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Thursday, 19 March 2009
Page: 3347


Mr CIOBO (12:55 PM) —How extraordinary that we find ourselves debating the Resale Royalty Right for Visual Artists Bill 2008 today. I say ‘how extraordinary’ because it is an indictment on the government’s legislative program that this bill is before the House today for debate. As recently as 10 minutes ago, the Minister for the Environment, Heritage and the Arts, the man who has carriage of this legislation, assured me that this bill would not be up for debate today. Ten minutes ago the government said, ‘No, the bill’s not going to be on for debate,’ and now here we are 10 minutes later forced to discuss this bill. It is even more extraordinary because the legislation that is now before the House is legislation into which the minister sought an inquiry from the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts, and yet the government has not even responded to that. So let us just look at this process and the completely rushed and bungled way this government has handled the resale royalty right.

Initially, we had the minister for the arts come into the chamber with a bill that was already considered to be largely unworkable. There were faults being pointed out by intermediaries such as galleries and artists’ representatives and by the opposition. So we sought, before the bill was even introduced into the House, to outline some of the concerns that we had about the way in which the bill had been structured to provide a resale royalty right to artists.

That notwithstanding, the Minister for the Environment, Heritage and the Arts came into the House and introduced the bill. He immediately referred the bill to the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts for an inquiry into how workable the bill would be. That committee, I am pleased to say, in a bipartisan way put forward a number of recommendations in their report of the inquiry. The extraordinary thing is that, the inquiry having been undertaken and the report having been introduced into this chamber and noted, the minister is still yet to reply and address the concerns and the recommendations made in the report from that inquiry—the inquiry that he called for. Yet we find ourselves today debating the legislation without even a response from the minister to the inquiry that he called for.

This has been a gross mismanagement of this entire process, and it demonstrates that the government are in a complete shambles, and not only on resale royalties. When you consider this as a litmus test of the government’s legislative program, you understand that they do not know whether they are Arthur or Martha. We have had a 10-minute gap between the minister saying, ‘Oh no, that legislation’s not up for debate today,’ and having that actual debate. So I think it is high time that the government got a grip. It is high time that the government actually understood what their legislative program was and which pieces of legislation would be before the House and which pieces would not.

If you look at the nitty-gritty of this bill, it is completely unacceptable to the opposition, and I know it to be completely unacceptable to the stakeholders in the arts community who are forced to endure this completely botched effort when it comes to resale royalty rights. It is no wonder that, out there in the community, as I find when I talk to art galleries, to principals and to artists, they just shake their heads at the absolute incompetence of this government when it comes to the issue of resale royalty rights. It is little wonder that journalists scratch their heads and wonder what this government’s plan is for the arts sector when the government is so utterly useless at dealing with it.

I have spoken to many people about this bill. I have consulted far and wide and sought the advice of many people. When it comes to this legislation, I think it is time that the minister actually spoke to a few more people besides perhaps the one or two that he has been chatting to. We know that the coalition’s policy committee for the environment, climate change, water, heritage and the arts had a good long look at the matter and it has helped to inform my opinion on the legislation. Members on this side of the House actually have some idea of what it is that artists are looking for and what it is that intermediaries are seeking, as opposed to the government, which clearly is completely all at sea.

I ensured that I spoke with Tamara Winikoff, Chair of the Coalition for an Australian Resale Royalty, as well as other members of CARR, which represents some 2½ thousand artists; Robyn Ayres, Executive Director of the Arts Law Centre of Australia; Jo Cave, Chief Executive of Viscopy; Libby Baulch, Executive Director of the Australian Copyright Council; Dean Ormston, Director of Corporate Affairs for the Australasian Performing Right Association; as well as a number of intermediaries, such as Eva Breuer, Anna Schwartz, Paul Greenway and Adrian Newstead. They will all play a very important role should this very botched legislative program and structure for resale royalties that the government has in place come to pass.

I have also gone out and consulted directly with artists who have a very real interest in this matter—people like Nicholas Harding, Ken Done and Wendy Whiteley, as a representative of the Whiteley estate. I have also contacted some of Australia’s most significant collectors of art, such as Dr Patrick Corrigan, who, as many people know, is certainly a very avid collector of Australian art. Also, as part of informing my view, I have spoken to people such as Elizabeth Anne Macgregor from the MCA and, of course, Lynn Bean, the First Assistant Secretary from the Department of the Environment, Water, Heritage and the Arts about what is contained in the legislation.

I cite all of those people and those organisations as people who can give the parliament some clear understanding of the extent to and the seriousness with which the opposition takes this legislation. We remain absolutely committed—and I have said this previously in the House—to supporting the right of visual artists to have their intellectual property rights recognised. The legislation that is being debated today highlights the completely bungled and mishmash way this government is approaching it in its attempts to recognise intellectual property rights through this bill.

As I said, how extraordinary that the Minister for the Environment, Heritage and the Arts, a man who heads up a staff of 30 or 40 people, as well as having a department behind him, did not even have it together enough to know whether this bill would be debated today as little as 10 minutes before the bill came on for debate! How extraordinary that the minister can commission a House of Representatives committee inquiry into this completely botched piece of legislation and then not even have the wherewithal to respond to it before the debate takes place in the parliament! It is no wonder that the minister has sought further advice on this completely bungled attempt to recognise the intellectual property rights of our visual artists because, quite extraordinarily, this bill has been criticised from all corners of the arts community.

The only person I can find who supports this botched piece of legislation is the minister. The only person who supports what the parliament has in front of it today is the minister. There are no intermediaries, there are no stakeholder groups such as CARR, there are no collectors, there are no journalists—there is only the minister, like an island, standing there all by himself, saying, ‘This is a great piece of legislation.’ We even have opposition members and government members working together and putting forward recommendations in a bipartisan report—a report which, as I have said, the minister has not even responded to. It is no wonder that last month, Katrina Strickland, a reporter with the Australian Financial Review, said that even supporters of the principle of this bill—I would perhaps consider even myself to be one of them—have outlined how the Rudd government’s current scheme is completely unworkable. The word ‘unworkable’ has been used a lot. It has been used to describe this bill, as I said, by all stakeholders interested in this debate.

Even right now, as we are having this debate, there is disputed legal advice about the constitutional implications of section 11 of the bill, with advice contrary to the government’s assertions having been tendered to the inquiry that was concluded by the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts. I have sought, through my office in consultation with the minister’s office, to obtain the legal advice that the minister says forms the basis upon which section 11 has to remain in its current form. I have not been provided with that advice from the minister’s office. I am forced to deal with basically a ‘take us on our word’ attitude from the minister.

In the same way, the inquiry of the House of Representatives committee was also provided with, from the department in their advice, the basic attitude of, ‘You will have to take us on our word about the legal advice in respect of section 11’. It is simply unacceptable when there are so many obvious problems with this bill that the government has now before us for debate without even a response to the inquiry and without even being open, honest and transparent with all stakeholders and with me as the shadow minister about what is contained in that legal advice.

The minister has called us here now and we are having this debate in the House before the government has even received the final advice from the Solicitor-General on the constitutionality of section 11. It is no wonder that in light of such complete and total incompetence the government is in a situation where it is not engendering very much support at all from any of the stakeholders in the community that have an interest in resale royalty rights. While it is clear that the minister does not take the consequences of section 11 seriously, certainly our visual artists do. Based on an analysis of this document that they provided to me and to the inquiry, the eligibility of more than 1,600 artists hangs on section 11. On the same analysis, it advises that $30 million of a potential $35 million in royalties that would have been eligible between 1997 and 2008 will be excluded under the bill in its current form.

With 85 per cent of the royalties hanging in the breeze, you would have thought that the minister would have put some serious thought into the operation of section 11, and you would have thought, if you were reasonable, that the government would have been in a position to provide the House with conclusive advice on this issue before bringing this matter into this House for debate. Unfortunately, it is clear that there is very good reason why gallery owners, intermediaries, collectors and artists themselves are all completely disillusioned by this minister and by this completely bungled attempt to introduce a resale royalty right into the parliament.

We have a number of proposals that are still very much alive. I do not even know, thanks to the minister’s sheer incompetence on this bill, whether this bill as it sits before the parliament now is going to be ultimately what the minister takes forward. There is no threat of Senate changes here. There is no threat of what the crossbench senators are going to do this legislation. That is a whole other level again. We are still talking about whether the government has even made up its mind on its own piece of legislation. Yet, here we are, having the debate before the House. Before we even get close to its going to Senate, we have the bill before the House with absolutely no direction from the minister’s office as to whether the bill in its current form is even going to be the way the minister wants to take it forward.

How is that possibly acceptable to artists? How is that possibly acceptable to intermediaries? How is such a rushed and bungled scheme possibly acceptable even by the minister’s apparently low standards when it comes to legislation that he has to take stewardship of? Had this been the first occasion when legislation in the arts sector had been so poorly managed, you could, if you were a very generous person—and I like to consider myself a very generous person—have thought, ‘Okay, maybe things have just gotten away from the minister.’ But the problem is that this is not the first time that the minister for the arts has completely botched legislation at his fingertips.

Only a matter of months ago, in a key and crucial part of the portfolio of the minister for the arts, we saw a completely ham-fisted attempt by this minister to deal with the Australian National Academy of Music. The situation faced by ANAM, in Melbourne, one of our premier music institutions, was that almost without any notice whatsoever the minister wrote to them and said they would no longer be funded by the federal government. This is one of the elite training institutions. Perhaps the best analogy to use would be to contrast it with the Australian Institute of Sport. It is the equivalent of the AIS for classical musicians. Basically, with no warning whatsoever, the minister wrote to ANAM and said: ‘We are cutting your funding. That will take place as of the end of the year’—that is, the end of last year—‘and from the beginning of this year, 2009, you will be subsumed into the University of Melbourne and become part of its curriculum going forward.’

We all know what happened. The students at ANAM were up in arms. A whole variety of very senior people in Australia’s music community were absolutely appalled and outraged at not only the lack of procedural fairness but the very botched way in which the minister handled the whole ANAM issue. After months of intensive lobbying, including calls from this side of the House and protests at the doors of parliament over the minister’s sheer incompetence—and I have to say, Madam Deputy Speaker, it is not every day of the week that you get classical musicians protesting outside parliament; it generally takes a fair bit of bending and twisting to get a concert violinist out the front of Parliament House protesting against a minister; nonetheless, this minister achieved it—and perhaps a new record—this minister changed his mind. He said: ‘For 12 months we are going to have a moratorium. I have changed my mind. I have heard the wisdom of what the opposition has said, what the students at ANAM have said and what some of Australia’s greatest composers, musicians and performers have said, so I am going to provide a 12-month moratorium.’ We welcome that decision. But I raise this example because it demonstrates how important it is to ensure that the minister’s track record in this area is recorded and recognised.

There are a number of aspects of this bill that are worth very close scrutiny. It is not only section 11 but also the whole sustainability of the current structure that requires very close inspection. I want to put very clearly on the record the coalition’s position, which is that we support the recognition of intellectual property rights for artists. However, the coalition will reserve our approach to this legislation because we do not know its final form—and, as I said, that is before it gets anywhere near the other place. In addition to that, we will be closely watching the rollout of this legislation to determine whether or not it requires refinement in the future. I can very confidently say, on behalf of the opposition, that it will require refinement; I have no doubt about that. Quite frankly, any refinements that the coalition make to this legislation will be an improvement, because it has been so appallingly handled by the minister.

In addition to that, the entire sustainability of the minister’s approach to the current legislation needs to be closely analysed. The approach says that the government effectively will provide seed capital to the successful tenderer. Under this legislation, some $1½ million of taxpayers’ money will be used to support the successful tenderer. That $1½ million is essentially being put forward to ensure that the minister has at his disposal a monopoly controller who will exercise responsibility for the resale royalty right and the way in which the resale royalty right operates. No-one knows yet, as it will be open to tender, but it is anticipated that one of the most significant visual artists organisations—that is, Viscopy—will be the successful tenderer. With the fullness of time we will see whether or not that is the case. But one thing is clear: under the current legislation and the way in which it operates the resale royalty right will only apply upon the second resale.

What that means, and what we have seen from some of the modelling that has been put forward, is that with the second resale there will be a whole raft of sales of art on the secondary market that will not be captured. So that five per cent resale royalty right that is currently proposed in the legislation, which kicks in at the threshold of $1,000 or more, will start to flow to Viscopy. They will use a portion of it for administration, and the balance will be remitted to the artists themselves. We know that under the current proposed section 11 we will potentially see a situation where, if it is limited to the second resale royalty right, there will not be enough money being supplied back to artists and back to Viscopy to enable the scheme to be sustainable in any way. That issue remains unresolved. It was a key part of the inquiry that the government had the House of Representatives committee make. It was a key part of the recommendations that were put forward, and yet, despite this, we have the situation where we still do not know what the government’s approach is going to be.

I remain very, very concerned about this legislation. I remain very, very committed to the principle of ensuring that resale royalty rights are recognised, but let this not be lost upon all members opposite, who form the government. Let them all recognise that we are debating this legislation in the House today when, about 25 minutes ago, the minister said the debate would not be on. This completely incompetent and bungled framework has been rushed into the parliament today to provide some wriggle room for the Leader of the House so that he can get his legislative agenda in place. We know that the left-hand side of the Labor Party does not even know what the right-hand side of the Labor Party is going to do. This very botched piece of legislation will be closely scrutinised by the opposition.

Debate (on motion by Mr Albanese) adjourned.