Traditional laws and customs of Indigenous groups

7.22 In this section, the ALRC focuses on the privacy of Indigenous groups. During the course of this Inquiry, a number of stakeholders expressed concerns about the privacy of Indigenous groups, rather than other identified racial, ethnic or cultural groups. Consequently, the ALRC has focused on the privacy of Indigenous groups. This in no way suggests that the OPC should refrain from developing and publishing guidance on the privacy rights of other racial, cultural or ethnic groups. Rather, it indicates that the views expressed by stakeholders in submissions and consultations were specifically directed to the privacy of Indigenous groups.

7.23 In previous Inquiries, the ALRC has noted concerns about the adequacy of legal protection for the cultural rights of Indigenous groups.^[36] Several stakeholders noted the particular interaction between Anglo-Australian laws and the traditional laws and customs of Indigenous groups.^[37]

7.24 For example, under the traditional laws and customs of Indigenous groups certain information may be viewed or disclosed only to a defined category of people—such as the women of a particular Indigenous group.^[38] In addition, it is often contrary to the traditional laws and customs of Indigenous groups to broadcast the name or image of an Indigenous person who is deceased.^[39]

7.25 On one view, such laws and customs relate to information privacy rights because the information in question is intimately connected to the identity, dignity and autonomy of Indigenous people—individually, collectively or both. On another view, these rules more closely resemble intellectual property or cultural heritage laws.^[40] For example, Indigenous laws and customs may be expressed through music, dance, song, ceremonies, symbols and designs, narratives and poetry. Scientific, agricultural, technical and ecological knowledge, and knowledge related to and contained in items of moveable and immoveable cultural property, also form part of Indigenous laws and customs.^[41]

7.26 In Western Australia v Ward it was argued that Indigenous cultural knowledge of land is ‘akin to a new species of intellectual property’.^[42] The inescapable problem, however, is that existing traditional laws and customs of Indigenous people do not fit neatly within the Anglo-Australian legal system’s traditional conceptualisations of privacy or of intellectual property. In Ward, Kirby J noted that ‘the established laws of intellectual property are ill-equipped to provide full protection of the kind sought’.^[43] There are many reasons for this disjuncture, beyond obvious differences in the relevant underlying norms. For example, unlike Anglo-Australian law, for some Indigenous groups law can be confidential or private.^[44] Similarly, the traditional laws and customs of Indigenous groups often delineate between individual and group rights in a way that differs from the Anglo-Australian legal system. It has been observed that:

Indigenous legal systems revolve around group rights and group control, whereas the Australian legal system has developed out of a more individualistic tradition, with greater emphasis on personal rights and freedoms.^[45]

7.27 Several Australian Government inquiries have acknowledged the vexed question of how to protect adequately Indigenous cultural rights. In 1986, the ALRC released The Recognition of Aboriginal Customary Laws (ALRC 31). In that Report, the ALRC acknowledged that the sale of Aboriginal paintings and objects could breach Aboriginal customary laws.^[46] In the ALRC’s 1995 Report, Designs (ALRC 74), the ALRC expressed the view that the protection of traditional Aboriginal and Torres Strait Islander designs raises special issues ‘that should not be dealt with in isolation from other issues arising out of Aboriginal art, culture and heritage’.^[47] In both inquiries, the ALRC did not make recommendations on this issue, but noted that other government bodies were examining the matter.^[48]

7.28 In 2007, an inquiry into the Indigenous visual arts and craft sector by the Senate Standing Committee for the Environment, Communications, Information Technology and the Arts considered some of these issues.^[49] The Committee made several recommendations relating to the Indigenous arts sector, including that, ‘recognising the complexity of the issues in this area, the Commonwealth introduce appropriate legislation to provide for the protection of Indigenous cultural and intellectual property rights’.^[50]