A high-rise courtroom overlooking the shimmering blue waters of Sydney Harbour has heard arguments this week which may influence how mass-produced boomerangs and didgeridoos are presented in shops at tourist spots around Australia.
Australia’s consumer watchdog took action against Birubi Art Pty Ltd, a “souvenirs and Aboriginal art” wholesaler based in Queensland, claiming it sold 18,000 products that were made in Indonesia between 2014 and 2017.
Five types of items were identified in court documents: loose boomerangs, boxed boomerangs, bamboo didgeridoos, message stones and bullroarers.
The Australian Consumer and Competition Commission (ACCC) alleges that Birubi Art falsely promoted its wares as being made in Australia or as being handmade or painted by an Aboriginal person.
The Federal Court of Australia heard opening statements in Sydney from both sides on Tuesday and Wednesday respectively.
Arguments centred on whether a consumer who was presented with low-cost souvenirs would assume the objects were mass produced, reproduced by an Aboriginal person or produced by an Aboriginal artist.
According to the ACCC, the products carried labels including “hand-painted”, “handcrafted”, “Aboriginal art” and “Australia”.
Kristina Stern SC, acting for the ACCC, argued that such language was likely to deceive.
Nick Ferrett, a barrister acting for Birubi Art, questioned if it was the responsibility of a wholesaler how its products were presented across many different stores.
Birubi Art has strongly refuted any allegation that its products are 'fake'.
Selling or importing imitations of Aboriginal cultural objects is not illegal, but it could breach consumer law if they are falsely claimed to be authentic at the point of sale.
Arguments also focused on whether the court should makes its decision based on the assumptions of a hypothetical 'reasonable person' or a spectrum of people ranging from 'the most gullible to the most educated'.
Photographs of products and shop displays were tendered as evidence.
Witnesses included two ACCC investigators who bought some of the products in Fremantle and Darwin, a solicitor who took photos of souvenir shops for Birubi Art and the company’s managing director Ben Wooster.
The ACCC are seeking declarations, pecuniary penalises, injunctions, corrective notices, compliance program orders and costs.
Justice Melissa Perry will deliver her findings at a later date.
'It should never be fake'
Watching proceedings in the public gallery was BiBi Barba, an Indigenous artist whose artwork was allegedly reproduced without her permission and put on display at a Polish hotel in a separate case.
"People are trying to erode traditional knowledge and traditional cultural expressions that is just so unique to us," she told NITV News.
The Fake Art Harms Culture campaign, which launched in 2017, estimates that up to 80 per cent of stores that sell Aboriginal style objects are selling fakes often imported from Asia.
“Every person who buys a piece of culture they have right as a consumer to say, ‘I want to buy the real thing because I’m buying a piece of your culture’,” Ms Barba said.
“It should never be fake.”