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Senate Committee Report: Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019 (16 April 2020)

The Senate Environment and Communications Legislation Committee, considering a bill that would have amended the Australian Consumer Law to prohibit the supply of goods to consumers that include “Indigenous cultural expression” unless supplied under an agreement with an Indigenous artist (or community), has recommended that the bill not be passed.  That is despite the committee members supporting the objective of the bill, and acknowledging the damage to Aboriginal artists and communities caused by the trade in fake Aboriginal art. This bill is apparently not going to be the vehicle to achieve the goal, with the committee report recommending more consultation with Indigenous artists, and other policy reform to work toward toward “a comprehensive, standalone legislative framework to protect the various complex forms of Indigenous cultural expression”.

Therefore, there remains the problem of how Aboriginal art ought best be protected. The concept of protecting “cultural expression” would have been novel in Australia.  Bringing protection within the scope of consumer protection law would perhaps have been a little clunky, but more difficult is using existing intellectual property laws.  For example, copyright law does not protect a style of artwork or other forms of traditional knowledge. Then, how to define “authenticity” in respect of artwork? That is another difficult issue to grapple with.

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