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Thursday, 26 November 2009
Page: 9005


Senator MILNE (12:53 PM) —I rise to comment on the Resale Royalty Right for Visual Artists Bill 2009 and to note that it does introduce a long-sought-after means of providing artists with financial benefit from their work into the future. The Greens certainly believe in supporting and promoting Australian artists and protecting their work. However we do note that this bill is well and truly overdue. It was introduced into the House of Representatives last year and into this chamber in September, and now it is being raced through on the last day of sittings when it warrants a lot more discussion.

The main problem with this bill is clause 11. This relates to the second sale for existing artworks. As to when the scheme applies to existing artworks, under the legislation clause 11 provides for royalties on the artwork in existence at the time the scheme commences to be payable only on the second resale. Senator Ronaldson just indicated that that was the problem he had with the bill, for all the same reasons. He has obviously got the same information. Research has shown that of work sold in 1998, for example, only six per cent had been sold again by 2008. That analysis also showed that if the resale royalty scheme had been implemented in 1998 then it would have generated only 13 per cent of the income it would have generated if the scheme applied to all artwork. So it is discriminatory against people who have artwork that pre-exists this legislation. That is why the Greens are moving to make sure that that is changed. Given what Senator Ronaldson had to say, and given that this is a problem that he has with the bill, I cannot understand why he would not be supporting the Greens amendment to address this. I will be moving that amendment and making it very clear when we get to the committee stage.

The second issue that we seek to deal with is the government providing legal advice saying that without clause 11 the legislation may result in an acquisition of property on other than just terms and is therefore unconstitutional. The Greens have examined information provided by the arts community and a number of other people. We also note submissions that have been brought in. As a result we have an amendment which replaces the limits in clause 11 with a compensation clause. That preserves the constitutionality of the bill and ensures a functioning and meaningful scheme. So that is my second point: we understand the arguments the government have put and we have come up with a way of dealing with that. This is particularly important. We have to sort out this issue we have with the fact that the artists can only receive the benefit from the second sale, because otherwise we are going to be in a situation where the minimalist regime that the government is putting in place may well not meet international standards—and so our artists are going to be disadvantaged in terms of mutual recognition. This is a disaster in terms of that recognition for our artists. It needs to be dealt with, and we have an amendment to deal with that issue.

The other problem we have with this is the opt-out provision. Because of the way the government has structured the administration of this, people can opt out from the collecting society. There is a real concern that we are going to end up with a lack of transparency and accountability, and there may even be a question as to whether the administration of the scheme can be viable if people have got the opportunity to opt out. It also could potentially lead to bullying—to people putting pressure on people to opt out of the scheme. I think that would be most unfortunate. So we have an amendment to remove that provision.

The final issue of significant concern to us, and it is a vital issue in relation to the scheme, is how it will impact on Indigenous artists. I recognise that overall the scheme will be of potentially great benefit to Indigenous artists, who will continue to receive financial benefits from their work into the future. However there are outstanding issues related to Indigenous artists, in particular pertaining to communal rights and succession issues. We welcome the provisions in clause 15 allowing the Indigenous community body to hold resale royalty rights by way of succession. However both the Liberal Party when in government and now the Labor Party in government have failed to adequately provide for communal rights for Indigenous artists. Communal rights are for when a work of art is produced by members of a community using the community’s cultural expressions and practice. This bill allows the resale royalty to be held jointly by more than one artist. But this provision is not broad enough to recognise Indigenous communal ownership. A number of submissions to the House of Representatives inquiry called for the bill to recognise Indigenous communal rights, and that is something the Greens believe ought to be recognised. We will be moving an amendment to introduce communal ownership of the resale royalty right into clause 12 of the bill.

Indigenous Australians have been calling for Indigenous cultural and intellectual property rights for at least the last 20 years and now is the time for the government to comprehensively protect Indigenous intellectual property. That would be consistent with the UN Declaration on the Rights of Indigenous Peoples, which the Australian government has recently adopted. The resale right scheme is an important element of this and it should be part of a comprehensive legal framework to protect Indigenous intellectual property rights. That is why we have got a second reading amendment calling on the government to commit to addressing the outstanding issue of protecting Indigenous intellectual property, including the provision of communal moral rights, taking into account the UN Declaration on the Rights of Indigenous Peoples.

Another issue concerns the succession of resale royalty rights and the need to ensure Indigenous artists are provided with information and assistance in ensuring their wishes are protected when it comes to their estates. The Arts Law Centre of Australia has been running a successful program assisting Indigenous artists in drafting wills and these programs need to be supported and extended. We encourage the government to develop and fund a program to educate and assist Indigenous artists in securing the succession of their resale royalty rights through the making of wills. The first point in the second reading amendment calls on the government to address that matter.

The resale royalty scheme is not of any immediate benefit to young and emerging artists. We need to ensure adequate support for young and emerging artists in Australia, including financial support. Whilst I recognise the minister announced the ArtStart program, providing grants of up to $10,000 to art graduates to establish a business or gain employment, that is nothing compared with what needs to be done. It falls far short of the government’s election policy, which promised an adoption of an artist-friendly social security arrangement. That simply has not happened.

The ALP policy discussed the potential for artistic practice to be considered as part of the mutual obligation requirements of Centrelink, and committed Labor to developing a social security and arts policy that harmonises current Australia Council, Centrelink and Australian Taxation Office rules, and determines the most equitable way to treat earnings and royalty payments for artists currently receiving welfare. I noticed the National Association for the Visual Arts also proposed an artists’ fees scheme where government funds regional art galleries so that they can pay artists’ fees for exhibitions. The last paragraph of the seconding reading amendment calls on the government to provide more support for young and emerging artists.

In conclusion, whilst the Greens absolutely support the government doing something about resale royalty rights, the big problem with it is—as per usual—that they talk the talk but they do not walk the walk when it comes to doing what is necessary. Just doing any old thing will not work. The real tragedy here is for all those artists who have been waiting for this, assuming that when it came in they would get the royalty as soon as their work was sold. Having to wait for the second sale means they may have to wait 50 years or so. That is completely unacceptable. I move:

At the end of the motion, add “and the Senate calls on the Government to:

(a)   in consultation with relevant stakeholders in the community, develop and fund a program to educate and assist Indigenous artists in securing the succession of their resale royalty rights, including through the making wills;

(b)   commit to addressing the outstanding issues of protecting Indigenous intellectual property, including the provision of communal moral rights, taking into account Article 31(1) of the United Nations Declaration on the Rights of Indigenous Peoples; and

(c)   provide further support, including financial support, to young and emerging artists, especially those who will not immediately gain any benefit under the resale royalty scheme”.

I will be very disappointed if the coalition does not support what is clearly a very sensible second reading amendment which goes to the heart of many of the concerns that were outlined by the artists over a very long time and who have been waiting for this scheme.