A company which sold more than 50,000 pieces of fake Indigenous art has been handed a $2.3 million fine it is unlikely to pay.
Birubi Art Pty Ltd was handed the penalty by the Federal Court on Wednesday after it determined the company breached consumer law by claiming it sold “authentic Aboriginal Art” that was made in Indonesia.
However, because Birubi has since been liquidated it’s unlikely to pay the fine, with the ACCC instead chasing the penalty to send a message to everyone else.
“Despite the unlikelihood of the ACCC recouping any of the penalty funds, there is a clear need for a penalty that will deter other businesses from engaging in similar conduct,” an ACCC spokesperson said in a statement.
ACCC commissioner Sarah Court said on Wednesday the unpaid penalty “sends a strong message”.
Meanwhile, Birubi’s former director Ben Wooster has found greener pastures, starting a new wholesale business selling many of the same products.
Gifts Mate, is upfront with customers about provenance but nevertheless styles its Indonesian-made products as Indigenous art.
The situation has prompted the Indigenous Art Code, Copyright Agency and the Arts Law Centre of Australia to issue a joint statement calling for tougher laws to protect First Nations artists from fake products.
Up to 80% of Aboriginal souvenir products sold are fake, the groups said.
“While the ACCC acknowledges the cultural harm caused, it must be made clear that Birubi (in liquidation) were not on trial for abuses of Indigenous cultural and intellectual property and producing ‘fake art’,” the groups said on Wednesday.
“There is no law in Australia that says you can’t make fake art and you can’t misappropriate Aboriginal and Torres Strait Islander culture.”
“The judgment, although welcome, does not make it illegal to sell fake Aboriginal Art as long as misleading representations are not made about the authenticity of the products,” the groups said.
“Birubi could have sold the same products if, for example, they were labelled made in Indonesia and did not claim to be genuine. Fake art can continue to be sold as long as misleading claims about authenticity are not made.”
Wooster is also part-owner and director of WAM Clothing, a company which has been sending cease and desist letters to companies which use the Indigenous flag, including the AFL.
Luritja artist Harold Thomas, who holds the copyright for the flag, granted the non-indigenous company the license late last year.
The letters have sparked a public conversation about the legal rights to use the flag, even pricking ears in Canberra.
As The Guardian has previously reported, minister for Indigenous Australians Ken Wyatt and shadow Indigenous affairs minister Linda Burney have both called for flag copyright situation to be resolved.
SmartCompany contacted both Wyatt and Burney for comment on Wednesday, asking for their view on the situation and whether they support calls for tougher art laws.
A response was not provided by either MP before deadline on Thursday morning.
The ACCC did not mention Wooster’s new gig on Wednesday but did say it will be monitoring the Indigenous Australian art industry.
“The ACCC took this action because the misleading conduct has the potential to undermine the integrity of the industry and reduce opportunities for Australian Aboriginal peoples,” Court said.
“The ACCC will be monitoring traders of Indigenous Australian style art and souvenirs to ensure confidence in the Indigenous Australian art industry. We will take action against those who mislead consumers about the nature of their products.”
SmartCompany contacted Wooster for comment on Wednesday but did not receive a response prior to publication.