The designer of the Aboriginal flag has lambasted an idea to police the authenticity of Indigenous and Torres Strait Islander art, believing it to be steeped in "institutional racism".

The Federal Government is currently undertaking an inquiry that aims to prevent exploitation of Indigenous culture through the proliferation of "inauthentic" art and artefacts.

But although many Indigenous art groups were in favour of more regulation, Harold Thomas believed that setting out a definition of what was "authentic" would place Indigenous artists in a vacuum, unable to draw on modern influences and under a "repugnant" level of cultural control.

"To stymie the issue of what is the definition of authenticity and style of Aboriginal art is dated ethnocentric racist view of today's world," Mr Thomas said.

"My view is to leave things the way they are, and individual artists and designers to be more cognisant in utilising their legal avenues and be active as modern Aboriginal Peoples."

Authenticity too subjective to define

Mr Thomas has worked in the art world for more than 50 years, designing the Aboriginal flag and winning the National Aboriginal and Torres Strait Islander Art Award in 2016.

While he noted issues with cultural appropriation and the disempowerment of Indigenous artists, he believed creating a federal law surrounding authenticity would only worsen the issue.

He foresaw circumstances where artists may face off against each other in legal battles surrounding the use and origins of widely used techniques, or were labelled "less authentic" because of modern influences in their work.

"[The art] is about the lived experience of the artist," Mr Thomas explained.

"That is why it is so important not to allow control of what is Aboriginal art to be determined by non-Aboriginals in the first instance, or any other person who may have a narrow view of what art is."

Harold Thomas pointed out that if only truly "authentic" Indigenous work was protected, it would only encompass bark paintings made with ochre colours. This bark painting is by Bill Congoo. ( Supplied: Stefan Postles )

The right to commercial success

The question of authenticity would cover not only what was painted, but who painted it and how they painted it, Mr Thomas believed.

He pointed out that many techniques used by Indigenous artists had only been employed since the 1970s, after they were introduced by Europeans.

The same went for the paints themselves, which were traditionally only natural ochre colours, but had now broadened to a much more diverse palette.

While many groups were particularly frustrated by the sale of mass-produced replicas of Indigenous artefacts, Mr Thomas said there were already legal avenues in place to address these issues, through copyright law and specialist lawyers.

He said introducing further laws would simply create a "huge mess" of legislation that was impossible to enforce.

While he acknowledged exploitation of certain designs was rampant, he said this would always happen across commercial merchandising and clothing industries — and pointed out few designs had been plagiarised more often that the Indigenous flag he designed, which is only supposed to be manufactured by one company.

He also pointed out that, just like any other creator, Indigenous artists had the right to make money by merchandising their art, whether that was done locally or overseas.

"The more Aboriginal people control their own destiny and are free to express their particular art from the far reaches of our country to the inner suburbs of a city, the better off are the First People," he said.

"Exploitation and protectionism is the underlying thread to this enquiry."

Harold Thomas questioned whether contemporary techniques such as screen printing or lino printing would be deemed "authentic". ( Supplied: Ingrid Johanson )

Cultural appropriation causing "harm and disrespect"

But Mr Thomas's was different to that of other Indigenous artists and groups who made submissions to the inquiry.

Balang Lewis, a well-known Indigenous actor and musician who died this week, had made a statement as part of the Arnhem, Northern and Kimberley Artists Aboriginal Corporation (ANKA) submission, describing his powerlessness to stop the "fake" art trade.

"I got off the plane in Sippo, in Amsterdam, and I had my instruments, my didgeridoos; and on the same flight a guy got on from Bali and he had about 12 bags of fake art on didgeridoos," he said.

"A huge bag with about 20 of them, all sold at 175 pounds each, which he took to England.

"And you know what? That's the first time that I have felt helpless. Because I had no law to give me strength to protect what's ours."

Donna Nadjamerrek, an ANKA director in Arnhem land, said she was "very sorry" about what "fake" art was doing to her heritage.

"It is very important that people can continue to practise their culture and they can do this by reaching their families and selling genuine Aboriginal art in their own Art centres," she said.

"We have to keep representations of our cultural knowledge in our own hands as our art is connected to the land, the sea and the plants."

Many groups are calling for the sale of "inauthentic" Indigenous items, mass-produced overseas, to be banned. ( Supplied: Indigenous Art Code )

Many groups, including the Maningrida Arts Centre, Darwin Aboriginal Art Fair Foundation, ANKA, and the Warakurna artists, said current laws to protect artists were inadequate — and pointed to the large amount of Indigenous artwork made overseas, with no accreditation to the original artists, that were for sale in Australian souvenir shops.

They called for changes, so the definition of "authentic art" would ensure it was created by someone who is recognised as Aboriginal or Torres Strait Islander.

Some also added that the reproductions of artwork must be licensed and must attribute the original artist.

The ANKA submission called on Federal Government to change the Australian Consumer Law, to "ban the distribution and sale of unauthentic Aboriginal-style objects in Australia at all levels of the supply chain".

It also wanted recognition that traditional Aboriginal law exists, which operated concurrently with mainstream Australian law.

As the Maningrida Art Centre explained in its submission, appropriate cultural authority was required of an individual artist to depict certain stories.

"Not every Aboriginal person in this region has the right and permission to make and create all stories and images," general manager Michelle Culpitt stated.

"Locally, if a person makes a work that they do not have the cultural authority or permission to make they are held to account by community members, but externally they have no power or recourse to hold to account people making works without permission."

The Darwin Aboriginal Art Fair Foundation also brought up the strict cultural protocols within family groups which stipulated who had the right to paint certain designs and the colours that could be used.

It believed copyright law should be extended to acknowledge this cultural expressionism.