Indigenous Law Bulletin
by John Oster
For as long as there has been commercial interest in Indigenous art there has also been debate about commercial trade practices in the Indigenous art industry. Less than two years after Geoffrey Bardon began working so spectacularly with the old men at Papunya in 1971 commercial interests moved in to exploit this new wave of art and Bardon left the community a broken man.
Over time there have been regular and extravagant allegations of corruption. Usually these involve either exploitation of artists or exploitation of the marketplace through the passing off of fake art works.
In the past six months this issue has re-surfaced with allegations of widespread malpractice, particularly in Alice Springs. Dealers are accused of exploitation by operating ‘sweatshops’ and paying for artworks with non-cash benefits such as alcohol, second-hand cars and even Viagra. Artists stand accused of producing works of doubtful authenticity and churning out multiple quick fire art works which undermine substantial careers.
The term ‘Carpetbagger’ is the general industry description for people who deal in this environment. It’s an interesting word. It comes from the time after the American Civil War when shonky dealers moved into the south of America and picked up property and businesses at dirt cheap prices as the local people were forced to sell because they were starving. The dealers could usually be identified by the overnight bags made out of cloth or carpet that they often carried.
Not much has changed. In Alice Springs the same kind of dealers prey upon artists and pay them very low margins, and the deals go down because the artists live in poverty. An immediate cash payment is often irresistible whatever the amount and artists visiting Alice Springs from remote communities are particularly susceptible.
There is a fundamental clash of cultures at work here. The Indigenous art industry is an increasingly sophisticated first world business and artists have real difficulty because of poor numeracy and literacy, and low levels of commercial education and experience. Many artists from remote communities still embrace a variety of hunter-gatherer lifestyle values and this means that they are not free to engage in their industry on an equal footing.
Desart takes the position that there now needs to be genuine action. Where allegations are rife and remain uncontested and undefended there is the potential for damage to the reputation of this very important industry.
Why has nothing been done about this in the past?
There are laws in Australia which prohibit unconscionable conduct by dealers, which prohibit artists being forced to conduct commerce under duress, and which prohibit misrepresentation where fraudulent works are passed off as authentic art works. In the past couple of years the Australian Competition and Consumer Commission (‘ACCC’) and the Western Australian and Victorian Fraud Squads have conducted investigations into a range of allegations, mostly connected with fraudulent artworks. On 25 March this year the ACCC advised that these investigations had closed because there was ‘too much difficulty in trying to establish evidence necessary to prove any breaches.’ This does not mean that there have been no breaches and that evidence does not exist. The ACCC indicated its frustration by saying: ‘unfortunately we’ve closed the matter and won’t be taking it any further.’
It is quite well understood that evidence in this environment is fragile. Indigenous artists, like most Indigenous people, are often uncomfortable about contacting authorities. They are often not aware of their rights and have very limited resources for legal representation. There is often a lack of any paper trail which means that it is unlikely that an investigation will be able to sustain evidence over a period long enough to bring a matter to conclusion.
Fake art works are only a small part of the problem. More important is the treatment meted out to artists. Sometimes they are locked up in sweatshops to paint. Some motels in Alice Springs have become centres for varying degrees of entrapment. Often artists get caught up in a debt cycle involving ‘book up’. These are all symptoms of the rapacious exploitation operating on the fringes of an industry widely recognised as a national treasure. Unfortunately there are also well-established trade links that allow artworks produced in this environment to find their way into the mainstream art market.
At the same time we need to understand that there are many fine businesses and organisations that have played an important role in supporting and promoting Indigenous artists to the world. Indigenous community art centres and reputable commercial galleries have an important place and are pivotal in conducting professional arts and business practice.
Desart supports a position that the introduction of a raft of measures is necessary to regulate the industry and provide consumer and artist protection. The first step in this process is the development of an industry code of conduct.
In the past few weeks the National Association for the Visual Arts (‘NAVA’) has begun work in partnership with Desart, ANKAAA (The Association of Northern, Kimberley and Arnhem Aboriginal Artists) and The Australia Council for the Arts to develop an Indigenous Commercial Code of Conduct. The Code will provide a platform for industry practice across all sections of the industry.
It will be important to develop a Code that can attract widespread acceptance by the commercial sector and we hope that it will be a fundamental building block for further regulatory measures.
When people buy a house for several hundred thousand dollars their dealings have a fair level of protection because they are likely to deal through a licensed agent who adheres to an independently enforced industry code. Margins and commissions are well-regulated and buyers have some recourse if the house is not what it was represented to be. On the other hand, when people buy an Indigenous artwork – perhaps also for several hundred thousand dollars – they have no protection. Yet the best advice going around at the current time is ‘Buyer Beware’. That inspires little confidence.
It is good advice to ask lots of questions. For example,
However, these questions often involve value judgments and their answers are increasingly unreliable.
We need to have licensed dealers in Indigenous art.
It is well understood that where there is a significant public interest at stake then there ought to be regulation. We have a regulated car industry, regulated antique dealers, a regulated real estate industry and a vast array of other examples. There is now a case to be made that because of the huge bulk of Indigenous art for sale, because of the high value of some sales and because of the poor circumstances in which many Indigenous artists find themselves, there is a significant public interest to be protected in this industry.
Artists also need to have greater confidence in their dealings with the market. This means education. But it also means that there needs to be in place a system of well-defined and sustainable practice that will protect the interests of artists where current trade practices legislation is failing them. There is also a significant national interest. Increasingly, Indigenous art is used to promote the nation. Exports of Indigenous art are substantial and research indicates that as many as 84 per cent of international visitors to this country are interested in an Indigenous cultural experience. In 2004, more than one million national and international tourists engaged in a substantive way with Indigenous art and culture.
Australia’s cultural reputation is at risk.
John Oster is the Executive Officer of Desart.
 Geoffrey Bardon (1940-2003), an artist and an art teacher, went to the central Australian community of Papunya in 1971. It was there that he is credited with encouraging Aboriginal people in the community to transfer the depiction of their stories to canvas. He ensured the artists owned the ‘Western Desert Art Movement’ entirely. His work, though short in duration within the community, was instrumental in initiating the Aboriginal fine art industry.
 Geoffrey Bardon and James Bardon, Papunya: A Place Made After the Story (2005).
 Desart is the Association of Central Australian Aboriginal Art and Craft Centres, representing some 2,500 Indigenous artists working in 35 Aboriginal-owned community art centres across regions of South Australia, Western Australia and the Northern Territory, <http://www.desart.com.au> .
 Sam Di Scerni cited in ‘ACCC Closes Indigenous Art Probe’, ABC Online, <http://www.abc.net.au/news/newsitems/200603/s1600655.htm> at 3 April 2006.
 ‘“Book up” or “book down” is informal credit offered by stores or other traders. It allows people to get goods or services and pay the store or trader later. Book up is also known by a number of other
names, including “on the tick”, “on the slate” or “tiki”.’ Australian Securities and Investments Commission, Dealing with Book Up: A Guide (2005) 132.
 Australian Tourism Commission, ‘Market Research Intelligence on Aboriginal Tourism’ (2003) 19 at <www.tourism.australia.com/content/Research/Aboriginal research_0303.pdf> at 11 April 2006.
 Australian Tourism Commission, ‘Indigenous Based Tourism in Australia’ (2005) at <www.tourism.australia.com/content/Niche/niche_snapshot_indigenous.pdf> at 11 April 2006.