Message from Mark Leibler AC
Constitutional recognition
Arnold Bloch Leibler is committed to working alongside Aboriginal and Torres Strait Islander Australians towards
the establishment of a constitutionally enshrined advisory First Nations Voice to the federal parliament - the
model of constitutional recognition presented in the Uluru Statement from the Heart, following the most
comprehensive consultation process undertaken with Indigenous people in the nation’s history.
For more than a decade, senior partner Mark Leibler has played a national leadership role in the pursuit of appropriate recognition of Australia’s First Peoples. He has served as the co-chair of both the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples and the Referendum Council, which culminated in the National Constitutional Convention at Uluru in May 2017. Mark has continued to advocate for the First Nations Voice ever since, both publicly and behind the scenes, with the full backing of the Partnership and Arnold Bloch Leibler as a whole.
Twelve months ago, in December 2021, Mark featured on the front page of The Australian newspaper, welcoming the final report of the senior advisory body overseeing the co-design of a First Nations Voice: “It seems to me that the co-design process, overseen by Marcia Langton and Tom Calma, has landed us in the best of all possible worlds at this point in time.”
Indigenous Voice co-design landed “in the best of all possible worlds”: Mark Leibler
21 December 2021
In an article featured on the front page of today’s Australian newspaper, senior partner Mark Leibler welcomes the report of the senior advisory body overseeing the co-design of an Indigenous Voice to federal parliament.
Immediately following the change in government in May 2022 and the new Prime Minister’s commitment to hold a referendum on the Voice in his first term, Mark wrote an opinion article published in The Australian that explained why he believes “the political environment we have in Australia right now offers the ’sensible centre’ of politics an ‘it’s time’ moment to facilitate the nation’s embrace of a constitutionally protected Indigenous Voice to parliament”.
Mark backed the position taken by newly appointed Indigenous Affairs Minister Linda Burney that she would take each of the steps necessary to optimise the chances of a resounding success.
“I can see no sound political reason for the Opposition under Peter Dutton to be anything other than helpful,” he wrote in the same article. “Mr Dutton knows there’s solid support for the voice within his party and its traditional support base. It’s an opportunity for him to soften his image and reengage disenchanted Liberals, including those now sitting on the cross-benches. The far more politically astute move for the Opposition would be to work with the government to ensure the Greens are not permitted to squander this historic opportunity […] the coalition deserves to co-own a successful referendum on constitutional recognition. They should proceed, without hesitation, to claim their fair share of the political high ground.”
“It’s time” moment for Indigenous Voice
30 May 2022
In an opinion article published in today's edition of The Australian, senior partner Mark Leibler explains why the political environment we have in Australia right now offers the sensible centre of politics an “it’s time” moment to facilitate the nation’s embrace of a constitutionally protected Indigenous voice to parliament.
A more recent article published in The Weekend Australian on 23 July 2022, authored by Mark, weighed up arguments for and against providing more detail on the form and function of the First Nations Voice before taking it to a referendum. Mark explained why Australians should not be asked to vote on a specific model of the Voice, primarily because whatever model is established following a successful referendum will require adjustments by the parliament from time to time, as circumstances change. “With a new government and Prime Minister, brought to office with a clear mandate to take the question of an Indigenous voice to the people, the development of a more detailed model would lead to only one eventuality – a devastating No vote. Those who argue otherwise are, consciously or unconsciously, motivated by a desire to sabotage the process.”
Want a voice? Referendum should ask a simple Yes or No question
25 July 2022
Writing in The Weekend Australian, senior partner Mark Leibler says he is in full agreement with the government that Australians should be asked to vote on whether there should be an Indigenous Voice to Parliament, not on a particular model.
Arnold Bloch Leibler’s advocacy around the First Nations Voice throughout 2022 culminated in a special event at our Melbourne offices on 25 November, with guest of honour Senator Patrick Dodson representing the Prime Minister - in his role as Special Envoy for Reconciliation and Implementation of the Uluru Statement from the Heart.
As part of the event, Mark facilitated a panel discussion with Senator Dodson, Liberal Senator Andrew Bragg, former High Court judge Kenneth Hayne and Aboriginal lawyer and advocate Teela Reid. The event, designed by Mark to shift the dial towards a successful referendum, generated extensive media coverage.
Watch the event summary video here.
“The more you look, the less there is to see”
28 November 2022
Addressing a panel discussion, hosted by senior partner Mark Leibler and public interest partner Peter Seidel, Ken Hayne demolished the suggestion made by some commentators that, if the constitutional amendment released by the Prime Minister at Garma in August is made, litigation will “derail the intended effect of the amendment or may derail the ordinary workings of parliament and the executive”.
Discussion with Teela Reid
Prior to the panel discussion on constitutional recognition and the Voice to Parliament, members of the AISN participated in an informal Q&A session with Wiradjuri and Wailwan woman Teela Reid.
Speaking frankly, Teela canvassed the challenges regarding the upcoming referendum for the Voice to Parliament, and encouraged those working in the legal profession to ‘step-up’ and arm people with correct information about the Voice.
The discussion covered various topics including the role that social media plays in advocacy and the potential role it could play in the upcoming referendum, including in relation to the spread of misinformation. Teela also explained why the Uluru Statement advocates for Voice, then Treaty, then Truth, and reflected on the decades of inquiries and commissions into wrongdoing and how they have, to date, resulted in little to no practical change.
Perpetual copyright for Namatjira Legacy Trust
In 2017, Arnold Bloch Leibler successfully negotiated the return of the copyright in the lifetime works of iconic Aboriginal artist Albert Namatjira to our client, the Namatjira Legacy Trust, which represents the artist’s children and grandchildren.
Widely recognised as the founder of the Aboriginal art movement, Namatjira died in 1959 and, in contravention of the artist’s will, the Territory Government sold the copyright to a small, non-Indigenous company in 1983, without the family’s knowledge. Having secured the return of the copyright, in 2018 Arnold Bloch Leibler went on to broker a landmark compensation deal between the Namatjira descendants and the Northern Territory Government.
The third pillar of Arnold Bloch Leibler’s pursuit of justice for the Namatjira family is focused on sweeping legal reform that would give the family perpetual ownership and control of the pioneering painter’s copyright.
This year, in a submission to the Productivity Commission Inquiry into Aboriginal and Torres Strait Islander Visual Arts and Crafts, Arnold Bloch Leibler has argued that there is a deficiency in the Copyright Act 1968 (Cth) – specifically, regarding the limitation on the period of copyright protection, which unfairly impacts Aboriginal and Torres Strait Islander artists and other stakeholders. Under the current legislation, the duration of copyright in artistic works is limited to the life of the author plus 70 years. The traditional rationale in limiting the duration of copyright is to strike the appropriate balance between the monopoly rights of the copyright owner and the public interest in being able to freely exploit the works originally subject to copyright.
Arnold Bloch Leibler explained that the historical and cultural significance of many Aboriginal and Torres Strait Islander artistic works means that the limitation on the period of copyright protection is more likely to deliver inappropriate or unfair outcomes. The story of Albert Namatjira and the Namatjira Legacy Trust offers a unique opportunity to address this deficiency by extending the period of copyright protection in perpetuity. In the longer-term, this reform should extend to the works of other Aboriginal and Torres Strait Islander artists who are identified as having suffered similarly unfair outcomes.
Arnold Bloch Leibler’s submission, prepared by senior partner Mark Leibler, copyright and IP partner Zaven Mardirossian and lawyer Laura Susa, generated strong media attention, including an article in The Australian, and coverage on ABC Breakfast and online.
Namatjira story demonstrates case for copyright reform
22 August 2022
An article published in today’s The Australian covers a submission by Arnold Bloch Leibler to the Productivity Commission, recommending “sweeping legal reform” that would give the family of revered painter Albert Namatjira perpetual copyright in his lifetime works.
Reflection by Laura Susa, lawyer, who worked on the development of the submission:
“By way of background, in 1983, despite the express wish contained in Albert Namatjira’s will for his assets (including the copyright in his works) to be passed to his family, the Public Trustee for the Northern Territory wrongfully sold the copyright in his works to Legend Press Pty Ltd for $8,500. Albert Namatjira’s family was subsequently denied ownership or control of the copyright in his works for a period of over three decades – that is, nearly half of the statutory duration of the copyright. During this period, Legend Press Pty Ltd – for unexplained reasons – sought to suppress the use of the copyright by educational, philanthropic and public organisations. This conduct had the tragic effect of obstructing public awareness of Albert Namatjira's works amongst current and future generations of Australians. The submission reasons that an extension of the copyright duration is appropriate and fair in this instance so as to permit the family and the broader national and international community to properly benefit from the asset over future generations, and to reinvigorate the public’s awareness of Albert Namatjira’s famous works.
The submission was viewed as an opportunity to share Arnold Bloch Leibler’s experiences and learnings from its previous pro bono work for the Namatjira Legacy Trust. In 2017, Arnold Bloch Leibler secured the return of the copyright in the lifetime works of Albert Namatjira to the Namatjira Legacy Trust. Arnold Bloch Leibler then proceeded to negotiate a landmark settlement with the Northern Territory Government. The settlement was deeply significant to Namatjira's descendants, not just in terms of the dollar amount, but in terms of having put to rest a very painful aspect of the family’s history. This outcome was achieved through the work of Mark Leibler AC, Zaven Mardirossian, public interest and native title Partner Peter Seidel and senior associate Gabriel Sakkal.”
Allegations against Hawthorn Football Club about treatment of First Nations players
In September 2022, findings of a report commissioned by the Hawthorn Football Club were publicised, containing allegations from First Nations players about racism they experienced during their time at the club.
The allegations include that the club bullied and relocated First Nations players from their homes and had their phone numbers changed so they could fulfil their potential as AFL players, used intimidation tactics to separate couples during the early stages of partners’ pregnancies, as well as encouraging one player to instruct his partner to terminate a pregnancy.
Alastair Clarkson (recently appointed North Melbourne coach) and Chris Fagan (Brisbane coach) were among the group of the club’s coaches at the time. Clarkson, Fagan and others named in the allegations have strenuously and repeatedly denied all claims.
An independent panel has been established by the AFL to investigate the allegations of “racist behaviour, bullying and other inappropriate conduct” by Hawthorn employees, particularly towards First Nations players, between 2008 to 2016. The panel will be led by Bernard Quinn KC, joined by Jacqualyn Turfrey (Palawa woman and barrister), Tim Goodwin (Yuin man and barrister) and Julie Buxton (barrister).
ABL is proud and honoured to represent on a pro-bono basis various of the former First Nations players and their families in this investigation. Recently, our clients have agreed to cooperate with the AFL on the conditions outlined in their two open letters to the AFL, including that the league commits “to independently look at its own failings and promises to all First Nations families it will do better as a result”, as well as calling for a broader review of racism in the AFL in acknowledgment that this “cannot be dealt with by a narrowly targeted investigation on a club-by-club, or crisis-by-crisis, basis”.