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Thursday, 20 August 2009
Page: 8605


Mr ZAPPIA (12:07 PM) —I speak in support of the Resale Royalty Right for Visual Artists Bill 2008. Unlike most coalition members opposite and particularly the member for Moncrieff, who gave such a pretentious performance on 19 March this year, the Rudd government and, in particular, the Minister for the Environment, Heritage and the Arts are prepared to stand up for and to support the rights of Australia’s 20,000 visual artists. Over almost 12 years in office, coalition members gave lip-service to the arts community but delivered nothing.

I listened to the comments of the member for Pearce a moment ago and I accept her sincerity in wanting to support artists in this country. But the fact of the matter is that for 12 years coalition members had the opportunity to do so—and I will come to that in some detail in just a moment—but did not. I also accept her comments about the fact that this bill will mean that it will be 20 years before some artists gain any benefit. Again, I believe that is possibly the case. However, had we started 12 years ago with this kind of legislation, we would now be 12 years into the 20 years that the member for Pearce referred to. It is my view that the sooner we get legislation into place the sooner artists will be able to benefit from it.

The new-found empathy of some opposition members for Australia’s visual artists can only be described as sheer hypocrisy and desperate political opportunism when one actually looks at the track record of coalition members when they were in government. On this issue, the facts not only speak for themselves but certainly tell a different story to what the member for Moncrieff would have had us believe when he was speaking on 19 March in the House.

Let me refer to some of those facts. In March 2004 Labor Senator Kate Lundy introduced a private member’s bill simply because coalition members would not act on this issue. The bill was unsuccessful and was clearly not supported by the coalition members at the time. And so, not only did the coalition members not make the move themselves to introduce the legislation but when it was introduced by Senator Kate Lundy, they did not support it. They voted against it. It is one thing to come into the chamber now and pretend that you are the friend of Australia’s artists, but it is another thing—when your vote counts—to actually not support it.

I give another example. In May 2006, after sitting for four years on the 2002 Contemporary Visual Arts and Crafts Inquiry report, the coalition government decided against the introduction of resale royalties, which they said, ‘would adversely affect commercial galleries, art dealers, auction houses and investors’. The member for Moncrieff—who is the opposition spokesman on this matter and who I referred to as having made a dramatic speech in the House on 19 March—was a member of the House at the time. Where was he in standing up for the rights of artists in 2006?

It is clear that on this issue of resale royalties coalition members are on the side of auction houses, commercial galleries, art dealers and investors, and not on the side of Australia’s visual artists. They had the opportunity to support Australia’s visual artists when they were in government and they failed to do so. The coalition’s view is: let others profit from the work of artists, but not the artists themselves.

The other point I make about the response to this bill by the member for Moncrieff is that for all his criticism of the bill—and he had a lot to say and made much criticism of it—not once did he make a suggestion about how it might be improved and not once did he put forward any amendments to the bill. He simply attacked the government on it. Why? Because when it comes to form on this issue, the opposition has form in not supporting a resale royalty scheme for artists within this country.

The Rudd government and the Minister for the Environment, Heritage and the Arts, Mr Garrett, made an election commitment to bring in a resale royalty scheme for Australia’s visual artists in the 2007 election—and the minister for the arts is getting on with delivering on that promise. This bill flows from the Berne Convention of 1971. The bill is intended to give effect to article 14 of the Berne Convention for the protection of literary and artistic works. I want to quote part of article 14 of the Berne Convention:

The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.

There are two other parts but that is the critical part that I want to quote. Australia acceded to the Berne Convention on 28 November 1977. That is some 32 years ago and we still have not acted to implement that section of the Berne Convention. To date, 54 countries out of 164 contracting parties to the Berne Convention have introduced a resale royalty right, including the UK and other European Union members. While those schemes vary between nations—in the rate of royalty paid, the minimum threshold level, how the schemes are administered and other administrative matters—the schemes all uphold the principle that artists should retain an interest in future sales of their work.

In short, under the scheme, a five per cent royalty will be paid to artists, commencing with and from the second sale after the scheme comes into effect. The five per cent royalty payment applies to art work resold for $1,000 or more. The royalty remains in place and continues to apply for 70 years after the death of the artist, with all royalties then paid to the beneficiaries of the artist’s estate. All royalty payments will be collected and distributed by a central administrative agency.

Importantly, under the Berne convention of 1971, reciprocal rights must exist in Australia for overseas artists if Australian artists are to receive royalties from sales in overseas countries. That is one of the critical things about this bill, because some of the works of our own artists are sold offshore and then resold. We cannot enjoy those reciprocal rights unless we have our own legislation in place—so the artists clearly miss out.

This legislation was referred to the House Standing Committee on Climate Change, Water, Environment and the Arts on 28 November 2008. The primary purpose for referring the bill to the committee was the that resale royalty payments would not commence until the second sale. The committee subsequently received and considered some 40 submissions. A public hearing, which I attended, was held on 6 February 2009, where evidence from 20 witnesses was presented. The committee reported back in February 2009 with 10 recommendations. I believe that all but one of those recommendations are non-contentious and quite properly respond to matters raised during the course of the inquiry.

The one matter that is still of concern to artists is the matter relating to the commencement of the proposed scheme. Under this legislation, royalty payments to artists commence after the secondary resale or transfer of ownership of the artworks. In other words, the scheme will not be retrospective. The particular issue in question is clause 11 of the bill, having regard for section 51(xxxi) of the Constitution, which deals with the question of acquisition of property on the other than just terms. If I can just quote that section of the bill:

If an artwork exists on the commencement of this Part, there is no resale royalty right on the first transfer of ownership of the artwork on or after commencement, even if the transfer of ownership is under a commercial resale.

I am aware that there have been opposing legal views on this matter. I have read some of those legal views. I am not a lawyer, but I certainly accept that there is a difference of opinion about the interpretation of section 51 of the Constitution and whether section 11 of the bill contravenes section 51 of the Constitution. It is true that the committee sought further legal advice in respect to that. But, having sought further advice, it is also true that the committee did not oppose the bill; it simply sought further advice. At no point within the recommendations of the committee did the committee oppose the bill because we did not have that advice or because we did not accept that that may well be a concern that needed to be dealt with. We heard from the minister’s department in respect of the concerns about clause 11.

The point I emphasise here is that, whilst it was accepted and acknowledged that section 11 was a contentious matter, it nevertheless did not cause the committee to come to the conclusion that the bill should be opposed in its present form because of section 11. What I can say, however, is that as a result of the inquiry that was conducted by the standing committee there is widespread support for the bill and that the bill does take into account the interests of a very wide cross-section of artists. The bill has been carefully worked through to ensure that it is as fair and equitable as possible. It is my view, having listened to the submissions, that the bill does do that, and with the amendments that have been proposed by the committee—which I understand the minister is looking at—I believe that the bill accommodates pretty much all of the issues that ought to be accommodated as a result of the public inquiry that we went through.

Artists have been calling for over 25 years for a resale royalty scheme in Australia. I know that part of the reason why a resale royalty scheme was not introduced was the concern expressed by gallery owners, auction houses and art dealers that a resale royalty would add to the cost of the artwork and therefore dampen sales. There is no evidence whatsoever that that would happen. If you look at what happened when the 10 per cent GST was introduced or if you look at the buyer’s premium of anywhere between eight and 20 per cent that is included on artwork, it is difficult to accept the proposition that the five per cent will dampen sales, because neither the GST nor the eight to 20 per cent charged by gallery owners, auction houses and art dealers has done that. In fact, my understanding is that, since the GST came into effect, the opposite has occurred—art sales have actually increased.

The beneficiaries of this bill are the artists, and so they should be; it is their work that creates the value. I hope that the introduction of this bill will not only encourage artists with potential to continue with their artwork but also enable some of the good artists of this country to continue with their artwork where they have been unable to do so because they cannot generate enough income. We certainly have some very, very talented artists in this country.

I will close with a brief reference to the aspects of this bill that deal with Indigenous art. One of the main groups that will benefit from this bill is our Indigenous artists. In 2007, Indigenous artists sold something like 1,578 artworks, to the value of $175 million. Indigenous artists tend to sell their work at the lower end of the market, and ultimately their works may go up enormously in value. The member for Pearce referred to Clifford Possum Tjapaltjarri’s painting Warlugulong, which sold in 1977 for $1,200 and was sold for $2.4 million at Sotheby’s in 2007. Again, who benefited from that? Certainly not the artist involved.

There are a number of other recommendations in the bill which I will not go through in detail, but I will say this: the other issues that were raised relating to the needs of and support measures for Indigenous artists were, I believe, recognised in the recommendations of the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts. I believe that those needs are real and I believe that the minister is looking at the recommendations of the committee to see what can be done to ensure that those recommendations are adopted. I welcome the recommendation also that this proposal be reviewed in three to five years.

The truth of the matter is this: the sooner we can get this bill through parliament, the sooner artists will be able to earn some additional revenue from the resale royalty. Every day we delay is delaying their ability to do so. Even with the concerns relayed to us in respect of clause 11, it is my view that it is better to get the existing bill through the system and to have it in place so that the time starts ticking away in which artists can start to get a benefit from it. For that reason, I hope that the bill will be supported by the coalition and supported by the members of the Senate. I commend the bill to the House.