Aboriginal people and the law - Legal Information Access Centre

2 Aboriginal people and the law 73The “Aboriginal” art Aboriginals didn't makeIn August 2008, the Australian Competition and ConsumerCommission (the ACCC) found that a QueenslandAboriginal art dealer was in breach of s 52 for misleadingand deceptive conduct. The Aboriginal art dealer sold artand artefacts made by non-Aboriginal artists and representedthem as being made by Aboriginal artists. TheFederal Court granted injunctions by consent restrainingthe art dealers, for a period of five years, from engagingin similar conduct and ordered them to pay the ACCC'scosts. The art dealers were further ordered to write tocertain purchasers of artworks produced by any of thethree non-Aboriginal artists, advising them of the courtproceedings. The art dealers also have offered the ACCCa court-enforceable undertaking that they will implementa trade practices law compliance program (ACCC vNooravi [2008] FCA 2021).In December 2009, in ACCC v Australian DreamtimeCreations Pty Ltd 263 ALR 487, Justice Mansfield in theFederal Court found that Australian Dreamtime CreationsPty Ltd (“Dreamtime Creations”) misled consumers bymaking misleading representations about artworks usingIndigenous art styles. The Court held that DreamtimeCreations breached s 52 of the Trade Practices Actwhich prohibited corporations from engaging in misleadingor deceptive conduct. The Court found that thecompany's sole director, Tony Antoniou, was knowinglyconcerned in the conduct, and made orders designed toprevent both Dreamtime Creations and Mr. Antonioufrom engaging in similar conduct in the future.In the Dreamtime Creations case, the company promotedand sold a large quantity of artworks that wererepresented to be Aboriginal art painted by an artistcalled “Ubanoo Brown”. In reality the artworks were notpainted by Ubanoo Brown but rather a person ofnon-Aboriginal descent engaged by Mr Antoniou. Artgalleries were supplied with “Certificates of Authenticity”that used terms such as “Authentic AboriginalPainting”, “Aboriginal Fine Art Canvas” and “Artist:Ubanoo Brown”. Some artworks also had stamps affixedto them that said either “Traditional Hand PaintedAboriginal Art Australia” or “Authentic Australian AboriginalArt”.Whilst the CCA will provide assistance incases where the manufacturer or retailer ismaking clear assertions that work whichwas made by non-Aboriginal artists is “Aboriginal”or “authentic Aboriginal art” itwill not assist when the circumstances arenot so clear-cut. In the Australian DreamtimeCreations case a wooden bird that was carvedoverseas, imported into Australia with theartwork added here could still be sold as“made in Australia” if the work was sufficientlytransformed through the applicationof painted decoration. Rather than assistingIndigenous crafts persons, some provisionsof the CCA make the situation even murkier.[2.540] Better protection ofIndigenous cultural andintellectual property (ICIP) isstill neededIn 1997, the Aboriginal and Torres StraitIslander Commission and the AustralianInstitute for Aboriginal and Torres StraitIslander Studies commissioned a seminalreport on Indigenous cultural and intellectualproperty rights. The independent reportby Terri Janke was released in 1999 as OurCulture: Our Future – Report on AustralianIndigenous Cultural and Intellectual PropertyRights. It found that existing cultural heritageand intellectual property laws do notadequately protect Indigenous interests, andargued that:• Indigenous Australians have a comprehensiveview of cultural and intellectualproperty as including:– literary, performing and artistic works– scientific, agricultural and technicalknowledge– language– human remains– documentation of Indigenous people’sheritage in archives, films, photographsand new media• the principles underlying ownership andcontrol of cultural and intellectual propertyrelating to communal ownership,cultural integrity and consent proceduresare consistent across Indigenous groups• Indigenous Australians are concernedabout increasing demands for Indigenouscultural and intellectual property, andthat due to these demands and to newtechnology, their cultures are being exploitedbeyond their control• current intellectual property law is inadequatein protecting Indigenous culturaland intellectual property