Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 5900:

(1) Clause 11, page 7 (lines 11 to 16), omit the clause, substitute:

        (1)    If the operation of this Act or the regulations would, but for this section, result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

        (2)    If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

        (3)    In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

This amendment pertains to clause 11, which is the matter I referred to in my speech in the second reading debate. I note that I am disappointed that both the government and the coalition voted against the second reading amendment without actually saying why or what was wrong with it. I would appreciate if the government could explain to me why it thinks it is appropriate that artists will have to wait decades for a second resale before they see a cent from their work which has been resold already. It makes a lot of profit for the art dealers. This is going to be a huge disappointment to people who have waited so long, when it ought to be that visual artists receive royalty payments for the first resale of their work instead of having to wait for second and subsequent sales. We believe this amendment deals with that issue and also deals with the legal advice the government had which pertained to compensation. I believe that this amendment deals with that in the appropriate way.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I see the member for Gippsland, Mr Chester, with some people upstairs at the moment and I know he has a great interest in this matter as well. I do not want to delay this, but obviously we have very real concerns about this bill. We share in a principled sense the concerns raised by the Greens in relation to this, but on balance we have decided not to support further amendments.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I do not want to be rude to Senator Milne—I know it is difficult in this period of time to have a proper debate, given we are moving through non-controversial legislation. But, in response to Senator Milne’s main concern, the debate about prospectivity versus retrospectivity and the first sale et cetera has been at the heart of this debate for a long time. It is difficult. We did a lot of work going through the issues and what we have made very clear is, based on the best legal advice we have, we think it is best to go down this path, that the problems, the traps and the complexities involved in doing anything else are too great. Our very clear legal advice was to make the scheme prospective, and that has the impact that the senator points to. But I remind her the alternative is nothing, in a sense. This is an important step. It does not solve all of those issues, many of which are, if you like, legacy issues, but it does put in place a system which will allow resale royalty rights for visual artists into the future. I understand her concern, but we went through a long process of trying to resolve these issues and got a lot of advice. Based on that advice, we determined that we could only go down the prospective application path.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I ask the government to indicate what advice it has as to whether under this scheme Australian artists will be able to access schemes in other countries—for example, will it entitle Australian artists to royalties from other countries such as the UK? I am concerned that because this is such a minimalist regime it will not be recognised and our artists will not be able to benefit from royalties from other countries. Can the minister inform the Senate whether the government has advice on this and whether other countries are going to recognise this legislation under the Berne Convention for the Protection of Literary and Artistic Works?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

It is a perfectly reasonable question and an important issue, and I do not have an answer for you. I do not want to flash outside the off stump, but I will undertake to get the minister’s office to provide a comprehensive answer to that to your office as soon as possible. I do not have enough briefing to be able to answer that in the sort of level of detail that I think would be fair, but I happily indicate that I will get a proper, comprehensive answer to that question for you from the minister’s office.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that and appreciate it, but I want to put on the record that artists will be waiting, in some cases, up to 50 years to get any benefit under this legislation, and if it is not mutually recognised overseas then it is even worse. I put the government on notice that in the future we will be coming back with amendments pertaining to this issue, because we really cannot bring in a scheme that is so substandard it is not mutually recognised for the benefit of artists.

Question negatived.

I note that both the government and the coalition opposed that amendment. Because of the way we are doing this, divisions are not being called, but it needs to be on the record. I move Greens amendment (2) on sheet 5900:

(2) Clause 23, page 14 (lines 14 to 24), omit subclause (1).

This effectively relates to the opt-out provision. What the scheme does is provide for a collecting society to be the primary means of collecting and distributing the resale royalty. Clause 23(1) allows artists to notify the collecting society that they do not want the collecting society to enforce the resale royalty right, and artists can then collect the royalty themselves or not collect it at all. This amounts to an opt-out clause. There is a genuine concern that this could lead to artists being coerced or bullied into giving up their right to a resale royalty, and this concern is held by a number of stakeholders in the arts community, including the National Association for the Visual Arts, who are concerned about the fact that it will leave some artists vulnerable to exploitation.

There is also a question of whether this opt-out clause undermines the inalienability of the resale royalty right which is provided for in clause 21. The ability of artists to opt out of the scheme raises concerns about the viability of the scheme, as I mentioned in my speech in the second reading debate; if large numbers of artists or certain artists choose to collect the royalties themselves or enter into arrangements with auction houses over the payment of royalties outside the collection agency then the collection agency will miss out on the administration fees necessary to function. I also think this opt-out clause undermines the intention of the government to provide a transparent and accountable process for the fair distribution of royalty payments. Hence, I am moving this amendment to omit subclause 1.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

This seems like a full committee stage, not non-controversial legislation, but I will do my best to indicate to Senator Milne why we will not be supporting her amendment. The bill provides that the resale right is absolutely inalienable and unable to be waived. It also provides that an agreement to repay a resale royalty is void. The provisions have been included in the bill to ensure artists cannot be exploited by being persuaded or coerced to waive or reassign their right to primary sale.

The opt-out clause included is an important balance to these provisions. It provides that an artist may instruct the collecting society not to collect the resale royalty on their behalf. To be effective, the request to opt out must be made in writing for each and every sale and within a limited period following the sale of the relevant work. Artists are also entitled to choose not to receive their resale royalty right through the collecting society in certain situations but instead to collect the resale royalty directly. We think these provisions are important to provide a balance between the need for artists to be able to choose when and how their resale royalty rights are exercised and the need to safeguard against the possibility that artists may be pressured to waive their rights to royalties on resales of their works.

Question negatived.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I note again the government and the coalition both defeated that amendment. I now move Greens amendment (3) on sheet 5900:

(3) Clause 12, page 8 (after line 4), after subclause (3), insert:

Communal ownership

     (3A)    If the artwork was created by an Indigenous artist under the direction of an Indigenous cultural group, the resale royalty right on a commercial resale of the artwork:

             (a)    is held by the group; and

             (b)    may be asserted by a custodian nominated by the group as its representative for this purpose.

It is basically to insert a new clause which says in relation to communal ownership that if the artwork was created by an Indigenous artist under the directions of an Indigenous cultural group the resale royalty right on a commercial resale of the artwork is held by the group and may be asserted by a custodian nominated by the group as its representative for this purpose. This is a long discussion—I do not intend to enter into it here—but I think it is essential that the government recognise communal ownership for the purposes of resale royalty rights for visual artists.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Briefly, I do not think I disagree with Senator Milne. What the government is saying, though, is that we think the issue of joint ownership is sufficiently addressed in the bill as it currently stands. It does provide for works of joint authorship, meaning a work produced by the collaboration of two or more artists where the contribution of each is not separate from the contribution of the other artists. We think this sort of approach mirrors the treatment of joint authorship in the Copyright Act and sufficiently meets the issues raised by Senator Milne.

Question negatived.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I note that the coalition and the government both voted against that amendment.

Bills agreed to.

Bills reported without amendment; report adopted.