Steven Ciobo (Moncrieff, Liberal Party, Shadow Minister for Small Business, Independent Contractors, Tourism and the Arts) Share this | Link to this | Hansard source

I intend to speak only briefly, because I note that the minister is not here to move amendments. Once again, we see another complete debacle by this haphazard minister, who, frankly, could not organise his way out of a wet paper bag. This has been a debacle from day one. We now see yet another example of the minister being unable to be present. On that basis, I confine my remarks until the minister arrives.

Janelle Saffin (Page, Australian Labor Party) Share this | Link to this | Hansard source

It is my intention to just wait for a minute until the minister arrives.

Steven Ciobo (Moncrieff, Liberal Party, Shadow Minister for Small Business, Independent Contractors, Tourism and the Arts) Share this | Link to this | Hansard source

Madam Deputy Speaker, there is no provision for that—

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The minister has arrived. I thank the honourable member. Minister, do you have a supplementary explanatory memorandum to the bill to present?

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

I do.

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

If you do, could you please present that? Thank you. The honourable member for Shortland has the call.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on this legislation. The bill creates a—

Janelle Saffin (Page, Australian Labor Party) Share this | Link to this | Hansard source

Before the honourable member has the call, there are some procedural matters that I have to attend to. The first is this: Minister, that is the explanatory memorandum? Thank you.

Steven Ciobo (Moncrieff, Liberal Party, Shadow Minister for Small Business, Independent Contractors, Tourism and the Arts) Share this | Link to this | Hansard source

Madam Deputy Speaker, I raise a point of order. It is confusing as to what is going on. We have the minister, who is apparently tabling a secondary explanatory memorandum. Who has the call—the minister or the member for Shortland?

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

The honourable member will please take his seat. We are moving through the procedures. Minister, are you seeking leave of the Main Committee to move government amendments (1) to (4), as circulated, together?

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

Steven Ciobo (Moncrieff, Liberal Party, Shadow Minister for Small Business, Independent Contractors, Tourism and the Arts) Share this | Link to this | Hansard source

When it comes to the arts, the Minister for the Environment, Heritage and the Arts could not organise his way out of a wet paper bag. I am afraid that, once again, we have seen in evidence this evening this government’s completely botched attempts to deal with legislation—botched in a whole range of ways. The first was when the original piece of legislation introduced by the minister was immediately referred to committee for further review, and the committee report, which the minister has referred to, outlined a number of recommendations. It was botched again when this minister in this Labor government sought to have the bill listed for debate prior to actually having responded to the committee’s report. It was then botched for a third time—and from memory it was ahead of the budget recess—when the minister was asked in the chamber whether the legislation would be up for debate and whether he would be seeking the opposition’s response to the legislation, and I was assured, ‘No, that would not be the case.’ Yet, about 10 minutes later, I found myself requiring to seek the call from the Speaker to debate the legislation—legislation put forward by the government that did not incorporate in any way the government’s response to the committee’s recommendations. Now, we have another botch from this government. It is only by the skin of his teeth that the minister has been able to serve the interests of the Australian arts community, he would claim, by moving the four amendments that he has spoken to. I note that recently the minister received an award in France for his service to the arts community. Can I say to the minister: I am glad he received that retrospectively because I am certain he will not receive one prospectively based on his performance over the past 12 months.

In speaking to the manner in which these amendments have been brought forward, I would like to briefly run through what has actually happened with respect to the Resale Royalty Right for Visual Artists Bill 2008. On 3 October 2008, the minister released a media statement heralding the introduction of the resale royalty right; 19 days later a ministerial statement was provided in the House to which I provided the opposition’s point of view; 56 days after that, legislation was introduced and the second reading speech took place, and the matter was referred to committee; 141 days after that the committee tabled its report; 168 days after the introduction of the legislation, I was required with less than 10 minutes notice to speak to the legislation that I had been assured would not be listed for debate—legislation which I knew at the time the government would be seeking to amend to respond to the committee’s report but which the minister had not yet formally done; and then 238 days late, the minister finally tabled his response. So, 321 days later, nearly a full year, debate on the bill has resumed after I agreed to allow debate to occur in Main Committee—otherwise, I dare say, we would still be waiting for the legislation to become enough of a priority for this government to introduce it in the House of Representatives. Here we are in September: this debate is continuing and I expect the legislation will be passed by the lower house. As I have said, the opposition will not seek to frustrate the passage of this legislation.

Bear in mind that this piece of legislation—so called Labor’s honouring of its election commitment—was meant to have taken place on 1 July 2009. Having now seen this timetable completely eroded, completely slipped through the fingers of the muddling Minister for the Environment, Heritage and the Arts, we now have a new start date being the date of assent. From day one, we have seen botched handling of this piece of legislation, this so-called Labor election promise. I certainly know that those in the arts community who have watched this debate closely for some time now recognise that this has been a debacle. (Extension of time granted) On 28 May 2009, the minister released a media statement in which he says:

The resale royalty scheme is one of the Government’s key election commitments—

if this is a key election commitment, I would hate to see a non-key election commitment—

and will give artists the right to earn ongoing income from their work—long after the initial sale.

How prophetic those words are—‘long after the initial sale’. The reason they are prophetic is that the National Association for the Visual Arts said in a press release on the same day, 28 May 2009:

The Australian art community could not be more disappointed in the artists’ resale royalty bill which passed through parliament today.

…            …            …

Especially in the current economic downturn, this—

the legislation, the framework—

could have provided urgently needed help to some of Australia’s lowest income earners. This compromised scheme will take about 20 terms of government before it is fully functional.

In lay terms, NAVA predicts it will be about 60 years before this scheme is functional. So when the minister says that this will provide support for Australian artists ‘long after the initial sale’ he means to be taken quite literally. According to NAVA, it will be about 60 years before these artists start to see any real income as a result of their labours.

I have outlined, from a coalition perspective, our support in principle of resale royalty rights, but make no mistake: the coalition’s proposal would have been quite different from the government’s approach. That is why I have committed the opposition to reviewing this botched scheme when we are elected at the next federal election. So from my perspective I think all Australian artists recognise that this government’s so-called interest in the Australian arts community is little more than lip service. It certainly could not amount to anything other than a botched debacle from day one. We know that Australian artists are extremely concerned about the way in which this legislation not only inadequately provides for the needs of Australian artists, not only inadequately provides for the particular needs of Indigenous Australian artists but also fails to provide for the needs of art dealers and the arts community and those engaged in the sale of art works.

I had have some concerns raised with me by, for example, eBay who have very genuine concerns about what this framework will mean on those selling art works via eBay and whether or not eBay itself will be responsible. Because of this government’s approach to the liability issue in terms of who is required to pay, we know that they have effectively sought to paint the entire wall as to who may be responsible for the liability to meet the need of paying the resale royalty. There is so much uncertainty about this legislation. There is such a long lead time with respect to this legislation. I know from speaking with a number of people, not only artists but also operators who are selling art works, that the communal voice is that the scheme put forward by the minister reeks of debacle and reeks of not having been paid due care and attention. That is the reason we have seen that this framework will no doubt continue to be an ongoing sore for this Labor government. If we were elected, it would be an ongoing sore for the coalition. That is the reason we remain committed to ensuring that this particular framework, in due course, is corrected and puts Australian artists, and most importantly the protection of their intellectual property and the ability for them to earn income from their intellectual property, high up where it should be while not unduly encumbering those who are engaged in secondary art market sales.

So right from the get-go we have seen problems with this. Whilst I commend the work of the committee, and I certainly recognise that the minister has in good faith adopted a number of the recommendations of the committee, there is no doubt that this simply is not a priority for the minister and that is detailed and exemplified by the sloppy approach when it came to even passing this legislation, whether it was listed for debate, whether it was pulled for debate, whether the minister was on time to move the amendments and whether the amendments would have lapsed because the minister arrived 15 seconds late. Australian artists, among the best in the world, deserve better care and attention from this government.

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

Can I just make just one observation in respect of the shadow minister’s remarks. I think that he would agree with me that it is important to get this legislation, the Resale Royalty Right for Visual Artists Bill 2008, right. That is what the government has aimed to do. It has done that by listening extensively to the stakeholders in the visual arts community—the artists, those who are involved in the art market and those who are involved in the secondary art market. I think it is entirely appropriate for us to have significant opportunities both for that consideration and for the debate to unfold. I am very pleased to be able to come into the Main Committee to continue that debate and to reflect how seriously the government has taken this resale royalty legislation.

I think it is important, particularly in light of what the shadow minister said, to point out that we do want to make sure that everybody has an opportunity for all the issues of importance to be fully canvassed and represented to the government. I have had the opportunity to hear from the auction houses, from the visual arts community itself and from individual artists. I have to say that I do not share the pessimism of some, including NAVA, that this scheme will not bring any benefits for a period of some 60 years. In fact, I am very confident that it will bring benefits much, much sooner than that.

I am particularly confident of that because the scheme that the government has brought forward and is proposing is one which strikes the right balance between the need of the art market for certainty and the desirability of visual artists actually having a copyright, which in the medium and longer term can derive some ongoing benefit for them and for their heirs and successors, and I think that is critical. I say that particularly in the context of Indigenous artists in this country, who have long suffered the ignominy of seeing resales of their work at greatly appreciated values not returning them any benefit whatsoever. I know that everybody here in this Main Committee would agree that that is not a desirable situation. So I do want to thank the shadow minister for his commitment to not frustrate this legislation and for his recognition that we have taken into account a number of the matters that were raised by the Standing Committee on Climate Change, Water, Environment and the Arts in its consideration.

But I will just make this point: Australia’s visual artists have had to wait 12½ to 13 years for this legislation. It was important that we gave every opportunity not only for the parliament but for the public to consider very fully what the government was bringing forward, and I believe that we have done that. The time is now due. As I flagged in my summing up speech, the amendments that are in front of us further clarify the bill’s intent. They will ensure the smooth operation of this scheme. I am very pleased that we are able to reach this point of commending these amendments to the chamber.

Question agreed to.

Bill, as amended, agreed to.

Ordered that this bill be reported to the House with amendments.