Australian court clamps down on the sale of fake Aboriginal souvenirs

By Stephanie Parkin, member of the Quandamooka People of Minjerribah (North Stradbroke Island), Queensland, Australia

Australian Aboriginal art and cultural expression is of major importance to Aboriginal artists and communities across Australia. “Aboriginal art” in the form of cultural expression is tied to identity, knowledge and connectedness to ancestors, land and sea country that has existed since time immemorial and which has been passed down through generations.

The existence of products in the tourist and souvenir market that mimic authentic Aboriginal cultural expression has been a problem in Australia for decades. Recently, this so-called “fake art” was considered by the Federal Court of Australia (Federal Court) in the case involving the Australian Competition and Consumer Commission (ACCC) and Birubi Art Pty Ltd (Birubi). For the purposes of this article, the reference to “fake Aboriginal souvenirs” is intended to mean souvenir products made in an Aboriginal “style” without the actual involvement or knowledge of an Aboriginal person.

In March 2018, the ACCC instituted proceedings against Birubi, a wholesaler of Australian style souvenirs based in Queensland, Australia. The ACCC is the independent Commonwealth regulator, which promotes principles of fair trade and consumer protection through the enforcement of the Competition and Consumer Act 2010 and the Australian Consumer Law.

In October 2018, the Federal Court found that Birubi misled consumers by making false representations that the souvenirs it sold were made in Australia and hand-painted by Australian Aboriginal people, when they were actually produced in Indonesia by non-Indigenous people.

Fake Aboriginal souvenirs exploit and distort Aboriginal cultural expression and interfere with the proper maintenance and transmission of Aboriginal cultural expression and knowledge.

In June 2019, the Federal Court handed down a penalty of AUD 2.3 million against Birubi for contravention of the Australian Consumer Law. Justice Perry heard evidence on the economic, social and cultural harms that fake Aboriginal souvenirs cause to Aboriginal artists and communities, and imposed a penalty that aimed to deter others in the market from engaging in such conduct. Birubi ceased trading shortly after being found guilty of misleading and deceptive conduct and went into voluntary liquidation before the penalties were handed down by the Federal Court.

Liability

Birubi was a wholesaler of souvenir products, supplying approximately 1,300 product lines of wide variety to around 150 retail outlets across Australia. The ACCC brought the misleading and deceptive conduct action in respect of five of Birubi’s souvenir product lines which contained visual images, designs and styles of Australian Aboriginal art and culture. The five product lines in question and the ultimate penalty for each were as follows:

• loose boomerangs (AUD 450,000 penalty);
• boxed boomerangs (AUD 475,000 penalty);
• bullroarers (instruments used for communicating over long distances)  (AUD 200,000 penalty);
• bamboo didgeridoos (AUD 700,000 penalty); and
• message stones (AUD 475,000) (collectively, products).

Justice Perry of the Federal Court heard evidence that from July 2015 to November 2017 Birubi sold over 50,000 of the products outlined above to retail outlets around Australia, including Sydney airport and major tourist destinations such as Bondi Beach in New South Wales and Cairns in Queensland. The products featured a range of symbols associated with Australian Aboriginal art, including visual designs and native animals, like kangaroos.

Despite being manufactured in Indonesia by non-Aboriginal people, the products were sold with words on their packaging such as “handcrafted”, “Aboriginal art”, “genuine”, and “Australia”. After considering the evidence, the Federal Court concluded that Birubi had breached provisions of the Australian Consumer Law in relation to the provenance and characteristics of products supplied. The Federal Court stated that the overwhelming impression conveyed by the products and associated implied representations was that they were made in Australia and were hand painted by Aboriginal people.

During the proceedings, the ACCC Commissioner Sarah Court stated: "It was unacceptable that Birubi sold Indonesian made products as having being hand painted by Australian Aboriginal persons when that was not the case.” She added, “The artwork, images and statements used by Birubi suggested a relationship between Australian Aboriginal people and the production of the products which did not exist."

Penalties

Justice Perry heard how fake Aboriginal souvenirs mislead consumers as to the authenticity of the products that consumers are purchasing. It was also brought to the Federal Court’s attention that Aboriginal people and communities are suffering a negative impact from fake Aboriginal souvenirs in a number of ways.

The manufacture and sale of fake Aboriginal souvenirs mean that Aboriginal artists are denied economic opportunities to benefit from their own cultural expression. It also means that Aboriginal people are deprived of the ability to control their own cultural expression in accordance with cultural protocol and respect.

The Court heard expert evidence from Dr. Banduk Marika, a Rirratjinu woman of North-East Arnhem Land in the Northern Territory. Dr. Marika gave evidence that an Aboriginal person’s right to produce specific visual designs is critical to their own identity and should be carefully controlled by that person to protect their identity and future generations Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3).

Dr. Marika explained that traditional lores exist across Australia such that a person from another clan or part of Australia, such as Central Australia, would not use North-East Arnhem land designs without permission. In the same way, Dr. Marika would not use Central Australian designs without permission because she did not know or understand the lore governing the use of those designs.

Justice Perry acknowledged that Dr. Marika gave compelling evidence as to the cultural harm that flows from the misuse of Aboriginal cultural designs that are incorporated into fake Aboriginal souvenirs, including the risk of misappropriating the art and conveying a meaning that is wrong or harmful to the actual true meaning of the design. Such misuse demonstrates that the design has been used without the permission of the design’s guardians, or appropriate family clan.

Dr. Marika reiterated that it is entirely inappropriate for a person to use a design that does not belong to them, whether they were a person from a different clan, the same clan, or a non-Indigenous person. When viewed and understood in this way, fake Aboriginal souvenirs exploit and distort Aboriginal cultural expression and interfere with the proper maintenance and transmission of Aboriginal cultural expression and knowledge.

In handing down the penalty, Justice Perry noted that “…the evidence as to the potential for direct and indirect economic, social and cultural harm occasioned by conduct of this nature for Indigenous Australian artists and more broadly for Indigenous communities is powerful”.

Law reform

While the Birubi case is important in continuing to highlight the problem of fake Aboriginal souvenirs in Australia, it also demonstrates the limitations of existing laws. One limitation is that the Australian Consumer Law is only concerned with misleading and deceptive conduct. In a practical sense, this means that souvenir products made by non-Aboriginal people incorporating Aboriginal cultural expressions does not contravene that law provided the souvenirs are clearly labelled with accurate information about where the souvenirs are made and by whom. Although such conduct may be permitted under the Australian Consumer Law, it is obviously problematic for and causes harm to Aboriginal artists and communities, as evidenced by Dr. Marika and the Federal Court.

The Birubi case is important in continuing to highlight the problem of fake Aboriginal souvenirs in Australia. It also demonstrates the limitations of existing laws.

In light of the Birubi case, stakeholders, such as the Arts Law Centre of Australia and the Indigenous Art Code and Copyright Agency, have continued to highlight problems with existing legislative frameworks and are calling for law reform.

In Australia, while there are parts of existing laws that may be relied upon in particular circumstances – these include the Australian Consumer Law and  the Copyright Act 1964 (Cth) – there is no standalone legislation that is specific to or recognizes rights attached to Aboriginal cultural expression (or traditional knowledge that lies within such expression).

The Birubi case was instituted by the ACCC at a time when a number of other actions were taking place at Government and non-Government levels to address fake Aboriginal souvenirs, including:  

• the “Fake Art Harms Culture” campaign launched in 2016 by the Arts Law Centre of Australia, Indigenous Art Code and Copyright Agency in response to calls from Aboriginal and Torres Strait Islander artists to address the misuse of their cultural expression in the form of fake souvenir products; and
• the House of Representatives’ Standing Committee on Indigenous Affairs inquiry into the “growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia”, which in its final report released in December 2018 recommended the introduction of standalone legislation to recognize Indigenous Cultural and Intellectual Property rights.

In a climate where there is renewed action and calls for reform in the area, it will be interesting to see how the ACCC responds to other cases of fake Aboriginal souvenirs in the Australian market, particularly as the ACCC has publicly committed to “addressing conduct impacting Indigenous Australians”, which is an enduring priority. What is clear is that Aboriginal and Torres Strait Islander artists and communities will, as they have done for decades, continue to advocate for proper protections and recognition of their cultural rights and expressions.