Tony Zappia (Makin, Australian Labor Party) Share this | Hansard source

I, too, wish to speak in respect of the report from the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts on the Resale Royalty Right for Visual Artists Bill 2008. I was a member of the committee that looked into the matters that have been reported back to this House in that report and, let me say from the outset, the introduction of this bill is long overdue. It is a bill that I commend the minister for introducing, and for doing so as quickly as he has been able to since becoming a minister of government. It is long overdue because it was back in 1977 that Australia acceded to the Berne convention. The convention was drafted in Paris in 1971, and it effectively gave protection to the literary and artistic works of artists around the world. So we have a convention being established in 1971, we have Australia agreeing to that convention in 1977 with formal entry into it in 1978, and now, 31 years later, we still have done nothing about ensuring that the rightful entitlements of artists are protected and provided to them. So I certainly congratulate the minister for getting on with what should have been done a long, long time ago.

Interestingly, already 54 countries of the 164 that signed the Berne convention have introduced a resale scheme of some kind or another. It is true that those schemes have some differences in different countries of the world; they all have peculiarities about them that make them somewhat different between one country and another. But, broadly speaking, they all set up a framework to ensure that artists get the rightful entitlements that they deserve and are entitled to. Amongst those countries, I have to say that both the UK and the European Union are signatories to it. I want to quote from the Berne convention, because I think it is important that members understand exactly what it says. The convention states:

(1)

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.

(2)

The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed.

(3)

The procedure for collection and the amounts shall be matters for determination by national legislation.

That is what this bill does. It is Australia’s national legislation in response to the Berne convention.

Because artists have been denied their rightful entitlements for so long, there are too many artists in this country who no longer apply their artistic ability to creating artworks. A number of my acquaintances are very good artists—I have seen their work; I have got some of their work—who have not been able to continue to be artists because the remuneration simply was not there and they have had to go back to relying on other forms of income, in turn denying them the time that they need to apply themselves to creating the artwork that they are so good at doing. So I have seen it myself.

Before I came into this place, as Mayor of the City of Salisbury I would regularly host art exhibitions for young students of the schools in the area from which I came. These artworks showed an extraordinary level of talent amongst those young people; talent that I am sure could have been developed in the years ahead. But, sadly, I do not know too many of them who have continued to apply that talent. Again, I suspect because they understand that there is simply not the remuneration there as the law currently exists, they do not pursue those talents and skills. Quite frankly, because they do not, we as a society are the poorer. The resale royalty scheme provides a key incentive for those artists who do have talent to in fact continue with that work.

There have certainly been some questions raised by a number of people as a result of the bill being introduced into parliament and, because we were aware of these concerns, the committee, quite rightly, held a public hearing into the bill. If I recall correctly, we received over 40 written submissions and, on the day, we heard from around eight or nine representatives—some speaking on behalf of others. So we got a really good cross-section of all of the issues relating to the concerns with the current bill. Having listened carefully to those issues, I have to say that, by and large, the bill gets most of the issues pretty right. Yes, there could be some fine tweaking of some matters—and the nine recommendations that the committee has put forward, I believe, do that. They were not controversial matters. They were matters where, on perhaps a second look at the bill, one might say, ‘Have you allowed for this? If not, do you think it would be a good idea to amend the bill in this way?’

There is only one critical issue that is perhaps still the subject of some controversy, and that is the issue referred to by the member for Moncrieff, relating to clause 11—the issue of retrospectivity. It relates to section 51(xxxi) of the Constitution and what lawyers might describe as ‘acquisition of property on other than just terms’. It relates to the fact that, under the current bill, the resale royalty scheme cannot take effect until the second sale of the artwork. My understanding is that the legal advice in respect of whether or not clause 11 should stand in the bill is unclear in that there will be differences of opinion on it. I have listened to the advice of those people who made submissions to the committee. We also heard advice from the department. I have drawn the conclusion that that matter will only ever be properly determined in the courts.

It is my view that we need to try to ensure that the matter never gets to the courts. We should at least put together a framework that is likely to ensure that the matter never gets to the courts. I do not believe we will ever get a clear definition on whether the clause ought to remain in the bill. Because of that, the committee quite rightly recommended in its report that further advice be sought in respect of clause 11. But, as I say, it is my view that, regardless of how much advice is sought, the truth is that it will only ever be clarified once it is tested in the courts.

The other nine recommendations relate to matters which are not controversial, but they are interesting. They relate to issues such as what constitutes art and what is an art transaction—for example, if you gift art to someone, is that a transaction that should be included in this legislation? The question of internet sites which might be used to sell artwork is of some concern. There is also the question of Indigenous art, and I would have to say that the Indigenous community is probably the most deprived in terms of their rightful remuneration when it comes to artworks. There were also questions with repect to the royalty scheme and the succession that applies with that scheme. Under the current scheme, as members may or may not be aware, after the death of an artist the scheme remains in place for 70 years and it is a flat five per cent royalty. Therefore, that royalty would continue to the heirs and successors of the artist. Because of Aboriginal law, matters were raised with respect to the intestate succession in Indigenous communities. Those are, in my view, quite proper matters to be raised and they are matters that I am sure the minister will respond to. The opt-out clause, if an artist does not want to be in the scheme, was also raised, and again quite properly so. Again I expect that the minister will respond to that.

Because this is a new bill and because there are a range of issues that one can only assess after the bill has been in place for some time, the committee has recommended that the bill be reviewed in five years time. I think that is quite reasonable. We are dealing with a very complicated matter. We are dealing with a new bill and we are dealing with artists from a whole range of different areas, and so to suggest that a bill ought to be reviewed is not unreasonable. In any case, it is the prerogative of the parliament to review bills at any time, regardless of whether or not that recommendation is in the committee’s report.

The only other matter that I want to touch on is with respect to the submissions that we received. We received a lot of submissions that I believe the bill in its present form adequately caters for, and the committee did not make any recommendations on them. It was interesting to note that the art sales industry generally opposed the bill in its entirety. Again, I can understand why, but the committee certainly did not share their view in opposing the bill. The matter that I found interesting was that one of the countries has a provision whereby, if art sold goes down in value, the royalty should not apply. That is another matter that is perhaps worthy of further response by the minister. Having said that, as a member of the committee that looked into the bill in detail and listened to the submissions, I can only say that the bill in its current form—with the exception of the questions in relation to clause 11—is a bill that is worthy of being proceeded with. Certainly, as a member of the committee, I would welcome some additional legal advice with respect to clause 11. But, having said that, I am not sure that it would give me the clarification that I need. I would like to see the bill proceeded with in the parliament.

Debate (on motion by Mr Hayes) adjourned.

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