Darwin Community Legal Service

Lucinda Watson
Outreach Worker and Coordinator of Rights on Show
Darwin Community Legal Service

Please see attached supporting cover letter written by Caitlin Perry, Coordinator of Darwin Community Legal Service and submission written by Lucinda Watson, Outreach Worker and Coordinator of Rights on Show, Darwin Community Legal Service.

Introduction

Darwin Community Legal Service (DCLS) is a Non Government organisation established in 1991. We provide a number of free services including legal advice on civil matters, referrals to other agencies, aged and disability rights advocacy, welfare rights advocacy, Tenants Advice service, Community education, publications, law reform for the disadvantaged, Human Rights advocacy and the consideration of public interest law.

DCLS welcomes the opportunity to comment on the Australian Indigenous Art Code Of Conduct Consultation Draft (‘the Code’) and we support the fact that the Code is aimed at addressing a number of apparent social injustices and problems that impinge on the human rights of those involved in this industry.

Indigenous artists are culturally and linguistically diverse and relevant communication tools must be utilised to ensure artists are aware of and understand their rights and responsibilities in relation to the Code.

The Indigenous Art industry is culturally and socially diverse but also economically and geographically different from other industries.

Incentives to participate in the Code will increase the coverage of participation and the likelihood of achieving the Code’s set objectives.

Industry wide participation will also provide a confidence in the strength of the Code by stakeholders and provide an ethical commercial market choice for the primary industry stakeholders – the artists.

Darwin specific Issues and market behaviour

The Indigenous population in the Northern Territory are unquestionably disadvantaged in the spheres of education, employment, social and economic opportunity.

There is no available data that has been collected primarily for the purpose of quantifying the number of Indigenous artists or their agent’s who sell artwork independently from art centres in Darwin.

Darwin market choices to Indigenous artists include commercial galleries and dealers who pay cash up front and art centres who sell their artwork on consignment.

Many Indigenous artists live in Darwin and many sell their artwork to commercial galleries for cash or an art centre on consignment.

Many artists regularly travel to the City with their families for various reasons and during their stay will usually access services, visit family, attend music and sporting events or meetings.

Most Indigenous artists from remote Communities are associated with a particular Community art centre but many artists can and do sell their artwork in the cities independently.

Often the money they receive from selling artwork in the City is used to meet immediate expenses such as the costs of accommodation, food, clothing, entertainment, travel or the fuel they need to get back home.

Financial stress and family needs contribute to the artist market choice and often the artists will agree on an instant a cash payment, even if the amount is less than the art centre.

Indigenous artists have been the target of unethical behaviour in the industry for many years but have not been seen as the target audience for Government funded education on their rights as Indigenous artists.

Provisions of the Code

9. Cooling-off period

(1) An artist may terminate an artwork agreement within:
(a) 14 days of entering into the artwork agreement; or
(b) such longer period as is agreed between the parties to the artwork agreement and specified in the artwork agreement.

(2) Any artwork that was supplied to the dealer under the agreement before the termination is governed by the terms of the agreement.

(3) Any payment that was made for artwork that would have been supplied to the dealer, is to be returned to the party who made the payment within 14 days of the termination of the agreement.

A cooling off period is necessary to protect an artist’s right to assess a transaction, however we are of the view that the proposed time frame is excessive.

This provision in the draft allows artwork under terms of the agreement be sold to a dealer then resold to a third party within a 14 day period.

It would appear to a consumer that the transaction is then complete.

Commercial retail Indigenous Art outlets sell artworks to locals, national travelers, International tourists and online. If artists choose to terminate an agreement in the proposed timeframe, retrieving resold artwork may be difficult, if not impossible to achieve.

We recommend a shorter period of 5 days as an appropriate period to allow artists to consider the transaction and still enable business efficacy for all parties.

This provision should include a sub clause prohibiting artworks being sold to a party within the cooling off period to avoid potential disputes and will ensure that signatories bound by code rules will be able to comply with an artist’s request to terminate an agreement and return works.

This will contribute to confidence in the Code and the commercial market, improving the quality of transactions and customer service.

The cooling off period however, regardless of it’s length will not address the complications associated with payment in goods

other than cash. The code allows an artist to terminate an agreement within the cooling off period after receiving payment in goods and services other than cash. Transactions involving the provision of accommodation, for example, cannot be returned within the cooling off period to a dealer if an artist decides to terminate an agreement.

Consequently, this proposed provision in the draft code is bound to cause problems, regardless of it’s length and further consideration should be given to other methods of securing the desired outcome of the cooling off period.

10. Payment for artists

(d) If the payment is to be provided in the form other than cash then a reasonable market value of the remuneration must be stated

We are of the view that this provision should be excluded, as the term ‘reasonable market value’ is neither defined in the code nor easily quantifiable generally. There are also differing ideas of reasonable market value throughout the various sectors of the art industry.

Usually it is the art dealer who will provide the same non-cash payment and therefore decide on a reciprocal ‘reasonable market value’.

There is no further guidance concerning the determination of the ‘reasonable market value’ of any non-cash payment in the Code and the potential to exploit this point is obvious.

The proposed non-cash payment provision allows art to be paid for with a second hand car, not considering that a dealer may also be a second hand car dealer. Artists in remote regions are disadvantaged in accessing goods and services and comparative market valuation.

This provision does not address incidents of payment in faulty goods other than cash such as the need for mechanical repairs of a car.

The code currently has no provision requiring dealers to provide receipt of purchase in relation to goods, only cash. Receipts should be provided to the recipient artist, not only for proof of purchase but so they can be used for tax purposes and access to warranties, if need be.

It is important that artists understand their rights and responsibilities and have access to legal advice.

21. Complaints handling system

(1) Signatories to the Code will:

(a) commit to the efficient and fair resolution of complaints by developing detailed procedures for complaint handling within their operations:

A clear complaints handling system would increase artists and consumers confidence in the security of their interests during any sale transaction and will assist in determining the scope of the Code in this regard. Signatories to the Code should be careful, however, not to develop a system that is so complex it cannot be easily understood and accessed by all stakeholders. The effective delivery of information about any complaints system should ensure that artists understand their rights and responsibilities in relation to the Code.

(c) publish the complaints handling procedures where they can be readily seen and accessed by staff, artists, other dealers and other interested parties:

We suggest that this provision include a specific reference to the requirement that these procedures be included on any websites where the sale of works may occur online. Consideration must be given to including the requirement that the complaints procedures are not only very visible to all stakeholders but also that they are displayed in the most common Aboriginal languages such as Kreol.

22. Dispute resolution

(2) The cost of the mediation will be borne equally by the parties to the mediation, and all issues relating to costs and payment for the mediation will be agreed upon prior to the commencement of the mediation process.

This provision indicates that artists will incur costs if they engage in the dispute resolution process and this may act as a deterrent for artists who want to pursue their rights.

In the event where parties do not agree to proceed to mediation, we recommend that the Code require the dealer to provide the artist with details of legal aid, a community legal service and private solicitor.

How a Code can support minimum standards

The objectives of the Code may be met by ensuring that the Code is well publicised and an education and awareness programme concerning the Code’s minimum standards are launched along with the Code.

Participation in the voluntary Code should increase the acceptance of industry minimum standards generally. However, to convince dealers of the increased benefits of the Code will require ongoing work from both Government and non-government agencies such as Arts NT, Tourism NT, Top End Arts, the Darwin Festival and ANKAAA.

The NT Government appears to support events and publications that often promote Indigenous Art Dealers and NATSIAA allow agent representation of entrants. The provision of support and the promoting of services by allocating funding and promotion in published medium should be limited to those who are signatories of the Code as a further incentive for dealers to embrace it’s guidelines.

The Code proposes to acknowledge signatories by listing them on a website. This will be of limited benefit to artists because many artists do not have access to the Internet. We would recommend that a dealer be issued with a certificate that is to be displayed along with the complaints handling procedure, which would enable an artist selling artwork to identify a dealer bound by Code rules.

Visible registration would also increase awareness of the Code and the identification of registered dealers and galleries. A certificate may also increase consumer education and influence consumer market choice.

Effective community and artist education concerning the Code and its requirements will contribute to the understanding as a whole, of ethical minimum standards and what is acceptable in the industry.

Government funding for regional community education campaigns concerning the Code will be of benefit to stakeholders and Consumers.