Tim Acker

Tim Acker
Freelance independent arts consultant

DRAFT AUSTRALIAN INDIGENOUS ART COMMERCIAL CODE OF CONDUCT

In my professional capacity working Aboriginal artists and art centres in northern, central and western Australia I would like to offer the comments and feedback on the following sections of the draft Code:

DEALINGS WITH ARTISTS:

The ambition of the Code in dealing with the variety of ways in which Aboriginal artists can interact with the commercial is to be commended. However, the majority of artists affected by unconscionable and unethical conduct are, almost without exception, financially marginalised. The non-cash economy can be an important avenue by which artists access services and supplies, particularly in environments where access to financial and other services and supplies is extremely limited.

At the centre of this complex, inter-cultural issue is the equity of the exchange: if the goods being supplied are a legitimate, accountable and defensible exchange for the work of art, then such transactions may not, in fact, be unethical. I fully acknowledge that while the non-cash remuneration for artworks is often central to the deceit at the centre of ‘carpetbagging’, a code that does not acknowledge the reality of the circumstances by which artists engage with the economy will lose some important traction.

One of the main challenges for the Code is in remaining relevant in the face of the significant non-cash transactions at work within some sections of the industry.

ARTWORK AGREEMENTS

The distinctions between agent, dealer and gallery should be retained and the clarity of the accountabilities enhanced. However, without the templates to comment on it is difficult to provide specific comment. Critical to the success of these agreements (and effectively underpinning the integrity of the system), is the process by which these agreements are made, their defensibility and the management and oversight of these agreements (additional comments on the administration of the Code are given later).

In what circumstances is an artwork agreement required? For the sale of an individual work, or when a more substantial relationship is being codified? Would an agreement cover a single transaction (whether sale, or exhibition, or representation) or be made for a fixed period? Would the agreement be made relating to any specific territory, or apply nationally? Would the agreement be contestable – meaning if an artist has some form of agreement with one agent/dealer/gallery, and signs another similar agreement with a further agent/dealer/gallery, is there potential for conflict or contestation. In which category are art centres and is their agreement separate to, or within their existing operational protocols?

It is acknowledged that many of these questions will only be answered as they are tested by the Code and various protagonists over time. However, this is also a key area (and potential hindrance to the efficacy of the Code.

CODE ADMINISTRATION

The supervision and enforcement of this Code appear to the weakest parts of the draft Code – and simultaneously the one area that will define its success and credibility. The role of the Code Administration Committee is legitimate; realising this Committee appears complex and expensive.

Issues to be addressed include all aspects of the Committee’s governance and structure, so that it retains industry credibility. Balanced against this is a need to be responsive to the complexity and geography of the industry and, critically, the resources that the Committee can draw on. To function effectively, the Code Committee will likely need access to a permanent ‘secretariat’ that administers the day-to-day functions of the Committee. The lack of details of the structure, resources and mandate of the Committee makes detailed feedback impossible.

However, within the current proposed Code of Conduct, the Committee remains the single most critical success factor.

PUBLIC EDUCATION

In attempting to create a formal structure around compliance and trade practices, the Code of Conduct is to be commended. Notwithstanding the considerable challenges in creating a legitimate Code Administration Committee, the other critical issue in addressing unethical and unscrupulous behaviour is consumer education. The Code will have little recognition and value if consumers are neither aware of the Code, nor able to use the leverage the Code provides in guiding their Indigenous art purchases.

While the Code of Conduct is critical, particularly if synchronised with other initiatives by agencies such as the ATO etc, the single biggest impact on trade practices will come from informed consumers. Consumers who ask relevant questions at the point of sale and chose one artwork over another, based on the retailers’ compliance with a code of conduct and ethics will be an enormously powerful force within the industry. It is essential that a consumer awareness campaign – targeting different layers of the industry – is undertaken: informed consumers both benefit from, and push forward an effective Code.

The Code of Conduct offers a powerful marketing opportunity for astute galleries, dealers and agents. This commercial advantage has a value throughout the industry’s supply chain, and if the implementation and management of the Code of Conduct is correctly articulated, the marketplace advantage is considerable. In effect, the Code of Conduct becomes an accreditation process – which in turn offers the newly ‘accredited’ gallery/dealer a competitive advantage.