Australian Commercial Galleries Association

Beverly Knight
National President
Australian Commercial Galleries Association

The Australian Commercial Galleries Association (ACGA) presents the attached submission in relation to the Australian Indigenous Commercial Code of Conduct.

The ACGA supports the introduction of an Indigenous Commercial Code of Conduct (Code), and has played a central role in its development through the input of its members, in particular National President Beverly Knight who is represented on the Code Reference Committee. Nonetheless the ACGA is concerned about elements of the draft Code. We attach to this letter an outline of the issues and concerns we have in relation to the draft Code (Attachment A).

The ACGA has long campaigned for the need for a code of conduct covering the Australian Indigenous art market. At the forefront of the minds of ACGA members is a strong commitment to the ethical representation of living Australian artists. Our members include the major galleries representing Indigenous Australian artists and therefore are informed about issues relating to Indigenous people.

Nonetheless, our members are concerned about the complex and prescriptive nature of the current draft Code and the potential difficulties ethical operators may face navigating and complying with the draft Code. In particular the ACGA is concerned that the Code effectively distinguishes between the key relationships between artists, art centres, primary market galleries, dealers and auction houses and effectively outlines the roles and responsibilities of all those operating in the Indigenous art market. Clarifying these relationships and where the primary market starts and finishes is vital.

We emphasise that we are interested in working with the Australian Government in furthering the interests of Indigenous Australian artists and the Australian art market.

Yours sincerely

Beverly Knight
National President

Phoebe Dunn
Chief Executive Officer

Australian Commercial Galleries Association

INDIGENOUS COMMERCIAL CODE OF CONDUCT CONSULTATION DRAFT
AUSTRALIAN COMMERCIAL GALLERIES ASSOCIATION SUBMISSION

GENERAL COMMENTS

Introduction

For the reasons outlined in the cover letter to this submission, the ACGA’s comments on the draft Indigenous Commercial Code of conduct (Code) are made in the spirit of trying to achieve the best possible outcome for Indigenous Australian artists and ethical operators in the Australian art market generally.

The ACGA is of the view that the Code should be designed to:

• Operate on the basis of key principles
• Appropriately differentiate between the key relationships between artists, art centres and dealer/commercial gallery
• Improve transparency in the Indigenous art market.

Understanding the primary market, especially with respect to Indigenous Australian artists, is complex. We are concerned that the Code, as currently drafted, does not appropriately differentiate between the primary and secondary markets, and the complex tri-partite relationship between artists, art centres and art dealers/commercial galleries.

The draft Code is too complex

The ACGA is concerned that the draft Code is overly complex and prescriptive. The ACGA supports the stated objectives of the draft Code – ‘to achieve effective application of minimum standards around core transactions’, and to ‘improve transparency in those transactions’. However, the ACGA is of the view that the minimum standards and core principles get lost in the complexity and length of the draft Code.

The ACGA would prefer to see a draft Code that focuses on core principles in a simple and easy to understand format. To be effective and accessible the ACGA believes the draft Code should be able to be understood by those in the industry and the general public alike. As currently drafted the ACGA is of the view that the Code contains unnecessary jargon and too much detail to easily understood. The ACGA believes the draft code should be stripped back to core principles. Where necessary, additional detail can be contained in best practice guidelines and fact sheets.

The ACCC’s publications such as: ‘Your consumer rights: Indigenous art & craft – thinking about buying Indigenous art?’ (http://www.accc.gov.au/content/index.phtml/itemId/798343); and ‘Unconscionable Conduct in the Indigenous Art and Craft Sector – small business fact sheet’ (http://www.accc.gov.au/content/index.phtml/itemId/815757) offer useful examples.

We also note that the ACGA is working with Melbourne University on a series of fact sheets dealing with problematic art works in a similar format. These fact sheets are designed to provide practical assistance for the arts industry and the general public in relation to problematic works. These fact sheets are intended as a precursor to the development of an Industry Code of Practice on problematic works.

In February this year the ACGA and Melbourne University held a fact sheet development workshop to seek industry contribution to these drafts. The purpose of the workshop was to bring together experts and interested parties to consider and discuss the draft fact sheets, to ensure accuracy and effectiveness, and future take up by the industry and public alike. We will also be incorporating any written comments we receive on the drafts. The current drafts are available at: http://www.acga.com.au/resources/cid/61/parent/0/pid/61/t/resources/title/problematicartworksfactsheets 

We would be happy to discuss with you how the work of the ACGA and Melbourne University on problematic art works might tie into the Code.

Key relationships

The ACGA is concerned that the draft Code does not effectively distinguish between the key relationships between artists, art centres, primary market galleries, dealers and auction houses. The ACGA is of the view that the Code should in simple terms outline the roles and responsibilities of all those operating in the Indigenous art market. Clarifying these relationships and where the primary market starts and finishes is vital.

Transparency

The ACGA fully supports the stated objective of the draft Code – to improve transparency. The ACGA is concerned that the draft Code falls short of this stated objective. In particular, the ACGA is concerned that the draft Code only focuses on transparency of transactions of dealers, galleries and the like, and not on artists and art centres.

The draft Code appears to make assumptions about where unconscionable conduct occurs in the transaction. Mischief can be and is perpetrated at all levels in the art world – starting with production. Our experience with problematic art works is just one example. To be truly effective in its stated intention the draft Code needs to strive for transparency in all stages of the process.

For example, at the moment, many art centres are not subject to the GST, and retain up to 50% of the artist’s share of the sale price. This means that where a commercial gallery sells a work on commission and returns 60% of the wall price to the art centre, it is not clear what sum is then returned to the artists. This is not widely understood and there appears little transparency about how art centres handle the financial aspects of their relationships with the artists they represent.

The ACGA is fully supportive of the art centre model and the vital role played by art centres in the Indigenous art market. We use the above example to demonstrate that transparency is important at all stages in the process. Improving transparency across the board will help to discourage unethical operators, and reduce the instance of problematic art works in the market place.

SPECIFIC COMMENTS

Definitions

Art centre
The words ‘the benefit of’ in the penultimate line should be deleted. This implies that only art centres act for the benefit of Indigenous artists.

Artist’s representative
The definition as currently drafted is not widely understood. The distinction between agent, artist’s representative, art centre etc needs further clarification.

Auction house
We note that there is no definition of auction house in the draft Code.

Commercial art gallery
We note that this definition is not used in the document, rather the Code refers to ‘art gallery’ throughout.

A distinction needs to be made between those commercial galleries that represent artists in the true sense (including through exhibiting, promoting and selling their works), such as members of the ACGA, and other commercial galleries that operate on a resale basis and are more akin to shops.

In respect of commercial galleries that represent artists, such as galleries who are members of the ACGA, the definition should be amended to reflect the representative role played by them, along the following lines: ‘means a gallery that is committed to the exhibiting, marketing and promotion of the artwork for sale and representation of the artist’.

GST
We note there is no definition of GST.

Payment
We note that the definition of payment appears wide enough to encompass payment in other than legal tender. We are deeply concerned that the draft Code contemplates payment for works in other than legal tender.

Clause 4 – Application
We note that clause 4(6) include a three month moratorium in respect of sanctions. We think that there should be a substantial education campaign on the introduction of the Code and that the length of the moratorium should be considered in light of the extent and effectiveness of the education campaign.

Clause 5(1)
Delete ‘the’ in the first line where it appears before the word ‘artist’ and replace with the word ‘an’.

Clause 5(2)(j))
The ACGA is extremely concerned that the Code contemplates payment for art works in other than legal tender. This clause should be extended to refer to sex, food, cars, TV’s and other like objects.

Clause 7
The ACGA would like to see the draft template in Annexure A before finalising its comments.

Clause 8
The ACGA is of the view that this clause is overly lengthy and complex. The ACGA is of the view that the draft Code would be improved if the detail of this clause were contained in an annexure.

Clause 8(4)(a)
The ACGA would like to see the draft template in Annexure A before finalising its comments.

Clause 8(4)(b)
Delete the word ‘prove’ and replace with the word ‘provide’ in the first line and add the word ‘the’ after the word ‘with’ in the second line.

Clause 10(1)(d)
The ACGA is extremely concerned that the Code contemplates payment for art works in other than by legal tender. The ACGA would be extremely reluctant to recommend that its members sign up to the Code if this clause is retained in its current form.

Clause 10(1)(e)
We are unclear why this clause is necessary. We are of the view that remuneration should always be determined by quality and not quantity.

Clause 11(2)
Definition of ‘Bad debt; should be inserted into the definition section.

Clause 13(2)(a)
This should refer to provenance and authenticity of the artwork.

Clause 14(2)
Definition of ‘certificate of provenance’; should be inserted into the definition section.

Clause 14(3)
Insert the following new sub-clauses:
(e) – ‘stock or reference number’
(f) – ‘medium’.

Clause 15(d)
This should refer to taking reasonable steps to obtain the consent of the artist.

Clause 17(h)
This sub-clause is unnecessary and should be deleted.

Clause 18(1)(c)
Insert the word ‘retail’ before the word ‘price’.

Clause 19
Definitions of ‘committee’ and ‘Code Register’; should be inserted into the definition section.

Clause 21(1)(a)
The detail in this sub-clause is unnecessary – delete the words ‘by developing detailed procedures for complaints handling within their operations’.
Clause 21(1)(b) should be amended by inserting the word ‘appropriate’ after the word ‘adopt’ in the first line.

ATTACHMENT B

About the Australian Commercial Galleries Association

The ACGA is the peak national body representing commercial art galleries in the primary market. It has over fifty members throughout Australia. Importantly, the ACGA is a not for profit body receiving no public funding and is almost entirely supported by annual membership fees. Inevitably this means our resources are tight and that we must add value to our activities where we can.

The ACGA is a strong industry association whose members are directors of among the most important and exciting galleries in Australia with a commitment to professional and ethical practice in the primary visual art market.

The ACGA exists to represent, promote and further the interests of Australian galleries whose core business is the ethical representation of living Australian artists. A central tenet of the ACGA's mission is to develop Australian artists' livelihood and reputation while contributing to an enhanced public understanding of contemporary Australian art in the primary market. Simultaneously the ACGA advocates for recognition of the close, complex and long-term partnership role commercial galleries have with artists.

The ACGA seeks to contribute to the visual arts in a way that enhances understanding of and support for the primary market while cultivating sound entrepreneurial ethics and an ever-strengthening national and international market for Australian art.

The ACGA operates under a federated structure, with State and Territory chapters working in conjunction with a National Board. The current Board members are: Beverly Knight (National President); James Makin, (VIC/TAS Chair and Secretary); Stella Downer (ACT/NSW Chair); Bruce Heiser (QLD Chair); Dr Diane Mossenson (WA Chair), Karen Brown (SA/NT Chair) and Arthur Roe (National Treasurer). Phoebe Dunn is the current Chief Executive Officer of the ACGA.