The Senate Standing Committee on Environment, Communications, Technology and the Arts, which inquired into the state of Indigenous arts and craft in Australia, tabled in June 2007 their report entitled Indigenous Art – Securing the Future. The report sets out 29 recommendations, including recommending the introduction, as a matter of priority, of revised Indigenous communal moral rights legislation and funding the Australian Competition and Consumer Commission (ACCC) to increase its scrutiny of the Indigenous art industry. The report also recommends $25 million in funds be available over a five year period to fund new infrastructure to assist Indigenous visual arts and craft and that NACIS (1) funding be increased but possibly confined to non-infrastructure projects.
Arts Law is disappointed that the committee recommended against the introduction of a resale royalty scheme, under which an artist would be entitled to a small percentage of the sale price every time their artwork was resold.
Nine of the recommendations relate to the development of a code of conduct for Indigenous art, of these the four key recommendations are 17, 18, 20, 21 and the other five recommendations are 12, 19, 22, 23, 28. The report, including the recommendations are available from the Parliament of Australia website.
As reported by Patrisha Adjei in the last edition of ART+law, the National Association for the Visual Arts (NAVA) has been developing an Indigenous Australian Art Commercial Code of Conduct (Code). This project, funded by the Australia Council, has progressed to its second draft, which is currently available for comment on NAVA’s website.
Whilst the committee recognised the work being done by NAVA on developing a code, Arts Law queries whether the committee is overly optimistic about the potential of the industry to self regulate. The committee suggested a two year period of self-regulation before assessing whether other forms of regulation are required. In Arts Law’s view there is clear evidence of serious problems in the industry and it is imperative that the Government act immediately to protect Indigenous artists and promote a sustainable Indigenous arts and crafts sector.
The committee’s reliance on the success of the Code is of concern to Arts Law given the Code has not been finalised and does not currently include adequate monitoring and enforcement measures. The Code will only be effective in addressing and remedying the major concerns of the committee regarding the sustainability and integrity of the Indigenous arts and crafts sector if it has the support and input of key government instrumentalities including Indigenous affairs, law, domestic and international trade, tourism, consumer protection, education, employment and, of course, the arts.
Arts Law supports Recommendations 19 and 23, which recommend there be expert input into the development of a code and that the Government examine further initiatives for enhancing the integrity of the Indigenous art market. Arts Law believes it is imperative that the Code include input from experts on industry codes, particularly the ACCC, and that it is critical that representatives across Government participate and identify active roles for themselves in the development and enforcement of the Code. Arts Law understands that an Interdepartmental Committee is examining its role in regards to the committee’s recommendations and that further discussions have commenced between the ACCC, NAVA and other relevant stakeholders (2).
Unfortunately, the Code is likely to fail if there are no enforcement mechanisms. There are presently a number of protocols concerning the treatment of ICIP, notably the Australia Council’s ICIP protocols.
None of the protocols currently available are enforceable unless they are adopted in individual contracts. Where voluntary protocols are adopted, they are adopted by participants already focussed on, and attempting to engage in, appropriate conduct. They are not adopted by individuals and organisations engaging in poor practices which are likely to harm Indigenous communities and have a deleterious effect on the Indigenous arts and crafts sector.
Recommendations 12, 18, 22 and 28 all relate to incentives for compliance with the Code. Arts Law queries whether these are powerful enough to encourage industry wide adoption of the Code. The recommendations suggest that there will be some form of compliance measurement. Arts Law asks whether a compliance body will also be established? Arts Law acknowledges that NAVA is currently grappling with some of these issues.
Arts Law is also concerned that the Indigenous arts and crafts sector is driven by consumers rather than collecting institutions, government departments and the Indigenous Visual Arts and Craft Resource Directory. However, the recommendations do not target the consumer’s market power. Accordingly, we query whether the recommendations are sufficiently powerful to enforce or even encourage widespread compliance with the Code.
Arts Law suggests that the Interdepartmental Committee develop a list of identifiable problems which can be assessed in two years from now. Furthermore, the Committee should set a date for the implementation of proscriptive regulation in the event that self-regulation fails to ameliorate identified persistent problems.
1. The NACIS program provides direct funding support to Indigenous art centres and arts support and advocacy organisations.
2. Members of the Interdepartmental Committee are: Attorney-General’s Department , Austrade, Australian Competition and Consumer Commission, Australia Council, Department of Employment and Workplace Relations, Department of Families, Community Services and Indigenous Affairs, Department of Finance and Administration, Department of Foreign Affairs and Trade, Department of Industry, Tourism and Resources, Department of Transport and Regional Services, Department of the Prime Minister and Cabinet, Treasury