When Arts Minister Peter Garrett got to his feet in Parliament last month and announced that he would implement Labor’s long-held commitment to a resale royalty scheme for all Australian visual artists, he told the House that:

I make no secret of the fact that one of the government’s motives in introducing this scheme was the very real benefits it will bring to Indigenous artists and their communities.

Garrett’s model for the resale royalty scheme has been the subject of bitter opposition from the big end of town — the large auction houses and art dealers. They don’t like the prospect of daylight shining on the shady dealings of the nether regions of their industry, they don’t like the administrative load it will place on them and they don’t like the idea of their clients having to shell out more money.

And the indigenous artists the subject of Garrett’s scheme? Well, some of them, along with dozens of small arts centres scattered across remote Australia, reckon they’ve been sold a pup and that Garrett’s model is seriously flawed and needs fixing.

Some suggest that Garrett’s scheme will do nothing to stop the shamefully unscrupulous rump of the market that sees artists pumping out “rubbish-art” from sweatshops in Alice Springs and other large centres in the Territory and others say it will be an administrative nightmare for arts centres and their close commercial relatives, the small art galleries and dealers that sell the bulk of their work.

More serious concerns centre on what has been identified as an unashamed nod to the big end of town — namely that Garrett’s scheme, by only applying to new works created and sold for a second time after 31 June 2009, will reduce benefits to artists to a slow and delayed trickle. Related to this is that Garrett’s scheme will need a substantial and complex administrative “back-end” that will be expensive to run and will provide relatively small returns to the small number of potential tender bidders to operate the scheme.

And of particular concern to many of the small Aboriginal arts centres is that, because they must pay their artists up-front, the “second resale” trigger point will move, not from the first commercial sale, but at the time the arts centre sells it to a dealer or it is sold by a gallery on exhibition.

Despite Garrett touting the scheme as providing real benefits to Aboriginal artists and their “heirs and successors”, his scheme may end up as the cause of interminable disputes and litigation over the royalties. Either that, or as a boon for the various Public Trustees that administer the deceased estates of people who die without wills.

Robyn Ayres is the Executive Director of the Arts Law Centre, the national community legal centre for artists that has recently been working with Aboriginal artists in the Kimberley and the NT to assist artists with the preparation of wills. She told Crikey, “under the intestacy laws, which vary from state to state, in most cases the order in which the estates of an Aboriginal artist is distributed is not in accordance with Aboriginal customary law or the probable wishes of the Aboriginal person who had passed away.”

John Oster, Executive Officer of Desart, representing 43 central Australian Aboriginal arts centres and the more than 3,000 artists that work through those centres, told Crikey, “…there isn’t a lot of understanding amongst artists about the need for wills, what they involve at whitefella law and there are a whole lot of perceptions about who owns the painting, who owns the cultural values behind the painting or work of art and therefore who should be the beneficiary for that.”

The issue of the ownership of and responsibility for the cultural values in an artwork are particularly relevant because it envisages that for 70 years after an artist’s death resale royalties will flow only to his or her identified heirs and successors at Australian law.

As a series of cases in the 1990’s, including the landmark case of John Bulun Bulun & Anor v R & T Textiles Pty Ltd illustrate, Aboriginal rights and responsibilities in visual art, particularly where they concern sacred and/or secret images or knowledge, can be recognised at Australian, i.e. no-Aboriginal, law, but are substantially more complex and different to those that apply to non-Aboriginal artists.

Martin Hardie, now a law lecturer at Deakin University, ran those cases in the Federal Court in Darwin and is concerned that Garrett’s scheme will be a huge step backward — not only for the importance of Aboriginal art but for the lost opportunity to properly recognise the different ways in which responsibility for it is shared. 

“Garrett’s scheme is problematic and doesn’t take into account the realities and complexities of the artist’s society,”says Hardie. 

“It seems to forget those artists, particularly across the Top End of Australia, who fought so hard for so long for the merest recognition of their traditional law by the Australian legal system. For them this scheme might well end up being tantamount to the theft of their birthrights and will, in many cases, see benefits flowing to people who have no entitlements at traditional law.”

“Garrett’s scheme is a recipe not for economic benefits to Aboriginal artists but for the continued failure of Australian governments to recognise the fact that Aboriginal law still runs in many parts of Australia,” says Hardie. “And it is worrying that my old mate Peter Garrett, of all Australian politicians, may fail to grab this opportunity.”

And some small arts centres don’t see much benefit in the scheme either. Cecilia Alfonso is the manager of the Aboriginal-owned Warlukurlangu Arts Centre at Yuendumu. She sees little benefit for the Warlukurlangu artists in Garrett’s model, “Garrett’s scheme, as it is at the moment, will hinder the vibrancy of the market … this is the worst time to be doing this. I think it is unworkable. The people who drafted this don’t understand business and how the art market works.”

Minister Garrett’s spokesperson told Crikey this morning:

“At the moment Aboriginal artists receive no benefits from the resale of their work. With the introduction of the (resale royalty) scheme they will. The government has every confidence in the ability of the market to absorb and manage the introduction of a resale royalty and it has, for example, with the introduction of a buyers premium.”

Peter Fray

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