I note, with interest, that the policy document, The Protection of Indigenous Knowledge through the Intellectual Property System, has paid particular heed to the experience of Australasia in dealing with traditional knowledge: “Lessons can be learned from New Zealand and Australia, which are both good examples of countries whose courts use the common law to protect traditional knowledge.”

I would comment that the Australian experience has been a mixed one. It is true that von Doussa J of the Federal Court of Australia has shown judicial innovation in a number of cases – most notably, the “Carpets” case, and the “Bulun Bulun” decision. However, there have been limits to the extent of judicial innovation in Australia – as illustrated by the refusal of the High Court of Australia to recognise the linkage between native title rights and traditional knowledge in the case of Ward v Western Australia. The case law has demonstrated that there is a need for a more fundamental legislative reform of laws with respect to traditional knowledge in Australia.

Unfortunately, the Australian Parliament has thus far failed to heed the recommendations of Terri Janke’s landmark report, Our Culture, Our Future. The old Howard Conservative Government showed little interest in the protection of traditional knowledge. A Federal bill on the recognition of communal moral rights in respect of copyright works created by Indigenous communities has not been implemented. Thus far, there have only been piecemeal reforms. The authenticity trade marks scheme, which was set up in 2000, has collapsed. The Federal access to genetic resources scheme does make reference to native title rights; but only provides limited remedies for non-compliance with the regime. The Queensland access to genetic resources regime fails to adequately address the issue of the protection of traditional knowledge.

The new Rudd Labor Federal Government has yet to establish its priorities in respect of the protection of traditional knowledge. It has expressed an interest in establishing a right of resale – which would have the potential to benefit Indigenous artists and communities.

Australian Aboriginal and Torres Strait Islander communities have been promoting the need for greater legislative protection of Indigenous Intellectual Property. I would note that Professor Mick Dodson of the National Centre for Indigenous Studies at the Australian National University has been instrumental in lobbying for the greater protection of traditional knowledge both in Australia and at an international level. He was influential in pushing for the protection of Indigenous intellectual property as part of the Declaration on the Rights of Indigenous Peoples 2007.

In light of this experience, I would like to commend the Government of South Africa on its initiative in developing a substantive piece of legislation on the protection of traditional knowledge. It is a shame that the Australian Government has not yet shown the same sense of purpose in developing a comprehensive regime for the protection of traditional knowledge.