Ananguku Arts

Elizabeth Tregenza
General Manager
Ananguku Arts and Culture Aboriginal Corporation

Thank you for the opportunity to comment on the Australian Indigenous Art Commercial Code of Conduct (the Code).

Ananguku Arts and Culture Aboriginal Corporation (Ananguku Arts) is an Aboriginal owned and governed organisation which is the peak support body for Aboriginal artists in the Anangu Pitjantjatjara Yankunytjatjara (APY)  Lands. The members of Ananguku Arts are the artists who work and reside on the APY Lands. Through its Statewide Indigenous Community Artist Development project Ananguku Arts also supports Aboriginal artists in remote and regional areas of South Australia. Ananguku Arts is listed on the Minister’s Register of Cultural Organisations

Ananguku Arts was represented on the enlarged Industry Alliance Group convened by the Australia Council to develop the Code by its Chairperson Marita Baker and General Manager Elizabeth Tregenza.

Context of these comments: The position of the members of Ananguku Arts

The members of Ananguku Arts have welcomed the development of the IAACCC. All members of Ananguku Arts are also active members of one of the seven artist-owned incorporated art centres on the APY Lands, Ninuku Artists, Tjungu Palya, Tjala Arts, Ernabella Arts, Kaltjiti Arts and Crafts, Mimili Maku and Iwantja Arts and Crafts. While these artists through their art centres are officially represented by leading and highly reputable commercial entities, artists and art centres have endured attempts by a small minority of private dealers to undermine the artists’ own businesses.

We note at the outset that the artists themselves are in the front line of dealing with potentially unethical dealers. As such, the strongest defence to date has been provided by:

a) The APY Lands permit system administered by Anangu Pitjantjatjara Yankunytjatjara, the statutory landholding body under the Pitjantjatjara Land Rights Act; this allows for denial of a permit to anyone with a criminal record.

b) The united regional position  to support art centres and preclude private dealers, reached by artists over various discussions and meetings at art centre level and endorsed at regional level at a Special General Meeting of Ananguku Arts in October 2008

c) Improved services to artists through increased staff numbers providing increased professional development support and, improved working conditions in one place through the planning and construction of a new arts centre

It should be noted that the majority of Pitjantjatjara and Yankunytjatjara artists are senior men and women for whom English is a third or fourth language.

Ananguku Arts’ response – general

We welcome the response by ArtsLaw and the following comments also make reference to the submission of ArtsLaw.

1. The members of Ananguku Arts endorse the development of the Code as a first and fundamental step, by setting out minimum standards for ethical visual arts commerce, in providing a framework which may lead to the regulation of an hitherto unregulated industry at a national level.

2. It is recognised the Code is voluntary not mandatory. We understand that after two years the Australian Competition and Consumer Commission may make the Code a prescribed Code and we would welcome that step.

3. We would like to endorse the statement made by ArtsLaw, that agreements with Indigenous artists should be in writing and, preferably, witnessed by an independent third party (page 2 point 2).

4. Ananguku Arts members have also received independent legal advice to this effect. The written agreements should be able to be tested in court. This organisation is at present developing bi-lingual contracting arrangements between artists and art centres; we recommend that an interpreter and in some cases a family member need to be present.

5. We endorse the statement made by ArtsLaw,that the Code should impose on the dealer a responsibility to explain the terms of any proposed agreement. This should be coupled with an obligation to recommend that artists seek, and have the opportunity to obtain, independent legal advice. …… a large proportion of Indigenous artists, particularly those in remote and regional areas, are disadvantaged educationally and socially and often do not ask questions or understand the terms of an agreement.

6. In the case of artists who are represented by an incorporated Aboriginal art centre, it may be possible to meet this obligation in a single agreement covering representation – however, this needs to be assessed on a case by case basis. The obligation should stand.

7. We support the position of ArtsLaw in point 4 page 2 and see point 4 above

8. We support the recommendation of ArtsLaw that a register be established, accessible on the internet, which lists dealers which meet the Code’s best practice standards. This would be useful for Indigenous artists as a means of checking on a prospective dealer and also for members of the public who can be satisfied they are dealing with a reputable dealer.

9. In relation to the submission of ArtsLaw at 6., a nationwide education campaign, we agree that nationwide education is needed, and that the most efficient and effective way of conducting this in remote areas will be with the support of the peak bodies, ANKAAA, Desart, Umi Arts and Ananguku Arts.

10. We endorse the submission of ArtsLAw point 7 that Currently the Code applies to agreements directly with the Indigenous artist. Depending on the meaning given to artist’s representative, it is unclear whether it applies to agreements between agents and dealers who represent Indigenous artists (either exclusively or non-exclusively) and other dealers and galleries. We would like it made clear that the Code does apply to such agreements.

11. We endorse the submission of ArtsLaw point 8 in relation to the adoption of ICIP protocols such as those produced by the Australia Council for the Arts Visual Arts: Protocols for Producing Indigenous Australian Visual Arts

12. We do not agree with the suggestion that the Code may operate unfairly to Indigenous art centres, nor that: It may be appropriate to exclude community based non-profit Indigenous art centres from the operation of the Code, on the grounds that Many of the commercial best practice provisions in the Code operate to find the correct balance between the dealer’s business interests and the artist’s interests: however may be unduly burdensome on art centres.

The Code sets minimum standards and should apply to all.

Those Indigenous art centres that provide a high level of professional development, social and financial support for artists, such as the seven on the APY Lands, are businesses that manage the legislative requirements of incorporation, (which are in themselves a safeguard, and some of which were duplicated as minimum requirements in a previous version of the Code). These artist-owned businesses maintain a sophisticated level of administration and financial management. For example they are already developing family agreements and contractual agreements with artists. A key aspect of the structure of these organisations is governance by an elected Board or Executive committee, depending on the legislation, of Aboriginal members.

In our opinion these business practices are basic and important in protecting the interests of artists.

Regarding the statement by ArtsLaw under Clause 3 Definitions that Art centre should read “means an Indigenous”. The words “legally constituted” are unnecessary and could operate to exclude certain art centres, for example where the art centre is merely a business division of a Council or Aboriginal Corporation with no separate legal standing, we would make the following suggestion:

We agree that this is a complex issue, because Art Centres which are part of a Council or Aboriginal Corporation cannot necessarily protect the interests of the artists, and while we do not wish to criticise any particular project, art centres which are not incorporated have been a source of particular problems created by private dealers. At the same time, there are exemplary art centres that operate as a project or arm of an Aboriginal Council, because that Council is managed in an exemplary way.

We suggest that the definition reads “Art centre means a legally constituted Indigenous owned and governed organisation of which the artist is a member, primarily concerned with the production and sale of the artwork and acting as an agent for the benefit of its members artists; OR an arts project which is formally auspiced by a legally constituted Indigenous owned and governed organisation.”

While this wording seems cumbersome it may go some way towards deterring anyone who seeks to represent a private enterprise as an Indigenous arts centre.

13. We support the changes to wording proposed in the ArtsLaw submission in the remainder of the document.

14. Ananguku Arts supports a minimum 40 % payment to Indigenous artists, while bearing in mind that an artist may choose to donate income back to an art centre. We understand that in regard to artists payments and the matter of non-monetary remuneration in the form of motor vehicles and the setting of a minimum payment percentage, formal advice is being sought from the Australian Taxation Office and the Australian Competition and Consumer Commission.

15.  We understand that the Minister for the Arts will address the matter of public galleries with State and Territory counterparts through the Cultural Ministers Council and ask that the outcome of this discussion be made public or incorporated into the Code.