The Federal Court has sent a strong message to businesses who mispresent the provenance of art and souvenirs as Australian Indigenous products, recently handing down a $2.3 million fine to one Australian wholesaler.
For business owners, this case is a reminder that product claims, including those that go to a product’s provenance, must be able to be substantiated. A failure to do so could result in a consumer backlash, as well as significant fines.
Birubi Art Pty Ltd (Birubi)wholesaled around 50,000 souvenirs such as boomerangs, didgeridoos, message stones and bullroarers to retail outlets throughout Australia for more than two years.
In ACCC v Birubi Art[1], the Federal Court found that Birubi had made false and misleading representations in breach of s 29(1) and s 33 of the Australian Consumer Law (ACL) by misrepresenting:
- that those souvenirs were hand painted by Australian Aboriginal persons; and
- that some products were made in Australia when they were in fact made in Indonesia.
The products featured designs typical of Indigenous art and used words such as “Aboriginal Art,” “genuine” and “Australia.”
Shortly after the Federal Court decision in 2018, Birubi was placed into liquidation. The most recent decision[2] dealt with the penalty to be imposed on Birubi for its breaches of the ACL. In considering the appropriate penalty, the Court reiterated the principle that the purpose of ‘civil penalties is primarily if not wholly protective in promoting the public interest in compliance.’
Noting that Birubi was in liquidation, Justice Perry considered that a penalty could still have an important deterrent effect even though it may not be recovered. The Court heard evidence from expert witnesses regarding the harm which can occur to Indigenous culture from fake Indigenous Australian art. It heard evidence:
- that the total revenue generated by the Australian Indigenous visual arts sector is around $300-$500 million per annum;
- that it is estimated between 10,000-14,000 Indigenous people are engaged in paid work in the sector, but that as many as a further 80,000 are not being paid for the work; and
- of the dire employment situation for Indigenous Australians.
Justice Perry considered that ‘the deterrent effect is of particular importance in the present context given the economic, social and cultural harms to Indigenous Australians which may flow from businesses misrepresenting the provenance of art and souvenirs as Australian Indigenous art and artefacts.’
In handing down the penalty, the Court stated that while there was no ‘specific evidence of loss or damage by particular individuals or communities, 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 community is powerful.’
The Indigenous art trade is booming in Australia. While this case provides some comfort to Indigenous artists, there is support throughout the sector for specific legislation to be introduced to protect the intellectual property rights of Indigenous artists.
[1] Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595
[2] Australian Competition and Consumer Commissions v Birubi Art Pty Ltd (in liq)(No 3) [2019] FCA 996
