The Dealer is the Devil

by Adrian Newstead

  Upon spending any time in this beautiful area, it may seem almost impossible to understand why despair would reach such tragic proportions here. It looks like a heavenly place, but steel spikes festoon the power poles to discourage climbers. I’ve been visiting regularly since my daughter was 12 years of age. I proposed to Anne there, and my grandsons are Tiwi. This was the first traditional Indigenous community I ever became a part of. The waters sparkle beside the coconut palms and bougainvillea but, as in so many Aboriginal communities, there is not much work. As traditional life is also diminished, young people rot on welfare, and alcoholism and domestic violence are rife. Across Australia, 50% of the inmates of our jails are of Aboriginal descent, yet they comprise just 2.5% of the Australian population. Aboriginal people suffer far more than their fair share of illiteracy, substance abuse, poverty and ill health. Their infant mortality rate is unacceptably high. I have visited schools in Lajamanu and dozens of similar communities, with no facilities or syllabus for children beyond the age of 12.

  Not surprisingly, Australia has a tiny black middle class. Too few Aboriginal people become plumbers, carpenters, lawyers, doctors and teachers. Most have limited opportunities to engage in commerce. It is a sad fact that in the age of ‘self-determination’ just about every meaningful job in remote Aboriginal communities is still done by white contractors brought in from outside. Training schemes abound but very few lead to real jobs. Ironically, these communities are the product of former policies which were, as the Aboriginal lawyer and activist Noel Pearson has noted, devised ‘in their best interests’ by bureaucrats and politicians.60 Today, the number of white people telling Aboriginal people how to live their lives constitutes an entire industry in itself.

  Mainstream Australians are not entirely indifferent to this parlous state of affairs. More than 250,000 people walked across the Sydney Harbour Bridge in June 2000, to show support for Aboriginal Reconciliation. Seven years later, however, Australia’s conservative Prime Minister, John Howard, was still refusing to say ‘sorry’ for the forced removal of Aboriginal children from their families and communities by welfare authorities throughout the previous century.

  Instead Howard chose to promote the notion that white people had become the victims of a ‘black armband’ reconstruction of Australian history. He’d dismantled the Aboriginal and Torres Strait Islander Commission (ATSIC) in a direct attack on Aboriginal political autonomy. Now, as he confronted a weary electorate in the mood for change, Howard desperately needed a touchstone issue. In June 2007, he seized upon a Northern Territory government report into child abuse in Aboriginal communities: Little Children Are Sacred. Endemic poverty, alienation, disadvantage and violence had been well documented and ignored by successive governments for decades, including Howard’s 12-year watch. Yet within two weeks of receiving the report, he declared a state of emergency in the Northern Territory, and sent the army and police into Aboriginal communities.

  Under the ‘Intervention’ the permit system for access to Aboriginal land, which had protected remote communities from the depredations of intruders for decades, was removed. Community Development and Employment Programs (CDEP) were abolished, thereby putting the majority of people out of work. English replaced Aboriginal languages in schools, and income was quarantined and could only be accessed using a special card. The Commonwealth Racial Discrimination Act 1975 was suspended. Aboriginal land was compulsorily acquired, and Aboriginal people were expected to lease property to the government in return for basic services such as water and electricity.

  In the years since, the continuing Intervention has forced people to move to areas where education and medical services can be delivered to large concentrated populations. This approach has decimated many small Aboriginal communities and increased the number of fringe dwellers, creating hot-beds of social dysfunction in big towns which then channel into Aboriginal crime rates.61

  I was assured by Cecilia Alfonso, manager of Warlukurlangu Artists-Yuendumu, during one of my many visits to her community, that:

  People do want services, but they don’t want ill-conceived, rushed, badly thought through government programs that pull the rug out from under programs that were actually working.

  Will Stubbs, art centre coordinator at Yirrkala’s Buku-Larrnggay Mulka, agrees:

  The real issue is the overlay of government bodies, overspend on government consultants flying in and out, and the constant changeability and variation of laws and regulations. All this in combination with the amalgamation of shires has definitely been disempowering. It’s just more white-board sophistry by ignorant Canberrans.

  Stubbs’ very articulate wife, Dhalulu Ganambarr-Stubbs, has made an extremely powerful video with Our Generation Media.62 Here she discusses the impact of the Intervention:

  We were made to feel like criminals in our own land and we lost all control of our lives. Five years on, what do we see? After millions of dollars spent by the government the policy has failed. Indigenous imprisonment has risen by 45%, school attendance has dropped, our houses are still overcrowded, the number of our children being taken away by social services has increased 38%. Cases of self-harm and suicide have doubled and our people are dying younger than ever before. Our communities are at breaking point. Both sides of government have recognised that the top/down approach of the Intervention was wrong. The United Nations has even condemned it as a breach of international law … If policies are ever going to work for my people we have to be involved in creating them.

  Yet despite opposition by human rights groups the federal government plans to continue key parts of the Intervention for ten more years.

  Speaking of ‘white-board sophistry by ignorant Canberrans’, the Northern Territory Intervention has its parallel in the Indigenous art world. During 2007, 12 months before the onset of the Global Financial Crisis, the Aboriginal art market was in the most buoyant state of its history. The Alice Springs art trade was, however, described by Nicolas Rothwell as totally dysfunctional and exploitative.63 The rumour mill waxed lyrical about pastoralists who had made millions ‘breeding up’ Aboriginal art, shopkeepers who had swapped Viagra for paintings, and taxi drivers who had paid for art with takeaway chicken. But despite many instances of exploitation, the corruption was never systemic. In my experience the overwhelming majority of people in the industry have been sincerely motivated.

  Rothwell’s story, combined with the cumulative weight of scandals and some instances of commercial skullduggery, prompted a Senate inquiry into Australia’s Indigenous visual arts and craft sector.64 This inquiry received 91 separate submissions. Its final report recommended increased funding to art centres, but stopped short of recommending resale royalties, the long-held dream of the National Association for the Visual Arts (NAVA) and the copyright agency, Viscopy.

  Simultaneously, NAVA was developing an Indigenous commercial code of conduct.65 The Australia Council’s Lydia Miller, and federal arts department representatives, took the draft code to regional centres and capital cities throughout the country.

  In 2010, the incoming Labor government announced it would give the industry two years to self-regulate. If this failed to ‘clean up the industry’, the Indigenous Art Code would then become mandatory. A sum of $550,000 in federal funding was allocated for the introduction and promotion of the Code. Most of the independent dealers and many remote art centres signed on. The Indigenous Art Trade Association (Art.Trade) required all of its members to join. But most members of the Australian Commercial Galleries Association declined. They considered independent dealers, retailers and non-exhibiting galleries déclassé, and all but one refused to be associated with them under any circumstances.

  The Senate committee’s major recommendation was to boost funding for art centres. This was welcomed by arts advocates, and there are now more than 80 funded art centres nationwide. But despite an abundance of high-quality craft to feed tourist demand, the fecundity of product has had a significant downside. The overproduction of
second-rate rectangular artefacts is morphing a rich material heritage into commercial, far less meaningful ‘product’. Art centre overheads are so formidable that the work of young and emerging artists is pitched far too high, and there is too much of it. Art centres are heavily reliant upon the income generated by the most talented painters whose work is the most highly prized. These artists often want immediate payment and will go wherever they can get it. Without government agencies actively promoting Aboriginal culture abroad by supporting big touring exhibitions, as they did in the 1970s, there is nowhere for all this ‘product’ to go.

  After fierce editing of the original 115 pages, the Indigenous Art Code ended running to just nine pages, and was essentially not all that different to the Code of Conduct and Commercial Practice developed by Art.Trade in the late 1990s. The Art.Trade Board couldn’t get a penny from the government to help the industry to self-regulate then, and the same people who refused to join us at the end of the 1990s rejected the Indigenous Art Code again in 2010. The Code quite rightly talks about fairness, equity and transparency, but it can’t stop the infighting and the inevitable demarcation disputes. In fact it has emboldened art centres to accuse dealers of encouraging ‘their artists’ to stray. The likely outcome is that dealers will end up having to spend tens of thousands of dollars to defend their actions against vexatious claims brought against them.

  Consequently, several art centres have insisted that their artists sign exclusive contracts since the Code was introduced, and have threatened legal and social consequences if they break them. One actually sent its most famous artist to Coventry for six weeks, refusing to buy her works in retribution for working with an Alice Springs dealer. Given that many artists are often the only members of their communities with high disposable incomes, such punitive actions also affect the artist’s network of dependent relatives. It’s a lose, lose, lose situation, and in my view an unconscionable restraint of trade. In fairness to the Code Board, it has recommended a number of amendments to exclusive contracts that include independent advice from an appropriate interpreter. At the time of writing, industry principles have been drawn up and recommendations for a ‘mandatory’ code are being considered by the federal government.

  Although the Senate inquiry did not recommend the introduction of a resale royalty right for visual artists, its proponents66 argued it was necessary to address Indigenous disadvantage. One year later, resale royalties were introduced by the ex-rockstar, Labor government Environment Minister, Peter Garrett, as an individual right. They extend to all Australian artists, and require the owner of an artwork to pay a 5% royalty upon its sale. In correspondence with me in 2012, however, Jim Alexander, the CEO of the collecting agency that manages the scheme, Copyright Agency Limited, said that:

  We are a rights management company … our task is to direct money to those artists whose works are resold … our corporate activity does not extend to identifying and attempting to address the social welfare needs of artists or communities.67

  The key point is that in the white art market the first sale is almost always made from the gallery. The royalty therefore only applies when the work is sold by the collector at auction or privately. This does not in any way affect the primary market. By contrast, Aboriginal artists sell their work to an art centre or a private wholesaler. The art centre then sells as much as it can through the internet or to dealers and galleries, which are, in effect, actually in competition for sales with their suppliers. Galleries and dealers that want the best works must buy them from art centres or wholesalers and therefore are already liable to pay a resale royalty on the second sale. This is before they even have the opportunity to offer the work to a client. So the royalty hits the gallery or dealer by adding at least 10% to prices, even though the artwork may never be accepted into an auction. On top of that, when dealers sell artworks they have to pay reproduction fees on the images if they use them to promote the sale in any way (for example, through catalogues, posters and advertisements). So, in effect, the resale royalty is a double hit – yet another impediment to trade. In the journey of any given Aboriginal artwork there can be more than four or five links in the chain. For example, the art centre buys from the artist, a wholesaler buys it from the art centre, it is then sold to a local gallery, which sells it to an overseas gallery, and from there it is sold to a client. A resale royalty is paid, with a 10% administrative fee taken by the copyright collecting agency, every time. As you can imagine, this adds considerably to the price of the painting at the end of the chain.

  At the time of the Senate inquiry, there was a somewhat naive perception that white people were making a killing off the Aboriginal art industry, and that this would continue for decades to come.68 The 5% resale royalty is predicated on the notion that the majority of art increases in value. And it has to be paid regardless of whether the painting sells for more or less then was paid for it.

  There is, however, a skeleton in the closet – one that galleries, for good reason, are loathe to raise with their clients. The vast majority of art actually loses value, in real terms, over time. Only a tiny proportion of art is a ‘good investment’. So in effect, the investor/seller often pays 5% on a painting that has lost value in real terms. I can think of no other business in which a transaction like this is imposed upon the market. In the music industry a composer gets a royalty every time his or her music is reproduced. But in the art world, some paintings are never resold, and others, through accident as often as design, are continually sold and resold. Thus resale royalty benefits some artists, but others not at all. One need only look to France, the first country to introduce such a scheme more than 80 years ago. Today, in that country, the majority of the money collected in resale royalties goes into the estates of six dead, white, male artists.

  If it was designed to help Aboriginal artists, the royalty will benefit but a few. Rover Thomas, for instance, has only one heir who is likely to become much wealthier than anyone else in her community on the proceeds of his resale royalties. Though many paintings attributed to him have been rejected as suspect, there is no mechanism in place to prove this one way or the other. So should his daughter receive royalties from sales of the alleged ‘fakes’?69 In the case of Emily Kngwarreye, who died intestate, there are currently dozens of people fighting to claim the money. Who will make all the dough? The lawyers.

  In 2001, the British lobby group Artists Against Droit de Suite, which included David Hockney, Karel Appel and Emma Sergeant, argued that the scheme, while designed to benefit artists, actually creates a shameful inequality between famous artists on the one hand and struggling artists on the other.70

  In the Indigenous context this means the few ‘descendants of famous artists’ inherit privileges alien to the majority of living artists and their families. This compounds the fact that the money raised by taxing the Australian population at large does not adequately fund Aboriginal schools and utilities such as water and electricity in these remote communities.

  In effect, the resale royalty is yet another form of passive welfare. None of this money will ever go into community development or address Indigenous disadvantage.

  It has to be said that without the materials and support provided by art centres, few Aboriginal artists in remote communities could ever have participated in the art market. If resale royalties were not conceived as an individual right, a tithe on the resale of paintings could have been made payable to the community art centres. This really could have made a difference to people’s lives. It could have been used to facilitate cultural activities, provide benevolent funds for aged and sick artists, and improve community resources. In fact, before a resale royalty scheme existed, the Aboriginal Benefits Foundation (ABF) was started in 2004 for just such a purpose. Through the ABF I have witnessed the enormous amount of goodwill exhibited by collectors of Aboriginal art. It continues to funnel money into projects in needy Aboriginal communities. Collectors can donate works of art to the ABF and the income generated is
directly applied to areas of need.71 Politicians actually think they have done something positive by introducing their flawed scheme. But all they’ve done is put negative restraints on the art market.

  Unfortunately, resale royalties will never address the problems facing our Aboriginal brothers and sisters. People like Dhalulu Ganambarr-Stubbs are looking for a hand up, not a hand-out. As Yothu Yindi sang, ‘Yolgnu ga Balanda, lets work together’.

  IT’S NOT JUST BLACK AND WHITE

  The campfire under a frangipani tree in our backyard in Bondi has been burning on and off for decades. If I close my eyes I can see the flickering faces of the hundreds of people, black and white, who have gathered around that paved brick circle. Elders from all around the globe – Sami, Maori, Iroquois and Hopi Indians, Inupiat Inuit and many great (and not so great) Australians. My mind soars on the wafting smoke to all the different parts of this vast country our friends have come from: the tough dry outback towns, with their gravel roads studded with road-kill and abandoned cars; the white sands of the pearling coast; the tidal swells of the Arafura Sea and the fertile estuaries of Arnhem Land.

  Despite the temptation, I’m not going to paint an exclusively pretty picture. Around the campfire there have been arguments, fallings out, even fist fights on rare occasions. Passions have run high. I recall the occasion on which my wife roundly berated David Gulpilil by demanding: ‘If you are going to drink that beer all day, for Christ’s sake crush the bloody cans!’