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This is a Bill, not an Act. For current law, see the Acts databases.

RESALE ROYALTY RIGHT FOR VISUAL ARTISTS BILL 2008

2008
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Resale Royalty Right for Visual Artists
Bill 2008
No. , 2008
(Environment, Heritage and the Arts)
A Bill for an Act to create a right to resale royalty
in relation to artworks, and for related purposes
i Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
Contents
Part 1--Preliminary
1
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 2
3
Definitions .......................................................................................... 2
4
Act binds the Crown ........................................................................... 4
5
External Territories ............................................................................. 4
Part 2--Resale royalty right
5
Division 1--When does resale royalty right arise?
5
6
Resale royalty right............................................................................. 5
7
What is an artwork?............................................................................ 5
8
What is commercial resale of an artwork? ......................................... 5
9
No resale royalty right on certain works............................................. 6
10
No resale royalty right unless consideration above threshold ............ 6
11
Resale royalty right on artworks in existence when Act
commences ......................................................................................... 6
Division 2--Who holds resale royalty right?
7
12
Who holds resale royalty right? .......................................................... 7
13
Meaning of identified.......................................................................... 8
14
Residency test ..................................................................................... 9
15
Succession test .................................................................................... 9
16
Share of resale royalty right where there is more than one
artist .................................................................................................. 10
17
Presumptions in relation to artist ...................................................... 11
Division 3--Rate of resale royalty
12
18
Rate of resale royalty ........................................................................ 12
Division 4--Liability to pay resale royalty
13
19
Resale royalty a debt due to holders of resale royalty right ............. 13
20
Liability to pay resale royalty ........................................................... 13
21
When does the liability to pay resale royalty arise? ......................... 13
Division 5--Collecting resale royalty
14
22
Collecting society to publish notice of the commercial resale
of an artwork on its website.............................................................. 14
23
Collection of resale royalty by the collecting society....................... 14
24
Presumptions to be made in enforcement proceedings
brought by the collecting society ...................................................... 15
25
Resale royalty right under this Act only enforceable in
Australian jurisdiction ...................................................................... 15
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 ii
26
If resale royalty is paid to the collecting society .............................. 15
27
Notice of resale royalty right ............................................................ 16
28
Notice of commercial resale ............................................................. 16
29
Requesting information about the commercial resale of an
artwork .............................................................................................. 17
30
Recovery of amount wrongly paid by the collecting society ........... 18
31
Return of unclaimed resale royalty................................................... 19
Division 6--Other characteristics of resale royalty right
20
32
Duration of resale royalty right......................................................... 20
33
Resale royalty right absolutely inalienable....................................... 20
34
Waiver etc. ........................................................................................ 20
Part 3--The collecting society
21
35
Appointment of the collecting society .............................................. 21
36
Revocation of appointment............................................................... 22
37
Annual report and accounts .............................................................. 22
38
Amendment of rules ......................................................................... 23
Part 4--Civil penalties
25
Division 1--Obtaining an order for a civil penalty
25
39
Court may order person to pay pecuniary penalty for
contravening civil penalty provision ................................................ 25
40
What is a civil penalty provision?..................................................... 26
41
Contravening a civil penalty provision is not an offence ................. 26
42
Persons involved in contravening civil penalty provision ................ 26
43
Recovery of a pecuniary penalty ...................................................... 27
Division 2--Civil penalty proceedings and criminal proceedings
28
44
Civil proceedings after criminal proceedings ................................... 28
45
Criminal proceedings during civil proceedings ................................ 28
46
Criminal proceedings after civil proceedings ................................... 28
47
Evidence given in proceedings for penalty not admissible in
criminal proceedings ......................................................................... 28
Part 5--Miscellaneous
30
48
Offence--unauthorised dealing with information ............................ 30
49
Review by Administrative Appeals Tribunal ................................... 31
50
Jurisdiction of Federal Court ............................................................ 31
51
Jurisdiction of the Federal Magistrates Court................................... 31
52
Additional effect of Act .................................................................... 32
53
Regulations ....................................................................................... 32
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 1
A Bill for an Act to create a right to resale ro yalty
1
in relation to artworks, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act may be cited as the Resale Royalty Right for Visual
7
Artists Act 2008.
8
Part 1 Preliminary
Section 2
2 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
2 Commence ment
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Sections 3 to 5 1 Ju ly 2009.
1 Ju ly 2009
3. Part 2
1 Ju ly 2009.
1 Ju ly 2009
4. Part 3
The day on which this Act receives the
Royal Assent.
5. Parts 4 and 5
1 Ju ly 2009.
1 Ju ly 2009
Note:
This table relates only to the provisions of this Act as originally
7
passed by both Houses of the Parliament and assented to. It will not be
8
expanded to deal with provisions inserted in this Act after assent.
9
(2) Column 3 of the table contains additional information that is not
10
part of this Act. Information in this column may be added to or
11
edited in any published version of this Act.
12
3 Definitions
13
In this Act:
14
art market professional has the meaning given by subsection 8(3).
15
artwork has the meaning given by section 7.
16
buyer, in relation to the commercial resale of an artwork, means a
17
person to whom, either alone or together with one or more other
18
persons, ownership of the artwork is transferred under the
19
commercial resale.
20
Preliminary Part 1
Section 3
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 3
civil penalty provision has the meaning given by section 40.
1
collecting society means the society for the time being appointed as
2
the collecting society under section 35.
3
commercial resale has the meaning given by section 8.
4
community body means a body (whether incorporated or
5
unincorporated) established by a community for the purposes of
6
supporting or promoting the welfare or cultural values of the
7
community.
8
evidential burden, in relation to a matter, means the burden of
9
adducing or pointing to evidence that suggests a reasonable
10
possibility that the matter exists or does not exist.
11
Federal Court means the Federal Court of Australia.
12
GST has the same meaning as in the A New Tax System (Goods
13
and Services Tax) Act 1999.
14
identified, in relation to an artist of an artwork, has the meaning
15
given by section 13.
16
permanent resident means a person:
17
(a) who is not an Australian citizen; and
18
(b) whose normal place of residence is situated in Australia; and
19
(c) whose presence in Australia is not subject to any limitation as
20
to time imposed by law; and
21
(d) who is not an unlawful non-citizen.
22
personal information has the same meaning as in the Privacy Act
23
1988.
24
resale royalty right has the meaning given by section 6.
25
residency test has the meaning given by section 14.
26
rules, in relation to the collecting society, means the provisions of
27
the memorandum and articles of association of the society.
28
seller, in relation to the commercial resale of an artwork, means a
29
person who, either alone or together with one or more other
30
Part 1 Preliminary
Section 4
4 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
persons, transfers ownership of the artwork under the commercial
1
resale.
2
succession test has the meaning given by section 15.
3
time of a commercial resale is the earlier of:
4
(a) the start of the day on which ownership of the artwork is
5
transferred under the commercial resale; and
6
(b) the start of the day on which consideration for the
7
commercial resale is fully paid.
8
unlawful non-citizen has the same meaning as in the Migration
9
Act 1958.
10
works of graphic or plastic art has a meaning affected by
11
subsection 7(2).
12
4 Act binds the Crown
13
(1) This Act binds the Crown in each of its capacities.
14
(2) This Act does not make the Crown liable to a pecuniary penalty or
15
to be prosecuted for an offence.
16
(3) The protection in subsection (2) does not apply to an authority of
17
the Crown.
18
5 External Territories
19
This Act extends to all the external Territories.
20
21
Resale royalty right Part 2
When does resale royalty right arise? Division 1
Section 6
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 5
1
Part 2--Resale royalty right
2
Division 1--When does resale royalty right arise?
3
6 Resale royalty right
4
Resale royalty right is the right to receive resale royalty on the
5
commercial resale of an artwork.
6
7 What is an artwork?
7
(1) An artwork is an original work of graphic or plastic art that is
8
either:
9
(a) created by the artist or artists; or
10
(b) produced under the authority of the artist or artists.
11
(2) Works of graphic or plastic art include pictures, collages,
12
paintings, drawings, engravings, prints, lithographs, sculptures,
13
tapestries, ceramics, glassware and photographs.
14
8 What is commercial resale of an artwork?
15
(1) There is a commercial resale of an artwork if:
16
(a) ownership of the artwork is transferred from one person to
17
another for monetary consideration; and
18
(b) the transfer is not the first transfer of ownership of the
19
artwork; and
20
(c) the transfer is not otherwise one of an excluded class.
21
(2) The transfer of ownership of an artwork from one individual to
22
another in circumstances that do not involve an art market
23
professional acting in that capacity, is an excluded class of transfer.
24
(3) Art market professional means:
25
(a) an auctioneer; or
26
(b) the owner or operator of an art gallery; or
27
(c) the owner or operator of a museum; or
28
Part 2 Resale royalty right
Division 1 When does resale royalty right arise?
Section 9
6 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
(d) an art dealer; or
1
(e) a person otherwise involved in the business of dealing in
2
artworks.
3
9 No resale royalty right on certain works
4
There is no resale royalty right on the commercial resale of:
5
(a) a building, or a drawing, plan or model for a building; or
6
(b) a circuit layout within the meaning of the Circuit Layouts Act
7
1989; or
8
(c) a manuscript (in whatever form) of a literary, dramatic or
9
musical work.
10
10 No resale royalty right unless consideration above threshold
11
Threshold
12
(1) There is no resale royalty right on the commercial resale of an
13
artwork for a sale price of less than:
14
(a) $1,000 or, if the sale price is paid in a foreign currency, the
15
amount worked out using the exchange rate applicable at the
16
time of the commercial resale that is equivalent to $1,000; or
17
(b) if a higher amount is prescribed by the regulations--that
18
higher amount.
19
Definition of sale price
20
(2) The sale price on the commercial resale of an artwork means the
21
amount paid for the artwork by the buyer on the commercial resale
22
including GST, but does not include any buyer's premium or other
23
tax payable on the sale.
24
11 Resale royalty right on artworks in existence when Act
25
comme nces
26
If an artwork exists on the commencement of this Part, there is no
27
resale royalty right on the first transfer of ownership of the artwork
28
on or after commencement, even if the transfer of ownership is
29
under a commercial resale.
30
31
Resale royalty right Part 2
Who holds resale royalty right? Division 2
Section 12
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 7
1
Division 2--Who holds resale royalty right?
2
12 Who holds resale royalty right?
3
Artwork created by a single living artist
4
(1) If an artwork was created by a single artist who is identified and
5
living at the time of a commercial resale of the artwork, resale
6
royalty right on the commercial resale is held by the artist,
7
provided he or she satisfies the residency test at the time of the
8
commercial resale.
9
Artwork created by a single artist who is no longer living
10
(2) If an artwork was created by a single artist who is identified but no
11
longer living at the time of a commercial resale of the artwork and
12
who satisfied the residency test immediately before his or her
13
death, resale royalty right on the commercial resale is held by:
14
(a) if there is only one successor in title to the right--that entity,
15
provided the entity satisfies the residency test at the time of
16
the commercial resale and the succession test; and
17
(b) if there is more than one successor in title to the right--each
18
of those entities that satisfies the residency test at the time of
19
the commercial resale and the succession test.
20
Artwork created by more than one artist
21
(3) If an artwork was created by more than one artist, resale royalty
22
right on a commercial resale of the artwork is held by:
23
(a) for each artist who is living at the time of the commercial
24
resale--the artist, provided he or she is identified and
25
satisfies the residency test at that time; and
26
(b) for each artist who is identified but no longer living at the
27
time of the commercial resale, who satisfied the residency
28
test immediately before his or her death, and through whom
29
there is only one successor in title to the right--that entity,
30
provided the entity satisfies the residency test at the time of
31
the commercial resale and the succession test; and
32
Part 2 Resale royalty right
Division 2 Who holds resale royalty right?
Section 13
8 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
(c) for each artist who is identified but no longer living at the
1
time of the commercial resale, who satisfied the residency
2
test immediately before his or her death and through whom
3
there is more than one successor in title to the right--each of
4
those entities that satisfies the residency test at the time of the
5
commercial resale and the succession test.
6
Later successors in title
7
(4) If an entity holds an interest in the resale royalty right on the
8
commercial resale of an artwork by operation of subsection (2) or
9
(3), or by an earlier operation of this subsection, but the entity is
10
dead or has been wound up at the time of the next commercial
11
resale of the artwork, resale royalty right is held on the next
12
commercial resale of the artwork by:
13
(a) if there is only one successor in title to the right--that entity,
14
provided it satisfies the residency test at the time of the next
15
commercial resale and the succession test; and
16
(b) if there is more than one successor in title to the right--each
17
of those entities that satisfies the residency test at the time of
18
the next commercial resale and the succession test.
19
13 Meaning of identified
20
(1) A person is identified as an artist of an artwork at the time of a
21
commercial resale of the artwork if, at that time, the person's
22
identity as an artist of the artwork is known to:
23
(a) a seller of the artwork under the commercial resale; or
24
(b) a buyer of the artwork under the commercial resale; or
25
(c) any art market professional acting as the agent of a buyer or a
26
seller of the artwork under the commercial resale; or
27
(d) the collecting society; or
28
(e) in the case of an artwork for which there is more than one
29
artist--another artist of the artwork.
30
(2) A person is identified as an artist of an artwork at any other time if,
31
at that time, the person's identity as an artist of the artwork is
32
known to:
33
(a) the collecting society; or
34
Resale royalty right Part 2
Who holds resale royalty right? Division 2
Section 14
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 9
(b) in the case of an artwork for which there is more than one
1
artist--another artist of the artwork.
2
14 Residency test
3
(1) An individual satisfies the residency test at a particular time if, at
4
that time, the individual is:
5
(a) an Australian citizen; or
6
(b) a permanent resident of Australia; or
7
(c) a national or citizen of a country prescribed as a reciprocating
8
country.
9
(2) A corporation satisfies the residency test at a particular time if:
10
(a) it is incorporated under the Corporations Act 2001, or under
11
the law of a country prescribed as a reciprocating country; or
12
(b) it carries on an enterprise, at that time, in Australia or a
13
country prescribed as a reciprocating country.
14
(3) An unincorporated body satisfies the residency test at a particular
15
time if it carries on an enterprise, at that time, in Australia or a
16
country prescribed as a reciprocating country.
17
15 Succession test
18
(1) An entity satisfies the succession test in relation to resale royalty
19
right on the commercial resale of an artistic work, if the entity
20
satisfies:
21
(a) criteria 1 and 2 (in subsections (2) and (3)); or
22
(b) criteria 3 and 4 (in subsections (4) and (5)).
23
Criterion 1
24
(2) The entity received its interest in the right by testamentary
25
disposition, or in accordance with the rules of intestate succession,
26
on the death of an individual.
27
Criterion 2
28
(3) The entity is one of the following:
29
(a) an individual with a beneficial interest in the right;
30
Part 2 Resale royalty right
Division 2 Who holds resale royalty right?
Section 16
10 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
(b) a charity or charitable institution with a beneficial interest in
1
the right;
2
(c) a community body with a beneficial interest in the right;
3
(d) a person who holds an interest in the right in trust for:
4
(i) an individual; or
5
(ii) a charity or charitable institution; or
6
(iii) a community body.
7
Criterion 3
8
(4) The entity received its interest in the right on the winding up of a
9
charity, charitable institution or a community body.
10
Criterion 4
11
(5) The entity is a charity, charitable institution or a community body
12
formed for substantially the same purposes as the body that was
13
wound up.
14
16 Share of resale royalty right whe re there is more than one artist
15
Where there is more than one artist and they are all living
16
(1) If all of the holders of the resale royalty right on the commercial
17
resale of an artwork are artists of the artwork, each artist is entitled
18
to an equal share of the resale royalty on that commercial resale,
19
unless:
20
(a) the artists have agreed to apportion shares in the resale
21
royalty differently; and
22
(b) that agreement does not give a share of the resale royalty to
23
any other person (other than through testamentary disposition
24
or in accordance with the rules of intestate succession on the
25
death of an artist).
26
Where more than one artist, but one is no longer living
27
(2) If:
28
(a) there is more than one artist of an artwork; and
29
(b) one of the artists is identified but no longer living at the time
30
of a commercial resale of the artwork; and
31
Resale royalty right Part 2
Who holds resale royalty right? Division 2
Section 17
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 11
(c) the artist satisfied the residency test immediately before his
1
or her death;
2
it is the share of the resale royalty on the commercial resale of the
3
artwork to which the artist would have been entitled had the artist
4
been alive, identified and satisfied the residency test at the time of
5
the commercial resale that passes to those holding resale royalty
6
right on the commercial resale of the artwork through that artist.
7
17 Presumptions in relation to artist
8
If a mark or name purporting to identify a person as an artist of an
9
artwork appears on the artwork, then the presence of the mark or
10
name is taken to be prima facie evidence for the purposes of this
11
Act that:
12
(a) in a case where there is no other such mark or name on the
13
artwork--the person is the artist of the artwork; and
14
(b) in a case where there is another such mark or name on the
15
artwork--the person is one of the artists of the artwork.
16
17
Part 2 Resale royalty right
Division 3 Rate of resale royalty
Section 18
12 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
1
Division 3--Rate of resale royalty
2
18 Rate of resale royalty
3
Resale royalty is payable at the rate of 5% of the sale price on the
4
commercial resale of an artwork.
5
6
Resale royalty right Part 2
Liability to pay resale royalty Division 4
Section 19
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 13
1
Division 4--Liability to pay resale royalty
2
19 Resale royalty a debt due to holders of resale royalty right
3
Resale royalty on the commercial resale of an artwork is a debt due
4
to the holders of the resale royalty right on the commercial resale
5
by those who have a liability to pay the resale royalty.
6
20 Liability to pay resale royalty
7
The following persons are jointly and severally liable to pay resale
8
royalty on the commercial resale of an artwork:
9
(a) the seller or, if there is more than one seller, all of the sellers;
10
and
11
(b) each person acting in the capacity of an art market
12
professional and as agent for the seller; and
13
(c) if there is no such agent--each person acting in the capacity
14
of an art market professional and as agent for the buyer; and
15
(d) if there are no such agents--the buyer or, if there is more
16
than one buyer, all of the buyers.
17
21 When does the liability to pay resale royalty arise?
18
Liability to pay resale royalty on the commercial resale of an
19
artwork arises at the time of the commercial resale of the artwork.
20
21
Part 2 Resale royalty right
Division 5 Co llecting resale royalty
Section 22
14 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
1
Division 5--Collecting resale royalty
2
22 Collecting society to publish notice of the commercial resale of an
3
artwork on its we bsite
4
If:
5
(a) the collecting society becomes aware of the commercial
6
resale of an artwork; and
7
(b) the collecting society believes, on reasonable grounds, that an
8
entity may hold resale royalty right, or an interest in the
9
resale royalty right, on the commercial resale under this Act;
10
the collecting society must, as soon as it is reasonably practicable
11
after becoming aware of the commercial resale of the artwork,
12
publish notice of the commercial resale on its website.
13
23 Collection of resale royalty by the collecting society
14
(1) This section applies unless:
15
(a) the holder of the resale royalty right on the commercial resale
16
of an artwork; or
17
(b) if there is more than one holder of the resale royalty right on
18
the commercial resale of an artwork--all the holders of the
19
resale royalty right on the commercial resale of the artwork;
20
notify the collecting society in writing, within 21 days after notice
21
of the commercial resale is published on the collecting society's
22
website, that the collecting society is not to collect the resale
23
royalty, or enforce the resale royalty right, on the commercial
24
resale on behalf of the holder or holders of the right.
25
(2) The collecting society must use its best endeavours to collect the
26
resale royalty payable under this Act, and, if necessary, enforce
27
any resale royalty right held under this Act, on the commercial
28
resale of the artwork on behalf of the holder or holders of the resale
29
royalty right.
30
(3) The collecting society is not subject to the direction of any holder
31
or holders of the resale royalty right in collecting the resale royalty
32
or enforcing that right.
33
Resale royalty right Part 2
Collecting resale royalty Division 5
Section 24
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 15
24 Presumptions to be made in enforcement proceedings brought by
1
the collecting society
2
In proceedings for the enforcement of the resale royalty right on
3
the commercial resale of an artwork by the collecting society:
4
(a) it is to be presumed conclusively that there is at least one
5
holder of the resale royalty right under this Act; and
6
(b) it is to be presumed that the collecting society is acting on
7
behalf of the holder or holders of the resale royalty right,
8
unless it is proved that a notice was given to the collecting
9
society in accordance with subsection 23(1) in relation to the
10
commercial resale.
11
25 Resale royalty right under this Act only enforceable in Australian
12
jurisdiction
13
Resale royalty right held under this Act is only enforceable in an
14
Australian federal court, or a court of a State or Territory, of
15
competent jurisdiction.
16
26 If resale royalty is paid to the collecting society
17
(1) If resale royalty on the commercial resale of an artwork is paid to
18
the collecting society, the collecting society must:
19
(a) pay to each entity that has given the collecting society notice
20
under subsection 27(1) and established a claim to a share of
21
the resale royalty on the commercial resale, that entity's
22
share of the resale royalty less the collecting society's
23
administration fee; and
24
(b) use its best endeavours to locate each holder of the resale
25
royalty right on the commercial resale of the artwork who has
26
not given the collecting society notice under subsection
27
27(1), and pay that holder the holder's share of the resale
28
royalty, less the collecting society's administration fee.
29
(2) The collecting society's administration fee must not be such as to
30
amount to a tax.
31
Part 2 Resale royalty right
Division 5 Co llecting resale royalty
Section 27
16 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
(3) The Minister may, by notice in writing given to the collecting
1
society, limit the administration fee to be imposed by the collecting
2
society.
3
(4) A notice given under subsection (3) is not a legislative instrument.
4
27 Notice of resale royalty right
5
(1) An entity that claims to hold a resale royalty right, or an interest in
6
a resale royalty right, under this Act may give the collecting
7
society written notice in the manner and form approved by the
8
collecting society setting out:
9
(a) the entity's name; and
10
(b) the entity's address; and
11
(c) the proportion of the resale royalty right to which the entity
12
claims that it is entitled; and
13
(d) details of the basis on which the entity makes that claim.
14
(2) The collecting society may, by written notice, request an entity that
15
has given the society notice under subsection (1) to provide further
16
information in support of the claim within a specified time of no
17
less than 60 days
.
18
28 Notice of comme rcial resale
19
(1) A person must give the collecting society notice complying with
20
subsection (2) of the commercial resale of an artwork if:
21
(a) the person is a seller under the commercial resale; and
22
(b) the person is:
23
(i) an Australian citizen; or
24
(ii) a permanent resident of Australia; or
25
(iii) a corporation incorporated under the Corporations Act
26
2001; or
27
(iv) a person (including a body corporate) who carries on an
28
enterprise in Australia; or
29
(v) a trustee of a trust of which one of the persons
30
mentioned in subparagraphs (i) to (iv) (inclusive) is a
31
beneficiary.
32
Resale royalty right Part 2
Collecting resale royalty Division 5
Section 29
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 17
Civil penalty:
1
(a) for an individual--200 penalty units;
2
(b) for a body corporate--1,000 penalty units.
3
(2) The notice must:
4
(a) be in writing; and
5
(b) be given to the collecting society within the period of 90 days
6
beginning at the time of the commercial resale; and
7
(c) include sufficient detail to allow the collecting society:
8
(i) to work out whether resale royalty is payable on the
9
commercial resale under this Act; and
10
(ii) to work out the amount of resale royalty payable under
11
this Act; and
12
(iii) to identify who is liable to pay the resale royalty.
13
(3) The seller may satisfy the requirement to give notice in accordance
14
with this section through an agent.
15
(4) If:
16
(a) there is more than one seller under the commercial resale of
17
an artwork; and
18
(b) one of the sellers gives the collecting society notice in
19
accordance with this section;
20
then all of the sellers are taken to have given the collecting society
21
notice in accordance with this section.
22
(5) A person who wishes to rely on subsection (3) or (4) bears an
23
evidential burden in relation to those matters.
24
29 Requesting information about the comme rcial resale of an
25
artwork
26
(1) If the collecting society believes on reasonable grounds that a
27
person is:
28
(a) a seller under a commercial resale of an artwork; or
29
(b) a buyer under a commercial resale of an artwork; or
30
(c) an agent of a seller or buyer under a commercial resale of an
31
artwork; or
32
Part 2 Resale royalty right
Division 5 Co llecting resale royalty
Section 30
18 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
(d) an art market professional otherwise involved in a
1
commercial resale of an artwork;
2
the collecting society may, in writing, request the person to give
3
the collecting society information in relation to the commercial
4
resale relevant to determining:
5
(e) the amount of any resale royalty payable on the commercial
6
resale under this Act; and
7
(f) who is liable to make the payment.
8
(2) If:
9
(a) a request is made to a person in accordance with
10
subsection (1); and
11
(b) the commercial resale in relation to which the request was
12
made occurred within 6 years before the request was made;
13
the person must comply with the request within 90 days after it is
14
given.
15
Civil penalty:
16
(a) for an individual--100 penalty units;
17
(b) for a body corporate--500 penalty units.
18
30 Recovery of amount wrongly paid by the collecting society
19
(1) If the collecting society pays resale royalty on the commercial
20
resale of an artwork to a person who does not hold a resale royalty
21
right on that commercial resale, or an interest in such a right, the
22
amount wrongly paid is a debt due by the person to whom it was
23
paid to the holders of the resale royalty right on the commercial
24
resale.
25
(2) If the collecting society pays a holder of resale royalty right on the
26
commercial resale of an artwork more than that holder's share of
27
the resale royalty on that commercial resale, an amount equal to the
28
difference between the payment and that holder's share of the
29
resale royalty is a debt due by the person to whom it was paid to
30
the other holders of the resale royalty right on the commercial
31
resale.
32
(3) A holder of the resale royalty right on the commercial resale, or an
33
interest in that right, of an artwork may request the collecting
34
Resale royalty right Part 2
Collecting resale royalty Division 5
Section 31
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 19
society to collect, or enforce repayment of, an amount under this
1
section on the holder's behalf.
2
(4) The collecting society may, if requested to do so by a holder of the
3
resale royalty right or an interest in the right, collect, or enforce
4
repayment of, an amount under this section on the holder's behalf,
5
and is subject to the direction of the holder of the right in doing so.
6
31 Return of unclaimed resale royalty
7
(1) If:
8
(a) resale royalty is paid to the collecting society on the
9
commercial resale of an artwork; and
10
(b) despite using its best endeavours, the collecting society is
11
unable to locate a holder of the resale royalty right on the
12
commercial resale or an interest in the right during a period
13
of 6 years beginning at the time of the commercial resale;
14
the collecting society must deal with that holder's share of the
15
resale royalty together with interest earned on that share less the
16
collecting society's administration fee, in accordance with
17
subsection (2).
18
(2) The collecting society must:
19
(a) distribute the amount in equal shares to those of the
20
remaining holders of the resale royalty right who can be
21
located; or
22
(b) if no such person can be located--distribute the amount in
23
equal shares to the persons who paid the resale royalty and
24
who can be located; or
25
(c) if no such person can be located--retain the amount for use
26
in the collection and distribution of resale royalties and the
27
enforcement of resale royalty rights.
28
29
Part 2 Resale royalty right
Division 6 Other characteristics of resale royalty right
Section 32
20 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
1
Division 6--Other characteristics of resale royalty right
2
32 Duration of resale royalty right
3
Resale royalty right continues to subsist in relation to an artwork
4
until the end of 70 years after:
5
(a) if there is only one artist of the artwork--the end of the
6
calendar year in which the artist dies; or
7
(b) if there is more than one artist of the artwork then, in relation
8
to the proportion of the resale royalty right held by or through
9
a particular artist--the end of the calendar year in which the
10
artist dies.
11
33 Resale royalty right absolutely inalienable
12
Except to the extent permitted under the succession test, resale
13
royalty right is absolutely inalienable, whether by way of, or in
14
consequence of, sale, assignment, charge, execution, bankruptcy,
15
insolvency or otherwise.
16
34 Waive r etc.
17
(1) A waiver of a resale royalty right is of no effect.
18
(2) An agreement to share or repay a resale royalty, other than an
19
agreement mentioned in paragraph 16(1)(b), is void.
20
21
The collecting society Part 3
Section 35
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 21
1
Part 3--The collecting society
2
3
35 Appointment of the collecting society
4
(1) A body may apply to the Minister to be appointed as the collecting
5
society.
6
(2) After receiving the application, the Minister must do one of the
7
following:
8
(a) appoint the body to be the collecting society, by notice in the
9
Gazette, for a period not exceeding 5 years specified in the
10
notice;
11
(b) refuse to appoint the body to be the collecting society.
12
(3) Only one body may be appointed to be the collecting society at a
13
time. A body must not be appointed to be the collecting society
14
while another body is appointed to be the collecting society.
15
(4) The Minister must not appoint a body to be the collecting society
16
unless:
17
(a) it is a company limited by guarantee and incorporated under
18
the Corporations Act 2001; and
19
(b) all resale royalty right holders are entitled to become its
20
members; and
21
(c) its rules prohibit the payment of dividends to its members;
22
and
23
(d) its rules contain provisions of the kind determined by
24
legislative instrument by the Minister, being provisions
25
necessary to ensure that the interests of holders of resale
26
royalty rights or their agents are protected adequately,
27
including, in particular, provisions about:
28
(i) the collection of amounts of resale royalty; and
29
(ii) the distribution of amounts collected by the society; and
30
(iii) the holding on trust by the society of amounts for
31
holders of resale royalty rights who are not its members;
32
and
33
Part 3 The collecting society
Section 36
22 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
(iv) access to records of the society by holders of resale
1
royalty rights and their agents.
2
36 Revocation of appointme nt
3
(1) This section applies if:
4
(a) the Minister is satisfied that the body appointed as the
5
collecting society:
6
(i) is not functioning adequately as the collecting society;
7
or
8
(ii) is not acting in accordance with its rules or in the best
9
interests of those of its members who are resale royalty
10
holders; or
11
(iii) has altered its rules so that they no longer comply with
12
paragraphs 35(4)(b) to (d); or
13
(iv) has refused or failed, without reasonable excuse, to
14
comply with section 37 or 38; or
15
(b) the body appointed as the collecting society requests the
16
Minister, in writing, to revoke the appointment and the
17
Minister is satisfied that it is in the best interests of those
18
holding resale royalty rights to do so.
19
(2) The Minister may, by notice in the Gazette, revoke the
20
appointment.
21
(3) The revocation takes effect on the day on which the notice is
22
published in the Gazette or, if a later day is specified in the notice,
23
on that later day.
24
37 Annual report and accounts
25
(1) The collecting society must, as soon as practicable after the end of
26
each financial year ending on or after 30 June 2010, prepare a
27
report of its operations during that financial year and send a copy
28
of the report to the Minister.
29
(2) The collecting society must not include in that report any
30
information that the society is satisfied:
31
(a) is commercial-in-confidence; or
32
(b) consists of personal information of an individual.
33
The collecting society Part 3
Section 38
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 23
(3) In satisfying itself whether information to be included in a report is
1
commercial-in-confidence, the society must consider each of the
2
following:
3
(a) whether release of the information would cause competitive
4
detriment to a person;
5
(b) whether the information is in the public domain;
6
(c) whether the information is required to be disclosed under
7
another law of the Commonwealth, a State or a Territory;
8
(d) whether the information is readily discoverable.
9
(4) The Minister must cause a copy of the report sent to the Minister
10
under subsection (1) to be laid before each House of the Parliament
11
within 15 sitting days of that House after the receipt of the report
12
by the Minister.
13
(5) The society must keep accounting records correctly recording and
14
explaining the transactions of the society (including any
15
transactions as trustee) and the financial position of the society.
16
(6) The accounting records must be kept in such a manner as will
17
enable true and fair accounts of the society to be prepared from
18
time to time and those accounts to be conveniently and properly
19
audited.
20
(7) The society must, as soon as practicable after the end of each
21
financial year, cause its accounts to be audited by an auditor who is
22
not a member of the society, and must send to the Minister a copy
23
of its accounts as so audited.
24
(8) The society must give its members reasonable access to copies of
25
all reports and audited accounts prepared under this section.
26
(9) This section does not affect any obligations of the society relating
27
to the preparation and lodging of annual returns or accounts under
28
the law under which it is incorporated.
29
38 Amendment of rules
30
The collecting society must, within 21 days after it alters its rules,
31
send a copy of the rules as so altered to the Minister, together with
32
Part 3 The collecting society
Section 38
24 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
a statement setting out the effect of the alteration and the reasons
1
why it was made.
2
3
Civil penalties Part 4
Obtaining an order for a civil penalty Division 1
Section 39
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 25
1
Part 4--Civil penalties
2
Division 1--Obtaining an order for a civil penalty
3
39 Court may order pe rson to pay pecuniary penalty for
4
contravening civil penalty provision
5
Application for order
6
(1) Within 6 years of a person (the wrongdoer) contravening a civil
7
penalty provision, the collecting society may apply on behalf of the
8
Commonwealth to the Federal Court or the Federal Magistrates
9
Court for an order that the wrongdoer pay the Commonwealth a
10
pecuniary penalty.
11
Court may order wrongdoer to pay pecuniary penalty
12
(2) If the Court is satisfied that the wrongdoer has contravened a civil
13
penalty provision, the Court may order the wrongdoer to pay to the
14
Commonwealth for each contravention the pecuniary penalty that
15
the Court determines is appropriate (but not more than the relevant
16
amount specified for the provision).
17
Determining amount of pecuniary penalty
18
(3) In determining the pecuniary penalty, the Court must have regard
19
to all relevant matters, including:
20
(a) the nature and extent of the contravention; and
21
(b) the nature and extent of any loss or damage suffered as a
22
result of the contravention; and
23
(c) the circumstances in which the contravention took place; and
24
(d) whether the person has previously been found by a court in
25
proceedings under this Act to have engaged in any similar
26
conduct.
27
Part 4 Civ il penalties
Division 1 Obtaining an order for a civ il penalty
Section 40
26 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
Conduct contravening more than one civil penalty provision
1
(4) If conduct constitutes a contravention of 2 or more civil penalty
2
provisions, proceedings may be instituted under this Act against a
3
person in relation to the contravention of any one or more of those
4
provisions. However, the person is not liable to more than one
5
pecuniary penalty under this section in respect of the same
6
conduct.
7
40 What is a civil penalty provision?
8
A subsection of this Act (or a section of this Act that is not divided
9
into subsections) is a civil penalty provision if:
10
(a) the words "civil penalty" and one or more amounts in penalty
11
units are set out at the foot of the subsection (or section); or
12
(b) another provision of this Act specifies that the subsection (or
13
section) is a civil penalty provision.
14
41 Contravening a civil penalty provision is not an offence
15
A contravention of a civil penalty provision is not an offence.
16
42 Persons involved in contravening civil penalty provision
17
(1) A person must not:
18
(a) aid, abet, counsel or procure a contravention of a civil
19
penalty provision; or
20
(b) induce (by threats, promises or otherwise) a contravention of
21
a civil penalty provision; or
22
(c) be in any way directly or indirectly knowingly concerned in,
23
or party to, a contravention of a civil penalty provision; or
24
(d) conspire to contravene a civil penalty provision.
25
(2) This Part applies to a person who contravenes subsection (1) in
26
relation to a civil penalty provision as if the person had
27
contravened the provision.
28
Civil penalties Part 4
Obtaining an order for a civil penalty Division 1
Section 43
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 27
43 Recovery of a pecuniary penalty
1
If the Federal Court or Federal Magistrates Court orders a person
2
to pay a pecuniary penalty:
3
(a) the penalty is payable to the Commonwealth; and
4
(b) the Commonwealth may enforce the order as if it were a
5
judgment of the Court.
6
7
Part 4 Civ il penalties
Division 2 Civil penalty proceedings and criminal proceedings
Section 44
28 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
1
Division 2--Civil penalty proceedings and criminal
2
proceedings
3
44 Civil proceedings after criminal proceedings
4
The Federal Court or Federal Magistrates Court must not make a
5
pecuniary penalty order against a person for a contravention of a
6
civil penalty provision if the person has been convicted of an
7
offence constituted by conduct that is substantially the same as the
8
conduct constituting the contravention.
9
45 Criminal proceedings during civil proceedings
10
(1) Proceedings for a pecuniary penalty order against a person for a
11
contravention of a civil penalty provision are stayed if:
12
(a) criminal proceedings are started or have already been started
13
against the person for an offence; and
14
(b) the offence is constituted by conduct that is substantially the
15
same as the conduct alleged to constitute the contravention.
16
(2) The proceedings for the order may be resumed if the person is not
17
convicted of the offence. Otherwise, the proceedings for the order
18
are dismissed.
19
46 Criminal proceedings after civil proceedings
20
Criminal proceedings may be started against a person for conduct
21
that is substantially the same as conduct constituting a
22
contravention of a civil penalty provision regardless of whether a
23
pecuniary penalty order has been made against the person.
24
47 Evidence given in proceedings for penalty not admissible in
25
criminal proceedings
26
Evidence of information given or evidence of production of
27
documents by an individual is not admissible in criminal
28
proceedings against the individual if:
29
Civil penalties Part 4
Civil penalty proceedings and criminal proceedings Division 2
Section 47
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 29
(a) the individual previously gave the evidence or produced the
1
documents in proceedings for a pecuniary penalty order
2
against the individual for a contravention of a civil penalty
3
provision (whether or not the order was made); and
4
(b) the conduct alleged to constitute the offence is substantially
5
the same as the conduct that was claimed to constitute the
6
contravention.
7
However, this does not apply to a criminal proceeding in respect of
8
the falsity of the evidence given by the individual in the
9
proceedings for the pecuniary penalty order.
10
11
Part 5 Miscellaneous
Section 48
30 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
1
Part 5--Miscellaneous
2
3
48 Offence--unauthorised dealing with information
4
(1) A person commits an offence if:
5
(a) the person makes a record of, discloses or otherwise uses
6
information; and
7
(b) the information was acquired by the person in the course of
8
performing functions or exercising powers under this Act.
9
Penalty: Imprisonment for 2 years.
10
Note:
Chapter 2 of the Criminal Code sets out the general principles of
11
criminal responsibility.
12
(2) This section does not apply if:
13
(a) the person records, discloses or otherwise uses the
14
information in the course of performing duties or exercising
15
powers under this Act; or
16
(b) the person acquires the information for any other lawful
17
purpose; or
18
(c) the person to whom the information relates consents to the
19
recording, disclosure or use of the information.
20
Note:
A defendant bears an evidential burden in relation to the matters in
21
subsection (2) (see subsection 13.3(3) of the Criminal Code).
22
(3) A person to whom this section applies must not be required to:
23
(a) disclose information that the person acquired in the course of
24
performing functions or exercising powers under this Act to a
25
court; or
26
(b) produce all or part of a document that contains information of
27
that kind to a court;
28
unless that disclosure or production is necessary for the purposes of
29
this Act. For this purpose, court includes any tribunal, authority or
30
person having power to require the production of documents or the
31
answering of questions.
32
Miscellaneous Part 5
Section 49
Resale Royalty Right for Visual Artists Bill 2008 No. , 2008 31
49 Review by Administrative Appeals Tribunal
1
Applications may be made to the Administrative Appeals Tribunal
2
for a review of a decision of the following kind:
3
(a) a decision of the Minister under subsection 35(2) to:
4
(i) appoint a body to be the collecting society; or
5
(ii) refuse to appoint a body to be the collecting society;
6
(b) a decision of the Minister to revoke the appointment of a
7
body as the collecting society in circumstances to which
8
section 36 applies because of paragraph 36(1)(a).
9
50 Jurisdiction of Federal Court
10
Jurisdiction is conferred on the Federal Court with respect to
11
actions:
12
(a) for the enforcement of resale royalty right on the commercial
13
resale of an artwork; and
14
(b) to determine who is the holder, or who are the holders, of a
15
resale royalty right on the commercial resale of an artwork;
16
and
17
(c) to enforce the payment of a share of the resale royalty right
18
on the commercial resale of an artwork from the collecting
19
society; and
20
(d) to recover amounts of resale royalty wrongly paid by the
21
collecting society; and
22
(e) for the enforcement of civil penalty provisions; and
23
(f) relating to any other matters arising under this Act.
24
51 Jurisdiction of the Fede ral Magistrates Court
25
Jurisdiction is conferred on the Federal Magistrates Court with
26
respect to actions:
27
(a) for the enforcement of resale royalty right on the commercial
28
resale of an artwork; and
29
(b) to determine who is the holder, or who are the holders, of a
30
resale royalty right on the commercial resale of an artwork;
31
and
32
Part 5 Miscellaneous
Section 52
32 Resale Royalty Right for Visual Artists Bill 2008 No. , 2008
(c) to enforce the payment of a share of the resale royalty right
1
on the commercial resale of an artwork from the collecting
2
society; and
3
(d) to recover amounts of resale royalty wrongly paid by the
4
collecting society; and
5
(e) for the enforcement of civil penalty provisions; and
6
(f) relating to any other matters arising under this Act.
7
52 Additional effect of Act
8
Without limiting its effect apart from this section, this Act also has
9
the effect it would have if its operation were expressly confined to:
10
(a) giving effect to the International Convention for the
11
Protection of Literary and Artistic Works concluded at Berne
12
on 9 September 1886 as revised from time to time; or
13
(b) matters external to Australia; or
14
(c) matters of international concern.
15
53 Regulations
16
The Governor-General may make regulations prescribing matters:
17
(a) prescribed or permitted to be prescribed by this Act; or
18
(b) necessary or convenient to be prescribed for carrying out or
19
giving effect to this Act.
20

 

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