The Indigenous Art Code was developed initially in 2007-8 by the National Association for the Visual Arts and then by the Australia Council for the Arts, who worked closely with an Industry Alliance Group made up of artists, Indigenous art centres, commercial art galleries, public art galleries, auction houses and visual arts peak bodies.
After consulting the public and interested groups, the Industry Alliance Group approved a final Code in August 2009. The Code was then endorsed by the Australian Cultural Ministers Council and released on 9 October 2009.
A public company – Indigenous Art Code Limited – was established to administer the Code. The Code company is led by a Board of Directors, drawn from the Indigenous visual arts industry and the wider community.
The Code opened for membership in July 2010. By December 2014 there were 175 Dealer Members, over 160 Indigenous Artist Members and 30 Supporter Members.
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 contributed to development of the Code and was a member of the Board for the first two years; we are committed to supporting its operation.
Scope of the Code
broad aim of the Code is to promote fair trade and commercial practice in the Indigenous visual
arts industry. The Code:
- establishes a set of standards for commercial dealing with Indigenous visual artists;
- provides a benchmark for ethical behaviour; and
- builds greater certainty for consumers that the artworks they buy come through ethical processes.
Any person or entity 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.
The approach taken to approving signatories to the Code is broadly inclusive. This is a deliberate policy.
The initial chair of the Indigenous Art Code, Ron Merkel QC, stated that:
".. it is not the intention of the Code to form an exclusive club, but to raise the standards across the whole of industry. Only once a dealer, gallery or art centre has signed up and committed to uphold the Code, can their behaviour be assessed by the requirements of the Code. In this way, we hope to change the behaviour and raise the standards of the industry as a whole - making those who choose to continue to act outside of these standards or deny the worth of the code, more visible and more accountable for their practices.."
Joining the Code as a signatory is voluntary. Once the Code company confirms that the dealer's details have been recorded then the dealer is bound by the Code (the term "dealer" is defined in the 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 are required
to include in agreements about trade in Indigenous artwork. The Code also
provides guidance on handling complaints and resolving disputes.
There has been some public comment criticising the scope of the Code for its failure to include public galleries, museums and collecting institutions. While these organizations were involved in early discussions about the Commercial Code, they decided to establish their own set of principles in recognition of their different roles and the different issues that they face.
The Charter of Principles for Publicly Funded Collecting Institutions was developed in consultation with state and territory collecting institutions and the national collecting institutions, and was approved by Cultural Ministers in October 2009.
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.
A public company limited by guarantee called Indigenous Art Code Limited was established as the administrative vehicle to provide the governance and legal framework to administer the Code. In joining the Company, Dealers commit to upholding the Code.
Other features of the Code are:
- members sign up to the Code by completing a standard form and submitting it in writing to the Company
- a register of signatories is 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 can only be 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 is an opportunity to show publicly that they are committed to fair and ethical behaviour.
Developments since 2014
In early 2014 the board of the Code company concluded that the Code was not being effective in its voluntary form and they recommended to the Australian government that the code be made mandatory for all sellers of Australian Indigenous art. Neither the previous government nor the current Abbott government have shown any appetite for making the Code mandatory.
As a consequence, the original Chair of the company, Ron Merkel QC, resigned and has been replaced by the deputy chair, Richard England. The previous CEO, John Oster, has also left the Code company and been replaced by Gabrielle Sullivan, who has 12 years experience in administering arts programs for artists at different levels of government.
The new Chair and CEO are likely to bring a different style to operation of the Code, with the Chair emphasising the need to educate remote artists rather than focussing on educating buyers. He sees enforcement of the voluntary Code as requiring closer liaison with enforcement agencies in the future, rather than being achieved through the independent compliance efforts of the Code company.
Most people working in Indigenous arts would agree that there are still real issues of unethical behaviour in its commercial aspects and that some action is required to regulate bad behaviour and to discourage it as well as giving guidance (in the form of a code) on minimum standards of good ethical practice. The need for a Code of conduct is real - and effective promotion and compliance are vital.