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

This might be in the non-controversial slot in the Senate Order of Business, but it certainly is a highly controversial bill. The coalition will not seek to frustrate the passage of these bills. These bills create a resale royalty right scheme so that visual artists will be able to claim a share of the proceeds of the second and each successive commercial sale of their artwork during the course of the artist’s life; and their estate will hold the right for a period of 70 years after the death of the artist.

Resale royalty rights for visual artists have been recommended by numerous reports over the years and they exist in many countries. The coalition has consulted very widely on these proposals and has found that there are sound arguments both for and against the introduction of rights. There are strong supporters and opponents of a resale royalty right—in the main, artists are supportive of the principle, whereas intermediaries, such as gallery owners, are opposed. Yet even this is an oversimplification, and prominent Australian artists themselves sit on both sides of the debate.

Some artists see a resale royalty right scheme as a fundamental recognition of their intellectual property rights. Other artists see the introduction of the resale royalty right as an unnecessary interference with the business model they have already established for selling their art. All have highlighted problems with the legislation as currently drafted. Tamara Winikoff, Executive Director of the Australian visual arts peak body, the National Association for the Visual Arts, said:

This legislation alienates all sides of the visual arts sector. It is an election promise gone horribly wrong.

               …            …            …

According to art industry studies, most of today’s artists, especially Aboriginal artists, will see no benefit within their lifetime and will not enjoy the dignity of earning income from the increasing value of their art work.

The model contained in the government’s bill will see the payment of the royalty to artists delayed until the second sale of their artwork after the commencement of the scheme. Art industry studies of auction houses show that of the artworks which were sold in 1988 only six per cent have been resold 10 years later. This gives an indication of the length of time most artists will have to wait to see any benefits, and the scheme itself will be complex to administer. It is also highly unlikely to secure reciprocal rights from overseas sales of Australian artists’ work. This means, again, that artists are being denied another potential source of income.

In summary, let me make it clear to members of Australia’s visual arts community that, firstly, we strongly support the arts in Australia and, secondly, we support the principle of a resale royalty right scheme being an appropriate way of recognising the intellectual property rights of Australia’s visual artists. We are just not convinced that Labor’s approach is the best way of doing that. In spite of our concerns about the detail of these bills, the coalition will not be opposing these bills, noting the government’s election mandate on this issue. I can also indicate that the coalition will not be supporting the Greens amendments.

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

I rise to comment on the Resale Royalty Right for Visual Artists Bill 2009 and to note that it does introduce a long-sought-after means of providing artists with financial benefit from their work into the future. The Greens certainly believe in supporting and promoting Australian artists and protecting their work. However we do note that this bill is well and truly overdue. It was introduced into the House of Representatives last year and into this chamber in September, and now it is being raced through on the last day of sittings when it warrants a lot more discussion.

The main problem with this bill is clause 11. This relates to the second sale for existing artworks. As to when the scheme applies to existing artworks, under the legislation clause 11 provides for royalties on the artwork in existence at the time the scheme commences to be payable only on the second resale. Senator Ronaldson just indicated that that was the problem he had with the bill, for all the same reasons. He has obviously got the same information. Research has shown that of work sold in 1998, for example, only six per cent had been sold again by 2008. That analysis also showed that if the resale royalty scheme had been implemented in 1998 then it would have generated only 13 per cent of the income it would have generated if the scheme applied to all artwork. So it is discriminatory against people who have artwork that pre-exists this legislation. That is why the Greens are moving to make sure that that is changed. Given what Senator Ronaldson had to say, and given that this is a problem that he has with the bill, I cannot understand why he would not be supporting the Greens amendment to address this. I will be moving that amendment and making it very clear when we get to the committee stage.

The second issue that we seek to deal with is the government providing legal advice saying that without clause 11 the legislation may result in an acquisition of property on other than just terms and is therefore unconstitutional. The Greens have examined information provided by the arts community and a number of other people. We also note submissions that have been brought in. As a result we have an amendment which replaces the limits in clause 11 with a compensation clause. That preserves the constitutionality of the bill and ensures a functioning and meaningful scheme. So that is my second point: we understand the arguments the government have put and we have come up with a way of dealing with that. This is particularly important. We have to sort out this issue we have with the fact that the artists can only receive the benefit from the second sale, because otherwise we are going to be in a situation where the minimalist regime that the government is putting in place may well not meet international standards—and so our artists are going to be disadvantaged in terms of mutual recognition. This is a disaster in terms of that recognition for our artists. It needs to be dealt with, and we have an amendment to deal with that issue.

The other problem we have with this is the opt-out provision. Because of the way the government has structured the administration of this, people can opt out from the collecting society. There is a real concern that we are going to end up with a lack of transparency and accountability, and there may even be a question as to whether the administration of the scheme can be viable if people have got the opportunity to opt out. It also could potentially lead to bullying—to people putting pressure on people to opt out of the scheme. I think that would be most unfortunate. So we have an amendment to remove that provision.

The final issue of significant concern to us, and it is a vital issue in relation to the scheme, is how it will impact on Indigenous artists. I recognise that overall the scheme will be of potentially great benefit to Indigenous artists, who will continue to receive financial benefits from their work into the future. However there are outstanding issues related to Indigenous artists, in particular pertaining to communal rights and succession issues. We welcome the provisions in clause 15 allowing the Indigenous community body to hold resale royalty rights by way of succession. However both the Liberal Party when in government and now the Labor Party in government have failed to adequately provide for communal rights for Indigenous artists. Communal rights are for when a work of art is produced by members of a community using the community’s cultural expressions and practice. This bill allows the resale royalty to be held jointly by more than one artist. But this provision is not broad enough to recognise Indigenous communal ownership. A number of submissions to the House of Representatives inquiry called for the bill to recognise Indigenous communal rights, and that is something the Greens believe ought to be recognised. We will be moving an amendment to introduce communal ownership of the resale royalty right into clause 12 of the bill.

Indigenous Australians have been calling for Indigenous cultural and intellectual property rights for at least the last 20 years and now is the time for the government to comprehensively protect Indigenous intellectual property. That would be consistent with the UN Declaration on the Rights of Indigenous Peoples, which the Australian government has recently adopted. The resale right scheme is an important element of this and it should be part of a comprehensive legal framework to protect Indigenous intellectual property rights. That is why we have got a second reading amendment calling on the government to commit to addressing the outstanding issue of protecting Indigenous intellectual property, including the provision of communal moral rights, taking into account the UN Declaration on the Rights of Indigenous Peoples.

Another issue concerns the succession of resale royalty rights and the need to ensure Indigenous artists are provided with information and assistance in ensuring their wishes are protected when it comes to their estates. The Arts Law Centre of Australia has been running a successful program assisting Indigenous artists in drafting wills and these programs need to be supported and extended. We encourage the government to develop and fund a program to educate and assist Indigenous artists in securing the succession of their resale royalty rights through the making of wills. The first point in the second reading amendment calls on the government to address that matter.

The resale royalty scheme is not of any immediate benefit to young and emerging artists. We need to ensure adequate support for young and emerging artists in Australia, including financial support. Whilst I recognise the minister announced the ArtStart program, providing grants of up to $10,000 to art graduates to establish a business or gain employment, that is nothing compared with what needs to be done. It falls far short of the government’s election policy, which promised an adoption of an artist-friendly social security arrangement. That simply has not happened.

The ALP policy discussed the potential for artistic practice to be considered as part of the mutual obligation requirements of Centrelink, and committed Labor to developing a social security and arts policy that harmonises current Australia Council, Centrelink and Australian Taxation Office rules, and determines the most equitable way to treat earnings and royalty payments for artists currently receiving welfare. I noticed the National Association for the Visual Arts also proposed an artists’ fees scheme where government funds regional art galleries so that they can pay artists’ fees for exhibitions. The last paragraph of the seconding reading amendment calls on the government to provide more support for young and emerging artists.

In conclusion, whilst the Greens absolutely support the government doing something about resale royalty rights, the big problem with it is—as per usual—that they talk the talk but they do not walk the walk when it comes to doing what is necessary. Just doing any old thing will not work. The real tragedy here is for all those artists who have been waiting for this, assuming that when it came in they would get the royalty as soon as their work was sold. Having to wait for the second sale means they may have to wait 50 years or so. That is completely unacceptable. I move:

At the end of the motion, add:

          and the Senate calls on the Government to:

(a)

in consultation with relevant stakeholders in the community, develop and fund a program to educate and assist Indigenous artists in securing the succession of their resale royalty rights, including through the making of wills;

(b)

commit to addressing the outstanding issues of protecting Indigenous intellectual property, including the provision of communal moral rights, taking into account Article 31(1) of the United Nations Declaration on the Rights of Indigenous Peoples; and

(c)

provide further support, including financial support, to young and emerging artists, especially those who will not immediately gain any benefit under the resale royalty scheme.

I will be very disappointed if the coalition does not support what is clearly a very sensible second reading amendment which goes to the heart of many of the concerns that were outlined by the artists over a very long time and who have been waiting for this scheme.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I also support the Resale Royalty Right for Visual Artists Bill 2009 and the Tax Laws Amendment (Resale Royalty Right for Visual Artists) Bill 2009 for the reasons very eloquently put by the shadow minister in charge, Senator Ronaldson. I am also pleased to note that the legislation picks up on many of the recommendations made by the Senate committee looking at Indigenous art and which reported some time ago.

I wanted to use the opportunity of this legislation to briefly pay tribute to a magnificent person, and an excellent and talented Indigenous artist, Barbara Sam from the Mount Isa region. She is an original Kalkadoon, one of the—as I often joke with her—warlike tribes from the north-west of Queensland. She is an excellent artist and I was delighted earlier this month to host a small ceremony in my office for the unveiling of a magnificent painting by Barbara Sam, entitled The landscape. I just want to read what Barbara Sam said about this painting:

The landscape you see is the beauty of this land; the river which you see has great source of food; the land that holds a great range of bush tucker; and that is how I see the country; the landscape.

The small ceremony in my office was attended by traditional owners who were welcomed by Ms Grace Smallwood, a significant and well known Indigenous person in Townsville. Ms Sam gave an explanation of the painting and there were also comments by Councillor Deanne Bell of the Townsville City Council. This was all done amongst some of the Townsville art community. I pay particular tribute to Barbara Sam. Her paintings have been hung in the Supreme Court of Queensland after a presentation to the Chief Justice. I understand from Ms Sam that she also made a presentation to the former Prime Minister, Mr Howard. I am delighted to have been associated with Barbara and I wish her all the very best for the future in her painting and in every other way.

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

I thank senators for their contributions to the debate on the Resale Royalty Right for Visual Artists Bill 2009 and the cognate bill, and the opportunities taken by senators to reflect on related matters. Can I indicate on behalf of the government that we will not be supporting the Greens second reading amendment. Nor will we be supporting the amendments to the bill circulated in the chamber. I understand the interest senators have in this issue—it is one that I have had some involvement with—but I think it is fair to say that this has been a difficult and long-running issue that has not been addressed. This government went to the last election with a commitment to addressing the issue and we are delivering on that commitment by introducing this bill.

Some of the criticisms that Senator Milne and others make effectively say the bill ought to go further. We are saying we think this is what is possible at this time, this is what is sensible and this is what meets the legal advice we have had regarding the issue of prospective versus retrospective application. We have consulted widely in trying to bring in what I think is a really important reform to resale royalties for visual artists. We think the bill will be a major benefit to them over the years to come and is an appropriate policy response.

Obviously, experience of the legislation in practice may lead us to look to make amendments or deal with emerging issues, but sometimes the debate in here is along the lines of, ‘Our view is it ought to do all these other things as well, and therefore we want to be critical.’ I think what we have to do on this occasion is to say that this is a commitment the government made and it is a commitment we are honouring. There has been bipartisan, cross-party support for doing something in this area, but it has been talked about for many years and has not happened. This government has got on with it and had a go. We think the bill is one that has come out of a proper process of consultation and advice and we think it ought to be passed by the parliament.

We appreciate the support and I appreciate that it has been dealt with in non-controversial legislation time, despite the keen interest Senator Milne and others have in the issue. But we think passing it today will allow us to make a policy start in this area that is long overdue. We think this bill will provide benefits, and of course it is always open to us to come back and address some of the things that Senator Milne and others might argue ought to also be addressed. But this will address that fundamental issue of providing some resale royalty rights to Australia’s visual artists. So I commend the bill to the chamber and indicate that we will not be supporting either the second reading amendment from the Greens or their amendments in the committee stage. I will not necessarily speak again on the basis of the time constraints.

Question negatived.

Original question agreed to.

Bills read a second time.