Nine out of 10 Australians agree that Aboriginal art is an
important part of Australian culture.1 This recognition,
however, is not always reflected in laws that would ordinarily be
expected to protect Australian cultural heritage. The significant
value of Aboriginal art and tradition, both financially and
culturally, makes it a target for exploitation within the
Australian and overseas markets, and not always lawfully.
While works by individual artists are generally protected by
copyright, there are limited statutory rights for the broader
protection of what is characterised as 'intangible'
cultural heritage. Whilst this remains the position in every
Australian jurisdiction, the State of Victoria has now broken
In August 2016, Part 5A of the Aboriginal Heritage Act
2006 (Victoria) (the Act) was introduced to
provide Victoria's traditional owners with more control over
their 'intangible heritage'. Usually known for dealing with
the protection of 'tangible' cultural heritage, such as
ancestral remains, objects or places, the Act extends protection to
'Aboriginal intangible heritage'. According to the
Victorian Minister for Aboriginal Affairs, after Quebec, the State
of Victoria is the second Commonwealth jurisdiction to establish
such protections for Aboriginal heritage.
The Act broadly defines 'Aboriginal intangible heritage'
as 'any knowledge of or expression of Aboriginal tradition
other than Aboriginal cultural heritage' and includes oral
traditions, performing arts, stories, rituals, festivals, social
practices, craft, visual arts and environmental and ecological
The new laws prohibit 'knowingly' exploiting registered
Aboriginal intangible heritage for commercial purposes without the
consent of traditional owners, with penalties of $273,000 for
individuals or $1.5 million for corporations. In addition,
'reckless' use of registered intangible heritage without
consent attracts fines of $183,000 for individuals and $911,000 for
corporations. The Act also provides the right for traditional
owners in Victoria to enter into and register 'Aboriginal
intangible heritage agreements' addressing the protection,
management and compensation payable for a party's use of
registered intangible heritage.
The new laws will provide Victoria's traditional owners with
the opportunity to control their intangible heritage, together with
the prospect of economic benefits through contracts with third
parties seeking to use and commercialise Aboriginal intangible
heritage. The laws are in contrast to the existing Copyright
Act 1968 (Cth) which does not extend protection to Aboriginal
communal works nor traditions or practices that have been known and
passed down through generations over thousands of years. Indeed,
copyright purists may point to this constituting a blurring of the
idea/expression dichotomy but that is an analysis for another
What does this mean for you if you deal in Aboriginal
If your business operates within the Aboriginal art and cultural
space, consideration should be given to the ways in which your
business obtains, develops and commercialises Aboriginal intangible
heritage, particularly intangible heritage belonging to traditional
owner groups in Victoria. As a matter of good business and cultural
practice (and to avoid potential penalties), this means developing
appropriate protocols and policies that comply with the Part 5A
provisions, including how consent for commercialising registered
Aboriginal intangible heritage is obtained from relevant
traditional owner groups and maintained over time.
What does this mean for you if you are a member of a
traditional owner group?
If you are a traditional owner group in Victoria, consideration
should be given to the registration of your intangible heritage so
that it is afforded protection under the new laws. This is
particularly the case if traditional owner groups are negotiating
with third parties who want to use and commercialise traditional
knowledge or other intangible heritage. Traditional owner groups
should also take advice on registering 'Aboriginal intangible
heritage agreements' as set out in the new Part 5A
1 Australia Council for the Arts 2015, Arts
Nation: An Overview of Australian Arts, 2015 Edition, System,
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