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A Bill for an Act to amend the Competition and Consumer Act 2010 to prevent unfair practices in the supply of goods that exhibit Indigenous cultural expressions, and for related purposes
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Registered 13 Feb 2019
Introduced Senate 12 Feb 2019
Table of contents.

2016‑2017‑2018‑2019

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019

 

No.      , 2019

 

(Senator Hanson‑Young)

 

 

 

A Bill for an Act to amend the Competition and Consumer Act 2010 to prevent unfair practices in the supply of goods that exhibit Indigenous cultural expressions, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Competition and Consumer Act 2010                                                                     3

 

 


A Bill for an Act to amend the Competition and Consumer Act 2010 to prevent unfair practices in the supply of goods that exhibit Indigenous cultural expressions, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Act 2019.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after the day this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

  

Competition and Consumer Act 2010

1  Subsection 2(1) of Schedule 2

Insert:

Indigenous artist means an artist who:

                     (a)  is a member of the Aboriginal race of Australia or a descendant of the Indigenous inhabitants of the Torres Strait Islands; and

                     (b)  identifies as Aboriginal or Torres Strait Islander; and

                     (b)  is recognised as Aboriginal or Torres Strait Islander by the community with which the artist identifies.

Indigenous ceremonial or sacred artefact means an item, being or containing an Indigenous cultural expression, which is used or held in safe keeping by an Indigenous community for ceremonial or sacred purposes.

Indigenous community: see section 14A.

Indigenous cultural artefact means a good which is of archaeological, anthropological, historical, scientific, social or spiritual significance to an Indigenous community and includes the following:

                     (a)  paintings on bark;

                     (b)  Yidaki or didgeridoo;

                     (c)  boomerang;

                     (d)  clapsticks;

                     (e)  traditional weavings;

                      (f)  dillybags;

                     (g)  grass mats;

                     (h)  carvings.

Indigenous cultural expression means an expression of Indigenous culture (whether through images, form or any other medium) that:

                     (a)  has archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance to an Indigenous community; or

                     (b)  has its origins in an Indigenous community; or

                     (c)  is made by an Indigenous artist; or

                     (d)  is derived from, or has a likeness or resemblance to, one or more Indigenous cultural expressions mentioned in paragraphs (a), (b) or (c).

Indigenous cultural expression contract: see subsection 23(6).

2  Subsection 2(1) of Schedule 2 (definition of rely on)

Omit “or small business contract”, substitute “, small business contract or Indigenous cultural expression contract”.

3  Subsection 2(1) of Schedule 2 (paragraph (b) of the definition of transparent)

Omit “or small business contract”, substitute “, small business contract or Indigenous cultural expression contract”.

4  Subsection 2(1) of Schedule 2 (definition of unfair)

Omit “or small business contract”, substitute “, small business contract or Indigenous cultural expression contract”.

5  After section 14 of Schedule 2

Insert:

14A  Meaning of Indigenous community

             (1)  An Indigenous community is a community of people that identifies itself as Aboriginal or Torres Strait Islander.

             (2)  To avoid doubt, an Indigenous community includes:

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

                     (b)  a group of people within a wider community of the kind mentioned in paragraph (a), that identify themselves as a group through shared goals or activities, such as shared involvement in the arts; or

                     (c)  the community of Aboriginal and Torres Strait Islanders of Australia, taken as a whole.

6  Section 23 of Schedule 2 (heading)

Repeal the heading, substitute:

23  Unfair terms of consumer contracts, small business contracts and Indigenous cultural expression contracts

7  After subsection 23(1)

Insert:

          (1A)  A term of an Indigenous cultural expression contract is void if the term is unfair.

8  After subsection 23(5)

Insert:

             (6)  A contract is an Indigenous cultural expression contract if the contract provides for the grant of consent by an Indigenous artist or Indigenous community to a person to supply, or offer to supply, a good to a consumer that includes an Indigenous cultural expression, with whom the Indigenous artist or Indigenous community is connected.

9  Subsection 24(1) of Schedule 2

Omit “or small business contract”, substitute “, small business contract or Indigenous cultural expression contract”.

10  Subsection 25 of Schedule 2

Omit “or small business contract”, substitute “, small business contract or Indigenous cultural expression contract”.

11  Section 26 of Schedule 2 (heading)

Repeal the heading, substitute:

26  Terms that define main subject matter of consumer contracts, small business contracts or Indigenous cultural expression contracts etc. are unaffected

12  Subsection 26(1) of Schedule 2

Omit “or small business contract”, substitute “, small business contract or Indigenous cultural expression contract”.

13  At the end of Part 3‑1 of Chapter 3 of Schedule 2

Add:

Division 6Unfair practices in relation to the supply of goods that include an Indigenous cultural expression

50A  Misuse of Indigenous cultural expression

             (1)  A person must not, in trade or commerce, supply or offer to supply a good to a person that includes an Indigenous cultural expression unless:

                     (a)  either of the following applies:

                              (i)  the good is made by an Indigenous artist or members of an Indigenous community;

                             (ii)  the good is a reproduction of a thing created by an Indigenous artist or Indigenous community with whom the Indigenous cultural expression is connected, where the reproduction is in accordance with a written licence granted by the Indigenous artist or Indigenous community; and

                     (b)  the good or the licensed reproduction attributes the Indigenous artist or Indigenous community who made the good or the original good in the case of a licensed reproduction; and

                     (c)  if the good is an Indigenous cultural artefact, the good is made in Australia by an Indigenous artist or Indigenous community with whom the Indigenous cultural expression contained on the Indigenous cultural artefact is connected.

             (2)  A person must not, in trade or commerce, supply or offer to supply to a person an Indigenous ceremonial or sacred artefact.

             (3)  A person must not, in trade or commerce, create, provide or rely on a document for the purposes of subsection (4), that the person knows or believes is false in any material respect.

             (4)  For the purposes of subsection (1), it is a defence if the person supplying or offering to supply the good has in his or her possession a document that complies with the regulations made for the purposes of this subsection.

Note:          The regulations may specify requirements as to the contents of the document and the author of the document. The requirements as to the content of the document may deal with matters relating to who made the thing or the basis on which the thing is a licensed reproduction of an original thing.

             (5)  For the purposes of paragraph (1)(b), the attribution may be contained on the good or on packaging of the good which is provided at the time of supply to a person.

             (6)  For the purposes of subsection (2), it is a defence if a person supplying or offering to supply the thing can prove that the Indigenous artist or a member of the Indigenous community to which the Indigenous cultural expression relates had instructed the person supplying or offering to supply the thing that it is not a ceremonial or sacred artefact.

             (7)  The Minister must appoint a committee, or other appropriate body, which is representative of Indigenous communities to:

                     (a)  monitor compliance with this Act as it applies in relation to Indigenous communities and Indigenous artists; and

                     (b)  report to the Minister on any changes that may be required to this Act to better protect the rights of Indigenous communities and Indigenous artists.

50AB  Offences

             (1)  A person commits an offence if the person, in trade or commerce:

                     (a)  supplies or offers to supply a good to a person that includes an Indigenous cultural expression; or

                     (b)  creates, provides or seeks to rely on a document for the purposes of subsection 50A(3), that the person knows or believes is false in any material respect.

             (2)  An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:

                     (a)  $10,000,000;

                     (b)  if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;

                     (c)  if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the 12‑month period ending at the end of the month in which the body corporate committed, or began committing, the offence.

             (3)  An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a fine of not more than $500,000.

             (4)  Subsection (1) does not apply if:

                     (a)  the good is:

                              (i)  made by an Indigenous artist or members of an Indigenous community; or

                             (ii)  a reproduction of a thing created by an Indigenous artist or Indigenous community with whom the Indigenous cultural expression is connected, where the reproduction is in accordance with a written licence granted by the Indigenous artist or Indigenous community; and

                     (b)  if the good is an Indigenous cultural artefact, the good is made in Australia by an Indigenous artist or Indigenous community with whom the Indigenous cultural expression contained on the Indigenous cultural artefact is connected.

             (5)  For the purposes of subsection (1), it is a defence if the person supplying or offering to supply the good has in his or her possession a document that complies with the regulations made for the purposes of this subsection.

Note:          The regulations may specify requirements as to the contents of the document and the author of the document. The requirements as to the content of the document may deal with matters relating to who made the thing or the basis on which the thing is a licensed reproduction of an original thing.

             (6)  Subsection (1) is an offence of strict liability.

14  After Part 1A of Chapter 6 of Schedule 2

Insert:

Part 1BApplication provision relating to the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Act 2019

  

290B  Application

             (1)  The amendments made by Schedule 1 to Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Act 2019 apply in relation to a contract entered into on or after the commencement of that Schedule.

             (2)  The amendments do not apply to a contract entered into before the commencement of that Schedule. However:

                     (a)  if the contract is renewed on or after that commencement—the amendments apply to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or

                     (b)  if a term of the contract is varied on or after that commencement and paragraph (a) has not already applied in relation to the contract—the amendments apply to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that occurs on and after the variation day.

             (3)  Despite subsection (2), the amendments do not apply to a contract, or a term of a contract, to the extent that the operation of the amendments would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).