Peter Garrett (Kingsford Smith, Australian Labor Party, Minister for the Environment, Heritage and the Arts) Share this | Hansard source

Madam Deputy Speaker, I am actually presenting the supplementary explanatory memorandum to the bill, which I have here, and seeking leave of the Main Committee to move government amendments (1) to (4), as circulated, together.

Leave granted.

I thank the Main Committee. I move government amendments (1) to(4), as circulated, together:

(1)    Clause 2, page 2 (lines 1 to 12), omit the clause, substitute:

2 Commencement

        (1)    Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:   This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

        (2)    Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

(2)    Clause 3, page 4 (after line 10), after the definition of unlawful non-citizen, insert:

works of visual art has a meaning affected by subsection 7(2).

(3)    Clause 3, page 4 (lines 11 and 12), omit the definition of works of graphic or plastic art.

(4)    Clause 7, page 5 (lines 7 to 14), omit the clause, substitute:

7 What is an artwork?

        (1)    An artwork is an original work of visual art that is either:

             (a)    created by the artist or artists; or

             (b)    produced under the authority of the artist or artists.

        (2)    Works of visual art include, but are not limited to, the following:

             (a)    artists’ books;

             (b)    batiks;

             (c)    carvings;

             (d)    ceramics;

             (e)    collages;

              (f)    digital artworks;

             (g)    drawings;

             (h)    engravings;

              (i)    fine art jewellery;

              (j)    glassware;

             (k)    installations;

              (l)    lithographs;

            (m)    multimedia artworks;

             (n)    paintings;

             (o)    photographs;

             (p)    pictures;

             (q)    prints;

              (r)    sculptures;

             (s)    tapestries;

              (t)    video artworks;

             (u)    weavings;

             (v)    any other things prescribed by the regulations.

The Resale Royalty Right for Visual Artists Bill 2008 will deliver on the government’s election commitment to introduce a resale royalty right for Australia’s visual artists. It will create a right for artists to receive royalty payments from subsequent sales of their artworks and, importantly, will establish a statutory scheme to enforce the right and collect and distribute royalties. This bill reflects the government’s commitment to enlarging the creative opportunities of our artists. It will complement existing copyright and moral rights legislation, providing artists with due recognition and a potential additional source of income. The resale royalty right created in the bill is intended to allow visual artists the benefit from the commercialisation of their work in the secondary art market. Visual artists derive their main source of income from the first sale of original artworks and do not currently have the same range of opportunities as other creators, such as authors and composers, to earn money through exercising their copyright in their work for reproductions, public performances or broadcasts.

The proposed model as set out in the bill has been developed to reflect the particular characteristics of the Australian art market. Here it is worth recognising that the visual arts sector in Australia is vast and varied. This bill sets out a model that carefully balances the interests of artists, dealers and consumers. It is thoroughly researched. All options were considered and, most importantly, it was carefully tailored to suit Australia, and that included giving particular consideration to the Australian constitutional and legal system. The bill was referred to the Standing Committee on Climate Change, Water, Environment and the Arts to examine the bill’s content and structure to ensure it met its stated objectives. The committee’s report was delivered on 20 February this year. I acknowledge and thank the committee for its work in conducting the inquiry and delivering its report. The government has carefully reviewed the committee’s report and recommendations and has also taken into consideration the views expressed by stakeholders. The government’s official response was presented to the parliament on 28 May.

The important thing to note is that the committee found there was widespread support for a resale royalty scheme and on almost every single issue the bill gets it right. But it is the case that the government decided to accept four of the committee’s recommendations and agree partially or in principle with another two recommendations. These matters will be dealt with through minor amendments to the bill and clarifications of the EM and through the tender documentation and contract with the appointed collecting society. The government has also decided not to agree to four of the committee’s recommendations in relation to prospective application and special provisions for Indigenous artists or art centres on the basis that they have the potential to compromise the validity of the legislation, create significant legal issues or counteract the integrity of the government’s resale royalty policy.

The one critical issue raised by the committee relates to the prospective application of the scheme, which means that the right will apply to resales only where the seller has acquired the work of art after the legislation takes effect. The committee requested that further legal advice be sought on this matter but that following that the bill should proceed. The government received further legal advice on the recommended matters, and following that advice I believe that prospective application of the scheme continues to provide a constitutionally and legally sound model for introducing a resale royalty right in Australia. Furthermore, the government remains of the view that applying the scheme retrospectively would expose the Commonwealth to significant risk.

As well as responding to the government’s legal framework, the government’s model protects the rights of existing owners of artworks and ensures that everyone purchasing an artwork after the scheme commences will do so with the knowledge that a royalty payment may be required when that artwork is sold. This arrangement will also allow businesses in the Australian art market to adjust to the right gradually, thus ensuring a smooth transition for the scheme. The scope of the scheme will grow over time, delivering benefits to artists and their heirs. The government’s proposed model is the one that will actually deliver a resale royalty scheme for visual artists, giving them greater access to rights in their artworks and potential future income. It is a system that will stand the test of time. It ensures certainty. It will provide support and recognition for generations of artists to come.

I wish to speak briefly on the matter of the government’s proposed amendments and seek leave from the committee to continue my remarks. (Extension of time granted) The government’s proposed minor amendments to the bill further clarify its intent and ensure the smooth operation of the scheme. Firstly, the government proposes to accept the committee’s recommendation to broaden the definition of what constitutes an artwork to include further examples that were listed previously in the explanatory memorandum. Clause 7, which explains what is an artwork, will now include examples such as batik, weaving, other forms of fine art, textiles, installations, artists’ books, carvings, multimedia artworks, and digital and video art. This list will provide guidance to art market participants without excluding forms of art that are not specifically listed. The term ‘graphic or plastic art’ has been replaced by the broader term ‘visual art’ to reflect the broader list of examples. This change is consistent with recommendations that were put forward by artists’ representative groups. In addition, a new regulation-making power has been included to allow further examples to be added to the list of artworks if this becomes necessary to reflect future changes in artistic practice. These changes have clarified the situation for anyone affected by the bill and make it easier to understand which artworks would qualify for the scheme, thereby reducing the potential for uncertainty or disputes to arise, creating greater certainty for artists and art market participants.

The second proposed amendment will alter the commencement date of the scheme, as set out in clause 2. The government proposes that clauses 3 to 5 and parts 2, 4 and 5 of the bill should commence on a day to be fixed by proclamation. These elements of the bill refer to the nature of the resale royalty right and its enforcement, which cannot be implemented until a collecting society is selected to monitor and administer the scheme. As an open and transparent selection process cannot be conducted until after the legislation is enacted, it will not be possible for these elements of the scheme to commence on 1 July 2009, as currently proposed in the bill. I commend the bill to the chamber.

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