Jennie George (Throsby, Australian Labor Party) Share this | Hansard source

On behalf of the Standing Committee on Climate Change, Water, Environment and the Arts I present the committee’s report entitled Resale Royalty Right for Visual Artists Bill 2008, together with evidence received by the committee.

Ordered that the report be made a parliamentary paper.

by leave—On 27 November 2008, the Minister for the Environment, Heritage and the Arts, the Hon. Peter Garrett, introduced a bill for an act to create a right to resale royalty in relation to artworks and related purposes. In his second reading speech, the minister stated:

The introduction of this bill marks a landmark day for Australian visual artists, whose right to an ongoing economic interest in the value of their artistic works will be appropriately recognised in Australia for the first time.

Following the second reading speech, and at the request of the minister, the House of Representatives resolved as follows:

That the Resale Royalty Right for Visual Artists Bill 2008 be referred to the Standing Committee on Climate Change, Water, Environment and the Arts for consideration and an advisory report by 20 February 2009.

The committee, of which I am chair, rose to the challenge presented by this tight time frame and were prepared to undertake what was at times a very complex examination of various aspects of the bill. I particularly want to thank the members of the committee and the secretariat, who worked tirelessly to make sure that this report was presented within the time schedule determined by the parliament late last year. In particular, I want to acknowledge the efforts of Mr Peter Keele from the secretariat in that regard.

The committee was mindful that the primary aim of a resale royalty scheme was not just about raising additional income for artists but, more importantly, putting our visual artists on an equal footing with authors, composers and performers who receive an ongoing financial benefit from their creative efforts. The committee advertised, and received 40 submissions. It held public hearings in Canberra on 5 and 6 February, at which evidence from 20 witnesses was taken. Those witnesses, I believe, represented a range of views across the visual arts sector.

The committee found that there was widespread support for a resale royalty scheme, but most of the supporters felt that the current legislation would deliver very little by way of royalties to artists at the beginning of the proposed scheme. Some argued also that the scheme was out of step with other schemes already in place around the world. However, there were others who believed any sort of royalty scheme would only favour the already successful artists. Some also felt that the imposition of another levy on art purchases would adversely affect the primary art market and future resales of artwork could go offshore to be sold in markets where no such scheme exists. Of course, our committee took account of these competing views throughout its deliberations because we wanted to ensure that the establishment of a resale royalty scheme delivered real benefits to as many artists as possible while at the same time did not impact adversely on the primary art market.

While a number of issues were raised throughout the inquiry, the success or otherwise of the scheme came down to two important issues—firstly, whether existing artwork should be included in the scheme from day one and, secondly, whether individual artists should be able to opt out completely and have the right to collect the royalty given over to them personally. While it was not the stated aim of the Department of the Environment, Water, Heritage and the Arts to put forward a scheme whereby the first resale of existing artwork would be excluded from the royalty scheme at its commencement, it did so because it was advised that the inclusion of all resales from the outset could render the scheme unconstitutional.

The committee was told that the scheme, as currently proposed, will deliver very few benefits to artists for many years. This is due to two factors—the low turnover of artwork and the exclusion of the first resale of existing artwork after the commencement of the scheme. While the first factor is simply part of the dynamics of the art market, more importantly the second factor has been influenced by the interpretation of whether the first resale of existing artwork falls within section 51(xxxi) of the Constitution—that is, the acquisition of property on other than just terms. So the arguments about this part of the bill were very legal and technical in nature. Having considered all the submissions and taken evidence from a number of witnesses, the committee came to the view that there was in fact conflicting legal advice regarding the treatment of existing artwork and, considering the importance of this matter, it has concluded that further legal advice should be obtained before proceeding with the bill. If the scheme goes ahead with the exclusion of existing artwork, a number of other unintentional problems will arise. In particular, it will be difficult to verify which resales are eligible for a royalty payment and which resales are to be excluded.

With regard to the second matter, the committee was very mindful of the inalienable right pertaining to this scheme, in line with the Berne convention, and that no-one should be able to take that right away from the artists. Getting the balance right between upholding this important principle and delivering a viable and sustainable scheme is not easy. However, after weighing up all these competing interests the committee has concluded that this right is not compromised by the decision to appoint a sole collecting society as long as the artists can still choose to say no to the collection of that royalty owed to them on a case by case basis. However, we believe that the administration of the scheme would be compromised if artists elected to collect the royalty themselves or appointed another art market professional to undertake the collection.

Central to the establishment of a resale royalty scheme in Australia has been the objective of providing real benefits to Indigenous artists and their estates. Indigenous artists would greatly benefit if all resales were included in the scheme from day one and if the scheme were structured in a way so as to recognise the possibility of communal ownership of artwork. In order to ensure that all artists, in particular Indigenous artists, are aware of how the scheme will operate, the committee has also recommended that some of the funds set aside to establish the scheme be used to educate and inform all participants.

I am very grateful to the committee members and to the secretariat, who have had to work through a number of very complex issues in a very short time frame. Those members of the committee have endorsed the findings as presented in the report tabled today. If a resale royalty scheme is to be established in Australia it should be designed to benefit as many artists as possible, be clearly understood and be properly administered. In that regard we have made 10 recommendations to improve the bill before the House. The committee has concluded that, subject to the recommendations made in this report, the bill should proceed.

I commend the report to the House.

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