II DIFFERING LEGAL LENSES

While the final Report has no working definition of ‘authentic’, three factors with ‘significant bearing’ for assessing an ‘authentic’ work in this context are put forward: cultural authorisation7, Aboriginal and Torres Strait Islander authorship, and adherence to copyright laws8. The most significant obstacle to a succinct definition of ‘authentic’ within the Report is some First Nations parties’ rejection of the term as a responsive and salient descriptor of the works they produce. This contention presents a conceptual stalemate to an agreed and succinct definition.

The delineation between ‘authentic’ and ‘inauthentic’ goods in the Report is complicated by the lens through which the PC considers the issue. Making assessments on real as opposed to fake or counterfeit goods within the context of art is a decidedly artificial enterprise. The line of when something is real or imitation in art has itself been the subject of art movements and focus9. While the PC conducts its assessment of genuine art as it relates to Indigeneity (itself a very challenging legal concept),10 the directive of distilling ‘authentic’ into a workable model to assist a market necessarily precludes consideration of radically different and equally valid Aboriginal and Torres Strait Islander perspectives on the matter. It demonstrates an instrumentalist approach to defining authenticity, informed by the paradigm of those seeking to benefit from its definition.¹¹ That is, the PC has been tasked with considering authenticity so it can solve a problem within a particular socio-legal paradigm. Certain conceptions of authenticity, albeit valid, will not be considered by the PC if they are irreconcilable with this paradigm. This poses the issue of restricting First Nations perspectives on the matter because input must necessarily favour ‘solving’ the issue within an inherently Anglo-European legal framework.

For example, submissions of the Indigenous Art Code to the PC noted that ‘authentic’ within this context is not a term used by most Aboriginal and Torres Strait Islander artists for their work. Rather, they submitted that the delineation between in/authenticity was predominantly deployed by non-Indigenous audiences as means to ‘understand this issue’.¹² Similarly, Elizabeth Coleman identified that ‘[t]he Australian arts establishment has constituted Aboriginal painting in its own image.’¹³ The crux of her argument being that the differing conceptions of paintings between nonIndigenous and Indigenous cultures were ontologically incompatible. The Indigenous Art Code would nonetheless make submissions to the Australian Parliament regarding a desired descriptor for ‘authentic’, demonstrating that submissions must be sufficiently amenable to the PC’s intended purpose to produce a material impact. This can come, as the Indigenous Art Code’s submissions indicate, at the expense of the PC conducting a proper appreciation of better incorporating First Nations artists’ views into their own market.

B Conceptual Stalemate

One could counter that the PC was tasked with better understanding and making recommendations on reducing the excessive amount of counterfeit First Nations works on the VA&H market. One might argue that it is not, therefore, within the PC’s scope to mandatorily incorporate Indigenous perspectives on the matter, nor contemplate whether ‘authentic’ was a conceptually valid term to anchor the delineation between works with certain qualities (such as Aboriginal and Torres Strait Islander authorship).

Aversion to incorporating First Nations’ perspectives on protecting their own art market, would be counterproductive. Excising A&TSIs’ participation in describing their own VA&H market would not conform to the PC’s purported approach of: examining the nature of the market including authentic products, identifying deficiencies and barriers in the market and how they affect artists, and having regard to the impacts of policy responses to Aboriginal and Torres Strait Islander artists.14 Cumulatively, ignoring A&TSI artists’ relationship to ‘authenticity’ in works produced for the market goes against the PC’s own nominated approach for conducting the Report.

Contemplating the nature and deficiencies of disjunct terminological structures for Aboriginal and Torres Strait Islander artists and their works, including the dichotomous assessment of in/authenticity must therefore follow as being within the scope of the Report. Aversion to these perspectives, especially as they are in the purported majority, creates an irreconcilable gap in creating an inclusive and culturally-responsive formulation of ‘authentic’ in this context. The PC need not discard the formulation of ‘authentic’ altogether. However, its use as a utilitarian framing device rather than being culturally and ontologically responsive to many Aboriginal and Torres Strait Islander conceptions of their works must be acknowledged and adapted into its use appropriately.

Iii Conclusion

Determining an inclusive definition of ‘authentic’ in the Aboriginal and Torres Strait Islander VA&H market from the Report is presently at a stalemate. The PC’s formulation and deployment of the term perpetuates a lack of responsiveness to the relationship many Aboriginal and Torres Strait Islander authors have between themselves and their VA&H works.

7Cultural authorisation describes gaining the appropriate consent and approval for depiction of Indigenous Cultural and Intellectual Property in a work as a means of respecting traditional customary laws - Ibid 111.

8Ibid 33.

9David E. W. Fenner, Ethics and the Art: An Anthology (Routledge Taylor & Francis Group, 1995) 12-13.

10Mabo v Queensland [No 2] (1992) 175 CLR 1; Love v Commonwealth (2020) 270 CLR 152.

11Marcus Banks, ‘Post-Authenticity: Dilemmas of Identity in the 20th and 21st Centuries’ (2013) 86(2) Anthropological Quarterly 481, 487.

12Report (n 1) 110; originally in Indigenous Art Code, Submission No

138 to the Parliament of Australia, The Growing Presence of Inauthentic Aboriginal and Torres Strait Islander ‘Style’ Art and Craft Products and Merchandise for Sale Across Australia (31 October 2017) 1; and cited in the joint submission of Arts Law Centre of Australia and Indigenous Art Code, Submission No 31 to the Productivity Commission, Issues Paper - Aboriginal and Torres Strait Islander Visual Arts and Crafts (9 February 2022) 23.

13Elizabeth Burns Coleman, ‘Aboriginal painting: identity and authenticity’ (2001) 59 The Journal of Aesthetics and Art Criticism 385, 388 (Identity and Authenticity).

14Report (n 1) iii.