Sending a clear signal of deterrence to any business falsely claiming a link with Indigenous culture, the Federal Court handed down a $2.3 million fine to Birubi Art last week for engaging in misleading or deceptive conduct in breach of the Australian Consumer Law (ACL).
Birubi Art Pty Ltd (now in liquidation) implied that five of its wholesale product lines, including digeridoos and boomerangs, were 'hand-painted' by Australian Aboriginal persons and were 'made in Australia'. Instead, the products were found to be manufactured in Indonesia and not hand-painted by Aboriginal peoples.
In considering the appropriate penalty, Justice Perry of the Federal Court discussed the fact that whilst Birubi is in liquidation, a penalty may still have an important general deterrent effect which is particularly important in this context where misrepresentation causes economic, social and cultural harm to Aboriginal and Torres Strait Islander peoples.
The contraventions were considered serious in their extent and duration. The court determined that misrepresentations such as these were likely to enhance the cultural value and attractiveness of the products to potential purchasers. It acknowledged the consequences of uninformed consumers, predominantly tourists in this case, choosing these products over those actually made or created by Aboriginal artists.
The court also considered the fact that producing and selling art is a source of empowerment and economic opportunity for many Aboriginal and Torres Strait Islander peoples. Birubi’s conduct undermined this benefit and the current and future livelihoods of Aboriginal artists.
The court heard evidence from expert Professor Altman, highlighting the multiple roles often fulfilled by genuine art centres in remote Australia for Indigenous people including “as a meeting place, a place of work and a place of cultural gravitas where art that often depicts highly valued regional cultural and political capital is produced and stored and marketed”. Such centres also generate indirect and intangible benefits for other community enterprises such as employment and training, as well as administrative support for the proper documentation of art thereby assisting in identifying and protecting the intellectual and cultural property of artists.
It was acknowledged that the conduct of businesses such as Birubi’s, may generate consumer uncertainty in the Aboriginal art sector to the detriment of authentic sources and undervalue authentic works. In addition, such misleading and deceptive conduct causes pain, suffering, distress and offence to Aboriginal peoples who are especially susceptible to the unfair appropriation of their cultural property.
An expert also gave evidence regarding the cultural harm that is caused to Aboriginal persons who are the guardians of certain designs according to laws, Country and song lines, when those designs are misappropriated.
What emerges from this judgment is the particular vulnerability of Aboriginal and Torres Strait Islander peoples arising from inadequate protection for their cultural and intellectual property. The court said that the imposition of a strong penalty is more likely to prevent any cynical profit/risk calculus that may be taken by businesses weighing up the risks in engaging in such conduct. It will also send a strong warning to businesses that they cannot, through non-compliance with the ACL, gain a competitive advantage over those businesses which comply with their obligations.
The ACCC welcomed the result, and in the lead up to the Commonwealth Games with the influx of tourists to the country, this action is a timely reminder to businesses to ensure that any products they are selling which claim to be of Indigenous origin, made or endorsed by Aboriginal persons (or even made in Australia generally) are genuine and authentic.
Authors: Emily Booth & Thea Casey
Lisa Fitzgerald, Partner
T: +61 3 9321 9714
Dan Pearce, General Counsel
T: +61 3 9321 9841
Ian Robertson, Partner
T: +61 2 8083 0401
Blair Beven, Partner
T: + 61 2 8083 0386
Trent Taylor, Partner
T: +61 7 3135 0668
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