On 19 August 2010 the ABC’s 7.30 Report profiled a problem for Indigenous artists with the importation into Australia from China and south east Asia of very cheap 'Aboriginal-style' artifacts(i). These souvenirs are being sold to tourists throughout Australia. Much of this product is either not labeled specifically as 'Aboriginal', 'authentic' or 'Indigenous' and may even be labeled 'Made in China'. The ABC program highlighted the detrimental impact the cheap Asian product is having on the market for authentic Aboriginal product with Aboriginal craftspeople losing valuable sales as they are unable to compete with the mass-produced Asian products.
Whilst there have been some successful cases brought against commercial operators selling fake 'Aboriginal' souvenirs for misleading and deceptive conduct under section 52 of the Trade Practices Act (Cth), with the most recent example being ACCC v Australian Dreamtime Creations P/L(ii), this has been where the product has been labeled or advertised as 'authentic Aboriginal' or 'Aboriginal art' when it had in fact been created by non-Indigenous people.
Recently on a trip to Cairns I visited numerous souvenir shops in town trying to find some authentic Aboriginal products and whilst I was able to find a few souvenirs which were labeled 'Made in Australia', in most shops I was unable to find any authentic Aboriginal products. This raises the question as to whether tourists understand that what they are buying is not authentic and whether any of these 'Aboriginal-style' products would fall foul of Australian laws dealing with misleading and deceptive conduct. It seems most unlikely that a section 52 action would be available where the product is clearly labeled 'Made in China', which is the case in many instances.
The Australian Dreamtime Creations Pty Ltd case also illustrated the limited protection provided under section 53(eb) of the Trade Practices Act (Cth) which prohibits making a false or misleading representation concerning the place of origin of goods. In this case it was alleged that a wooden bird carved in Bali and sold on eBay infringed this section by representing not only that the bird was made by an Aboriginal artist but also that it originated in Australia. Whilst the court did not believe people would even consider this issue, Mansfield J went further stating:
those artworks including the carved wooden bird were substantially transformed by being painted in Australia. There was in evidence an example of the carved wooden bird, unpainted (it is then purely a flat white in colour). The difference is significant. As an unpainted object, it is quite unappealing. The shape itself seems to lack definition. The painting makes the object quite a different one: the shape emerges as clearly defined, and the colouring gives the object a real life and attractiveness. I think the description “new and different goods” is an appropriate one, even though fundamentally the shape itself does not change. It is, in a bland sense, and remains a carved wooden item but the qualities which make it an attractive object emerge only after it is painted.(iii)
The conclusion that must be drawn is that wooden artifacts which are carved overseas, imported into Australia with the artwork added here may still be able to be sold as 'Made in Australia' if they are sufficiently transformed through the application of painted decoration. Rather than assisting Indigenous craftpersons, it probably makes the situation even murkier.
The issue of the lack of protection for authentic Aboriginal crafts and the flooding of the market with cheap Asian imports needs to be considered by Government as part of a comprehensive review of the laws relating to protection of Indigenous intellectual property and cultural expressions (see related article on the Wandjinas of the Kimberley). In 2009 the Australian Government not only endorsed the implementation of the Declaration on the Rights of Indigenous Peoples in Australia but also ratified the Convention on the Protection and Promotion of the Diversity of Cultural Expression; the latter not only encourages Governments to implement measures to promote cultural expressions (article 7) but also to take special measures if cultural expressions are under threat or need urgent safeguarding (article 8). The symbolism of ratifying these instruments is significant so let's hope that they provide a basis for taking steps to improve both the promotion and protection of authentic Indigenous arts and crafts in Australia in the Government's second term.
Robyn Ayres is the executive director of Arts Law.
i. ABC 7.30 Report 19 August 2010 http://www.abc.net.au/7.30/content/2010/s2988038.htm
ii.  FCA 1545 where defendant found guilty of for misleading and deceptive conduct.
iii. ACCC v Australian Dreamtime Creations Pty Ltd  FCA 1545 at para 90