like the old Community Development Employment Projects scheme, can actually result in extraordinarily productive arts practice. If you crowd the market with authentic Aboriginal art, that is one of the ways that you can drive out the inauthentic. The very positive thing about CDEP, the old scheme, was that it gave artists a form of income security, a base income above which they could earn additional income. Again, when you contrast Indigenous and non-Indigenous artists, most non-Indigenous artists in Australia have to supplement their income with other forms of employment, but, living in remote and regional Australia, there isn't, often, alternative employment or part-time employment for artists. So CDEP used to incentivise art by giving them a base income and then allowing them to earn additional income without the income taper, without poverty traps. That enhanced their overall income.

I'm not just saying this in terms of institutional arrangements, because we have evidence from the census that, with the introduction of CDP, we've actually seen an increase in Indigenous poverty levels in remote and very remote Australia. The reason for that is that those institutional settings don't incentivise the earning of additional income. Again, just to make it very clear, I used the case of Warlukurlangu artists at Yuendumu as an example in expert evidence in Birubi. For some of these communities, their only real link to market capitalism is through the arts, so most of the adults in a community like Yuendumu will produce something or other of art for sale to supplement their incomes. There is very little formal mainstream employment in that community.

Senator MARIELLE SMITH: Can I just summarise: is it your perspective that a return to a program more like CDEP, as opposed to CDP, would be beneficial for Aboriginal artists and the Aboriginal art industry and sector more broadly?

Prof. Altman : Without doubt. I'd also say that even back in 1989, when I chaired the Review of the Aboriginal Arts and Crafts Industry, as we then called it, CDEP was seen as being a program that was likely to help to grow the sector, because of the fact that there was no income testing, it was highly flexible and—really importantly, I think—people who participated in that scheme were classified as employed, not as unemployed.

Senator MARIELLE SMITH: Can I just clarify, talking about these institutional settings: would you lend your support to the development of standalone legislation to address the broader harms relating to the exploitation of Indigenous cultural expression beyond the Australian Consumer Law? I understand that this piece of legislation as a standalone, in your view, is not sufficient without these broader arrangements, but do you think there is a way to develop legislation which is more extensive and expansive and could help resolve these issues, or will we be unsuccessful unless we actually look at and tackle some of the issues like those you've raised with CDP? I'm just interested in your perspective on that.

Prof. Altman : I think my view would be that, in terms of first-order issues, supporting artists, art centres, Aboriginal arts organisations and their representative organisations like the Indigenous Art Code to engage in actually educating the public, and wholesalers and retailers, about proper practice would probably be more productive than having standalone legislation. I say this knowing that, for example, the Indigenous Art Code has funding for, I think, one employee, and that organisation has to provide an extraordinary range of advice to numerous organisations. I know it works closely with Arts Law and CAL, but nevertheless I think that these sorts of organisations are underresourced. Whether they're resourced from the public sector or whether you have some way for Indigenous artists to contribute is a moot point, but again what we know from the sector is that most Indigenous artists are actually not earning that much income from the arts or from resale royalty payments, so they're not really in a position to make a significant contribution to that sort of educative representation and advocacy.

Senator MARIELLE SMITH: Thank you, Professor.

Senator HANSON-YOUNG: Thank you, Professor, for your submission and for thinking about this bill and these issues again. I know you've given various pieces of evidence on the issues, so I can imagine you feel as though you keep suggesting things and things don't happen, especially seeing as that includes the 1980s—was it?—

Prof. Altman : 1989.

Senator HANSON-YOUNG: So it was long before many of us had thought about this. I understand what you're articulating is that there is a complexity of issues that need to be dealt with and so therefore it feels as though there can't be a one-size-fits-all response. I take that as a given. But I want to tease out how we deal with the easier significant issue of 80 per cent of what you can purchase in Australia not being authentic. That, to me, is the big picture. I can't see a way through that without some type of regulation. It seems so significant that there needs to be something. We are proposing here a regulation around the importation of these fake products and the sale of products without appropriate licensing. I know there are going to be items and scenarios that fall outside of that, of course. But, in the first instance, can we not come to some agreement around dealing with the headline issue of that 80 per cent, much of which is being imported?

Prof. Altman : I have no problems with the sentiment in the bill you've tabled. What I'm saying is that it's just a lot more difficult than it sounds. The first difficulty I have is with the figure of 80 per cent. My question is: how do we know that? It's based on some pretty anecdotal evidence. We don't have good statistics around the sector. But if we accept that it's 80 per cent then we've got to know what proportion of that's imported. I am very uncomfortable with the issue of importation because a lot of licensed product is produced overseas. So there is a likelihood, if you regulate that production and manufacture of authentic Indigenous product be domestic rather than done overseas, you will make the item more expensive, because Australian manufacturing tends to cost more than offshore manufacturing.

Senator HANSON-YOUNG: This bill wouldn't preclude that from happening, though. You could still be licensed to have stuff made overseas.

Prof. Altman : The key thing in all this is to ensure proper licensing and proper labelling. I have no problem—and I think I alluded to that in my opening comment—with Australian consumer law requiring proper labelling of all items of Indigenous art, tourist art or souvenirs. The problem will arise when you look to monitor that and regulate it if an issue arises about who has licensed a product. One question you will get is: is the licensee Indigenous? Answering that will require some sort of assessment of Indigeneity, which can be extraordinarily difficult and uncomfortable. The other question is: do Indigenous people actually recognise that Indigenous person's right to offer that design under a licensing agreement for sale? Of course, you'd be aware—I think this came up in relation to some of the designs that Birubi Art Pty Ltd were producing and the challenge being made to the Indigeneity and the rights of an artist's licence to Birubi to produce those designs.

In all of this, I guess, yes, we want to make sure that we have art properly labelled, but, on the other hand, we want also to ensure that we don't exacerbate any conflict in the Indigenous domain, with Indigenous parties. That's why I think in one of my submissions I make reference to the notion of repress of authenticity. As in native title, we don't want to have groups arguing about who is the real person with the rights here and are they really Indigenous or not? As you said right at the beginning, this is certainly a problem that's been around for decades. It's probably been around since the 1950s. Part of it is probably an indictment of the way Australian capitalism works, which is that anything is open for exploitation and profit-making, but I think that in this case we might have a multipronged approach to making sure we have ethical conduct. Again, I am very sympathetic to the idea that there be a requirement for accurate labelling, but I just don't like the idea of having some sort of ministerially appointed panel making judgements about whether this is authentic or not, because I can just see that as being a recipe for conflict and for unproductive coverage in the popular media, which ultimately doesn't benefit the sector at all.

Senator HANSON-YOUNG: If you take a quick walk down to Victoria markets here you walk past tables and tables of what is thought to be Aboriginal products, with most of them being made overseas, in Indonesia. From my perspective, it's not just an issue of doing what is right by First Nations artists. As a consumer, surely I have a right to know whether something I'm buying is fake or not. If I'm giving up my hard earned cash for something I should be able to know where it's come from. I find it hard to believe that a souvenir type boomerang with what is seen to be Aboriginal artwork on it is somehow meant to express anything other than that it's Australian, and if it's not then I think we need to do something about that.

Prof. Altman : I think what you're describing is quite confronting. I go back to asking whether we need to give a little bit more time to see if the Federal Court case in Birubi is actually having an impact on the sector. That decision was only made in June of this year. My sense is that when somebody gets fined $2.3 million people in the Victoria market might start taking notice. There is obviously an enormous stock of material that somehow needs to be—

Senator HANSON-YOUNG: Dealt with.

Prof. Altman : dealt with. I have no issue with the notion that, legally, we can require accurate labelling of merchandise. I do go back to the fact that, historically, we have seen a lot of manufacture overseas of reasonably cheap souvenir and tourist outfit that was properly licensed and with royalties returned to artists. As the tourism sector has expanded quite dramatically, I don't see why we can't get those institutional arrangements back into place. Going back to CDP, I should say that there used to be arts organisations, like [inaudible] in New South Wales, that used to be at the forefront of legitimately licensing the manufacture of tourist and souvenir art internationally, but designed by their artists.

Senator HANSON-YOUNG: Can I go to the issue of exploitation, and you alluded to this: there are reports out of the APY lands in South Australia this week where Aboriginal artists are being exploited to the point of—it's being equated to modern slavery—being forced to make artwork to pay off debts and things like that. I know this piece of legislation would only deal with that in so far as a licensing arrangement or regulation, which would then require some code of practice—if you're going to have a licence, there needs to be code of practice or some conditions. So perhaps, in a way, that would deal with some of that element. But it obviously takes a broader community response to deal with those issues. I wouldn't want anyone to think that this need for licensing and regulation of the sale and importation of products is a silver bullet on its own. It's not. The fact that a woman in the APY lands is being exploited is, I'd argue, a bigger cultural issue about how we deal with our Indigenous people.

Prof. Altman : And these are obviously complex issues, and sometimes there are elements of Indigenous agency involved in them, which is something I found in some research I did for the ACCC in 2001. But in a place like Alice Springs or the Pit lands, if you have well-resourced community based arts centres providing appropriate support to elderly artists, you might find that the temptation—if that's what it is—to go to somewhere like Alice Springs, where they might be being offered inducements, will be ameliorated. It's not a practice that you're necessarily going to be able to eliminate. But certainly I think, again, we want to see the institutional settings where at least we resource arts centres well enough to look after their artists. And sometimes you do hear artists saying: 'Yes, we know we're going to a carpetbagger, but gee they look after us well.' Artists themselves say that. And in relation to modern-day slavery, I just would like to say that I've used that same terminology in relation to the Community Development Program, because it is coercive and it does pay people half their minimum award rate for working. So, in terms of institutional settings, there are many forms of modern-day slavery occurring in Australian society, not just in relation to some of these sweatshops. I think they should all be eliminated. I certainly agree with you.

Senator HANSON-YOUNG: What about the role of governments—and I'm thinking not just federal but also state and local—to be acquirers of best practice, perhaps, and leading by example with that? Is there a best-practice guide for engaging First Nations artists? Is that something that should be more widely and formally imposed?

Prof. Altman : I think that, again, going back historically as far back as the Australian bicentennial, public art institutions have really showed leadership both in the way they've acquired, displayed and exhibited Aboriginal art and they've certainly used their art museum and gallery shops to promote ethical best practice. The Indigenous Art Code, of course, does provide guidance about how to buy and sell ethically, and there are other charters about. I do think governments of all levels have got a role to play here. I think part of the problem is that their budgets for acquiring Aboriginal art has declined somewhat—even that zeal to really promote and display exhibit Aboriginal art. It's still going on. Some of the regional art fairs that we see in Cairns and Darwin are similarly really displaying best practice in terms of showing souvenir and tourist art and showing that you can actually have art coming from community that's not necessarily expensive but is authentic in both senses of the term that use. I think there is a lot going on, but it might need a little bit more support in terms of resourcing and in terms of getting those broader institutional settings right.

Senator HANSON-YOUNG: It just struck me—and maybe somebody has done research on this; I don't know, and, if you don't know, I'll ask some of the other witnesses anyway—how do we even know that the products that are available in the Parliament House gift shop in Canberra are even authentic?

Prof. Altman : You would probably know that by asking the manager where they've sourced the material.

Senator HANSON-YOUNG: And if he doesn't know then I suppose he can't guarantee it.

Prof. Altman : That's right, but I think what you'll find is that in somewhere like Parliament House—and in relation to my evidence and the Birubi case, as it so happened, I did talk to some of the managers in Canberra—is that they are very conscious of the need to source merchandise that's either legitimately licensed or produced directly by Indigenous artists. But there's still that tension around nominal and expressive authenticity, which I think will never go away, except perhaps over time.

CHAIR: Thank you very much for your evidence. If you have any questions that have been put to you or are sent to you the next week or so, could you please get them back to the committee by 27 November.

Prof. Altman : Okay. Thank you.