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.
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...