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Monday, 7 September 2009
Page: 8772


Ms MARINO (4:30 PM) —Unfortunately for visual artists in Australia, the Minister for the Environment, Heritage and the Arts, and of course the government’s handling of the Resale Royalty Right for Visual Artists Bill 2008, bring into question just how committed the minister and the government actually are to this legislation. This was demonstrated originally when the minister brought the legislation into the House of Representatives in March before he had responded to the recommendations from the parliamentary inquiry, an inquiry he requested from the Standing Committee on Climate Change, Water, Environment and the Arts to examine the Resale Royalty Right for Visual Artists Bill 2008, the bill I am speaking on today.

I am a member of that committee, Madam Deputy Speaker, and we were asked to examine whether the bill would achieve the stated aims and objectives as outlined in the minister’s second reading speech and supporting documentation as stated in the chairman’s foreword of the subsequent report tabled in February 2009. After extensive consultation the committee made a number of bipartisan recommendations based on a range of issues. But the two issues that were most prominent throughout the inquiry process, as noted in the foreword, were the issues of whether existing artworks should be included in the scheme from day one, and whether individual artists should be able opt out completely and have the right to collect the royalty themselves. Given the evidence received by the committee and consideration given to and provided in the recommendations, I expected the minister to respond to these, certainly prior to rushing the introduction of the resale royalty legislation into the parliament in March. It took the minister until the end of May to respond to the standing committee’s report and recommendations.

I am aware that more than 30 countries have resale royalty schemes including New Zealand and members of the European Union. The resale royalty bill deals with the complex issue of establishing a resale royalty right for visual artists that will endure both for the life of the artist and for 70 years beyond that time. It will entitle visual artists to a royalty payment on the sale price of any commercial resale of their original works of art over $1,000 or works acquired after the legislation takes effect. Effectively this bill is not retrospective and will only apply from the second resale after royal assent of the bill.

The scheme will apply to Australian citizens or permanent residents, with foreign nationals covered on a reciprocal basis. The aim is to allow visual artists to share in the commercialisation and value of their work in the secondary market, benefiting visual artists who currently derive their main creative income from the initial sale of original works, who do not have the same range of opportunities as other artists and creators such as writers and composers who can continue to earn through licensing reproductions, public performances or broadcasting of their work. This is the droit de suite of the Berne convention, literally translated as the ‘right of follower’, something very important to the majority who gave evidence and provided submissions to the inquiry.

The coalition supports the need to provide our visual artists with appropriate recognition of their intellectual and creative property rights. However we are debating this bill without the shadow minister, the standing committee, or artists and affected groups being advised of the Solicitor-General’s advice on the constitutional issues contained in the contentious clause 11 of the legislation. Why hasn’t the minister released this advice particularly given that, to my understanding, the eligibility of at least 1,600 artists is contingent on clause 11 and effectively over $30 million of potentially eligible royalties from 1997 will now be excluded as a result? The artists have every reason to request the advice that the minister received—they are the ones most affected by this decision.

Under this legislation as it has been presented, the resale royalty right will only apply upon the second resale of a visual artist’s work after this bill takes effect. The retention of the contentious provision, clause 11, in practical terms means that many artists will now have to wait one or more decades before they, or potentially their estates, see a return from the scheme. The Arts Law Centre of Australia and Viscopy both indicated in evidence to the inquiry that the average turnover of artwork is nearly 20 years. It was noted in the standing committee report that it is likely to be around 40 years before all artists will benefit from the resale of their artwork, and further that the uptake of the royalty and the benefits flowing to artists would be very slow under the proposed prospective scheme.

I note that in a Sydney Morning Herald article of 25 May, Tamara Winikoff, executive director of the National Association for the Visual Arts, is quoted as saying:

For most living artists there will be no benefit in their lifetime—

and that—

This legislation has alienated all sides of the arts sector. It is a pale shadow of what we were led to expect prior to the last election.

The standing committee recommended that:

In the event that clause 11 remains in the Bill, the Minister provide a full explanation as to the reasoning behind this decision in any revised Explanatory Memorandum and at the resumption of the second reading debate on the Bill.

And the committee chair seriously urged this consideration in her foreword of the report. The minister has very bluntly and directly ignored these recommendations by failing to include a full explanation in the revised explanatory memorandum or in his resumption of the second reading debate. Given the conflicting legal advice and evidence presented by two lawyers, Mr Robert Dearn and senior ANU law lecturer Dr Matthew Rimmer, there are very genuine reasons for the minister to provide that advice.

As a direct result of the minister’s failure to respond to this recommendation, release the legal advice on why the first resale may be unconstitutional or provide a detailed explanation in the explanatory memorandum, it is not surprising that the bill has been widely criticised by all corners of the arts sector. Katrina Strickland confirmed in the Financial Review that the scheme proposed by the minister would be next to useless for decades as this would represent the time it takes for most works to reappear on the market. Katrina also stated that even those supporters of the principle of this bill have argued the Rudd government’s current scheme is unworkable. Artists and vendors have serious concerns with the bill as presented by the minister.

Unfortunately, Australia’s arts community is becoming all too familiar with the conflicting decisions of this minister. Last year the minister attempted to close down the Australian National Academy of Music, and we have seen $9.5 million cut from Screen Australia in the recent budget in spite of the Labor government’s record debt and deficits. This is one third of Screen Australia’s total funding.

The committee’s recommendation 9 is a very important one, and states:

Given the very tight reporting timeframe for this inquiry, the Committee recommends that the Department of the Environment, Water, Heritage and the Arts undertake a review of the scheme within three to five years of the commencement date.

Given the mechanics of the collection, the conduct of the collecting society in administering the collection of royalties must be delivered in the most cost effective way possible so that royalties are directed back to the artist or their families.

Mrs Helen Ablett from the Featured Wood Gallery and museum in Australind in my electorate expressed her concerns about the scheme and how it will be administered. With the resale royalty scheme operating during the life of the artist and for 70 years beyond for his or her heirs, the ongoing role of the collecting agency, vendor and collector in the second and subsequent sales of an art piece, the tracing of transactions royalty will be difficult. I have concerns also where galleries and retail outlets purchase artworks to onsell basically on consignment. How and when the royalty is payable under this legislation needs to be very clear to all parties.

I have serious concerns for the information, education, administration and review processes in relation to Indigenous artists and Indigenous artist communities. I also refer to recommendation 4 of the committee:

In the event that indigenous visual artists do not make a will, the Committee recommends that clause 15(2) of the bill be amended by adding the following words after ‘rules of intestate succession’ - add ‘and in accordance with Aboriginal customary law.’

The government has not agreed to either this recommendation or recommendation 5 regarding Indigenous community ownership. The review is therefore an extremely important recommendation by the committee, and, thankfully for the artists, one of the few recommendations that the minister actually agreed to include in the legislation. The minister also included the committee’s recommendation that artists retain their right to elect whether or not to take part in the resale royalty scheme. This was an issue that was also raised strongly during the submissions and hearings of the standing committee by artists such as John Walker.

Given the minister’s handling of this bill I can well understand the reactions of all those in the art world. I have some extremely talented artists in my electorate. I am committed to the principle of ensuring the rights of visual artists, not only those in my electorate but around Australia, are appropriately recognised.