Aboriginal Art - Code of Conduct

The Australia Council for the Arts and the Department of the Environment, Water, Heritage and the Arts have developed an Indigenous Australian Art Commercial Code of Conduct extending the work begun in 2007-8 by the National Association for the Visual Arts (NAVA), Desart and ANKAAA .

Its aim is to improve fair and ethical practices in the Indigenous visual arts industry and is consistent with Australian Competition and Consumer Commission guidelines for voluntary codes. It specifies a set of minimum standards for dealers, agents and artists, and defines terms of trade, rights and responsibilities for the sale and management of artworks.

Establishing a code of conduct was a key recommendation of the report by the Senate Inquiry report into Indigenous visual arts and crafts, which identified unscrupulous and illegal commercial practices towards Aboriginal artists. An independent issue, the use of a resale royalty, may help to provide useful information for administering the code.

Aboriginal Art Online has contributed to development of the Code over the last two years and we are committed to seeing it put into operation.

A draft version of the Code was released in December 2008 for public comment. Following industry, artist and community consultation, the final version of the Code was endorsed by the Australian Cultural Ministers Council and released on 9 October 2009. An Administrative Committee has been appointed to accept signatories and manage the Code. It is expected to be open for signatories in early 2010.

Scope of the Code

The broad aim of the Code is to promote fair trade and commercial practice in the Indigenous visual arts industry and to promote:

• fair and ethical trade with artists
• transparency in the promotion and sale of artwork
• a fair and equitable dispute resolution system for disputes arising under the Code.

Any persons or entities operating in the Indigenous art industry (such as dealers, agents, art galleries, auction houses and art centres, wholesalers and retailers) may apply to become a signatory to the Code.

Joining the Code as a signatory will be voluntary and once the Code Administration Committee confirms that the dealer's details have been recorded then the dealer will be bound by the Code (the term "dealer" is defined in the draft Code and includes agents, galleries, art centres - anyone who buys artwork for the purpose of re-supply by means of sale, consignment or other distribution).

The Code includes a list of the terms that signatories to the Code will be required to include in agreements about trade in Indigenous artwork. The Code also provides guidance on handling complaints and resolving disputes.

Dealings with Artists

The Code encourages good commercial practice by setting minimum standards for conduct by dealers and the setting of certain rights and responsibilities in relation to the sale and management of artworks.

Its main sections are about:

• dealings with artists
• agreements with artists (including minimum terms, cooling off, payment to artists, etc)
• dealings with artworks (including misleading or deceptive conduct, authenticity, respect for Indigenous cultural practices and artists rights and care of artworks)
• record keeping and reporting.

The core of the Code is about the need for dealers working with artists not to engage in unconscionable conduct towards the artist or an artist's representative and to establish agreements with artists that meet a set of minimum requirements.

Dealings in Artworks

A key part of maintaining confidence about the integrity and honesty of the Aboriginal art market is ensuring that dealers provide accurate and comprehensive information about artworks which they are selling.

The Code provides that a dealer "must not engage in unconscionable conduct towards an artist or an artist’s representative" and that "a dealer must act professionally". A number of types of unprofessional conduct are explicitly listed.

A dealer is also required, when dealing in artworks, not to "make false or misleading representations or engage in misleading or deceptive conduct, or conduct that is likely to mislead or deceive".

In particular, a dealer must not make a representation without reasonable grounds about:

• the authenticity or provenance of an artwork
• any sponsorship, approval or affiliation (including an artist’s affiliation with a dealer or an art centre) of an artist
• the place of origin of the artwork
• whether an artwork has been produced by an Indigenous artist or artists
• the artwork’s exhibition history, reference notes, authenticity statements or price.

The Code provides that a dealer who transacts directly with the artist for the supply or acquisition of an artwork ("the First Dealer") may only supply that artwork to another dealer or person if it is accompanied by a Code certificate. Any other dealer can only supply a Code certificate if it is a Code certificate created by the First Dealer. This provision is intended to tighten the authenticity and documentation link from the artist to subsequent dealers or buyers.

A dealer is also required to respect Indigenous cultural practices by, amongst other things, correctly attributing the work to the artist(s), ensuring that images of artworks and artists are only displayed with proper consent and not marketing or selling secret/sacred objects such as tjuringas or bullroarers.

Administering the Code

While the Code is voluntary for signatories, there is a significant effort associated with its setting up, promotion, administration and enforcement. The Australian Government in the Budget for 2009 provided $600 000 over three years towards this.

The Code will be administered by a Code Administration Committee of industry, artist and other members, supported by a paid secretariat.

Other features of the Code are:

• members will sign up to the Code by completing a standard form and submitting it in writing to the Code Administration Committee
• a register of signatories will be available online
• the Committee will look into any complaints that a signatory has breached the Code
• sanctions will be available for breaches of the code (including possible removal from the register as a Code signatory)

While administration and enforcement are important, the Code will only become effective if both buyers and dealers are aware of the Code and support it - either by buying artworks only from Code signatories or, for dealers, by voluntarily signing the Code and promoting it themselves.

For dealers, becoming a signatory to the Code will be an opportunity to show publicly that they are committed to fair and ethical behaviour.

The Australian Government has made it clear that if a voluntary Code appears not to be working after two years of operation then other action might be needed. This could include a compulsory industry code applying to anyone selling Indigenous visual artworks and a requirement for licensing or accreditation under that code.