I’ve been out of town for the past month and on my first day back I wandered down the local mall and noticed that the Aboriginal street artists, who have for years offered their modest wares out the front of the John Flynn Uniting Church in the middle of the mall, were missing.

I didn’t think too much of it at the time but later that day caught up with the local freebie fish-wrapper, The Alice Springs News. Apparently the Alice Springs Town Council (ASTC) decided to enforce its local by-laws and ban the Aboriginal street artists from selling their art in downtown Alice — threatening them with a fine that could eventually see them jailed.

More than 700,000 tourists — most from overseas — come through Alice Springs every year. Many of those tourists head straight to Uluru, but more than a few spend a few days wandering the dusty streets of Alice. Almost to a man and woman they want some kind of “Aboriginal experience”, and there is no shortage of local enterprises — usually owned and operated by whitefellas — willing to take their money to give them at least some version, sometimes dubious, expensive and very second-hand, of that experience.

But during May this year one of the best and cheapest options available to tourists to Alice Springs was stripped away by the ASTC.

Late in April the News ran a letter from Michael Hollow, proprietor of the Aboriginal Desert Art Gallery some distance down the mall from the John Flynn Church. Hollow’s letter, a copy of which had earlier been sent to the ASTC, was a swingeing attack on the Aboriginal street artists and urged the ASTC to take urgent action against a threat posed by them. Hollow claimed Aboriginal street artists posed such a serious threat to his business so as to be a matter of commercial “life or death” for he and many other traders.

The ASTC, like most small-town councils, is sensitive to the views of small local businesses and took prompt action. In mid-May Erwin Chlanda reported the ASTC was: “…clamping down in Todd Mall on hawkers of paintings who don’t have a permit.”

They have been “moved on” in recent days by council rangers. CEO Rex Mooney says the council is seeking to “educate people about the by-laws breach and encouraging them to follow the correct procedure and seek a council permit”. The permits cost $205 a day and vendors are obliged to have a [sic] $10 million public liability insurance.”

The following week the News ran a letter from local John Bermingham that related the experience of his two nieces with the Aboriginal street artists of Alice Springs:

Last year my two nieces (aged 8 and 11) visited Alice Springs. The highlight of their visit was buying a painting from an old Aboriginal man in the mall.

“They sat with him while he explained the painting (honey ants, waterholes, meeting places) and also had their photo taken with him. It was only a small purchase ($30) but it was a priceless experience for them.

“They paid for the painting from their own spending money.

“When they returned to school, they spoke about meeting the old man to their class, showed photos and their painting … now the youngest is studying Aboriginal history in her class. Meeting and buying art from Aboriginal artists in the mall is a unique attraction for visitors to Alice Springs and we should be promoting it, not banning it.”

Crikey spent some time yesterday morning wandering through the mall and talking to the few Aboriginal street artists still about and local gallery owners. Paul Sweeney — manager of the renowned Aboriginal-owned art gallery Papunya Tula, which operates from premises directly across from the John Flynn Church — said tourists will miss the experience.

“What the Aboriginal street artists in the Mall offered visitors to Alice Springs is the type of direct engagement that people come to Alice to get,” he told Crikey. “In the mall they can, or could until recently, walk up to a local artist, talk to them, hear their stories and walk away with a photo and a piece of original local art. These small-scale self-employment initiatives are exactly what governments are calling for now from Aboriginal people.”

Apart from the public outrage at its decision to ban Aboriginal street artists from the mall, the ASTC may have fundamentally misread it’s power to issue fines for “selling [Aboriginal art] without a permit” there. The ASTC relies on Clause 5 of the Alice Springs (Todd Mall) By-laws to enforce it’s ban. It states: “…a person shall not [without permission] in the mall … sell, or offer, display or advertise for sale, any goods or services for commercial purposes.”

“The mall” is defined as being “…the Todd Mall declared to be a pedestrian mall under section 25A of the Control of Roads Act“. Crikey understands that section only applies to the part of the mall directly in front of the business premises — that is, what used to be Todd Street.

Most of those businesses open directly onto the mall — except for the John Flynn Church and the building next door to it, both of which have large grassed areas between the building and the mall proper. These grassy areas are where the Aboriginal street artists sold their wares — and if the council issued fines to artists operating on those grassy areas those fines may well be invalid. On Crikey’s preliminary reading of the law those areas are on private property and thus may well be beyond the jurisdiction of the ASTC’s by-laws.

Crikey asked the ASTC to respond to several questions, including whether council had a response to the possible perception that its ban on Aboriginal street artists may be seen as racist. The ASTC declined to address that issue but media officer Claire Ashard said it is a “by-laws issue and not a resolution of the council”.

“To obtain a permit, a person would need to complete a ‘Todd Mall Activity’ application form at the cost of $200 per day and then lodge this at our front desk. Council has been conducting its routine ranger patrols in the mall and speaking to people regarding their breach of the by-law relating to selling without a permit. These patrols commenced prior to receiving any complaints on the issue,” she said.

“Rangers are continuing their regular patrols with the aim to help educate people of the by-laws breach and encouraging them to follow the correct procedure and seek a council permit. This is a difficult issue that is being investigated by council officers and stakeholders, including the Uniting Church, to try and find a suitable longer term positive outcome.”