The Art Law Review: Australia
Australia's visual arts market is relatively small, with annual auction sales over the past 10 years averaging around A$108 million.2 Indigenous art is an important sector, accounting for, on average, around 8 per cent of annual auction sales,3 and with numerous active art centres in regional and remote areas.
The covid-19 pandemic has had a negative impact on the Australian art market.
Indigenous art continues to be an area of policy focus, including action against inauthentic indigenous art and preservation of cultural heritage. There is also the prospect of legislative reform in relation to copyright and anti-money laundering.
The year in review
The Australian art market has been negatively impacted by the covid-19 pandemic, resulting in the postponement of numerous exhibitions and even the delay of major acquisitions: the National Gallery of Australia's A$6.8 million acquisition of Jordan Wolfson's animatronic sculpture Cube was hampered by international travel bans, with the artist and his team unable to travel to Canberra to install and test the work.4
Many practising artists were not eligible for pandemic-specific government assistance packages. The industry is likely to take some years to recover.
Year-to-date auction sales are tracking at 5 per cent below the national average as at November 2021.5
There have been a number of developments in relation to indigenous art over the past 12 to 24 months. The federal government's arts funding body, the Australia Council, released a new edition of 'Protocols for using First Nations Cultural and Intellectual Property in the Arts'. The Australian Museums and Galleries Association released 'First Peoples: A Roadmap for Enhancing Indigenous Engagement in Museums and Galleries'.
The Productivity Commission is currently considering the Aboriginal and Torres Strait Islander visual arts and crafts markets and regulatory and policy reforms to combat the widespread sale of inauthentic indigenous art.
There has been ongoing controversy over the licensing arrangements applicable to the Aboriginal flag, resulting in an inquiry by a Senate Select Committee of the Federal Parliament. The Select Committee on the Aboriginal Flag released its report in October 2020, recommending that the copyright in the artistic work constituting the Aboriginal flag not be compulsorily acquired by the federal government but that negotiations continue with the copyright owner and the licensees over the creation of a body with custodial oversight of the flag.6 In March 2021, the Australian government published its response, agreeing that the copyright would not be compulsorily acquired but remained non-committal as to further action.7
In addition, the laws and processes permitting the damage or destruction of Aboriginal cultural heritage by mining and construction companies are coming under increased scrutiny, following Rio Tinto's destruction in May 2020 of Aboriginal rock shelters in Juukan Gorge that dated back 46,000 years.8 In a signal of changing values, public outcry and shareholder action resulted in the resignation of senior executives. The Federal Parliament's Joint Standing Committee on Northern Australia held an inquiry into the incident, publishing its report in October 2021 and recommending that Federal Parliament pass legislation prioritising the protection of cultural heritage over other interests.9 The following month, the Western Australian government introduced the Aboriginal Cultural Heritage Bill 2021, to replace the existing cultural heritage protection regime.10
Women's representation in gallery collections has been receiving attention through initiatives such as the National Gallery of Australia's national, 'Know My Name' campaign in 2020 and 2021.11
The impact of climate change can be seen in museum and gallery deaccessioning programmes aiming to reduce the environmental costs of storage.
i Title in art
In Australia, there is no special process to be followed to transfer title in artwork. As with any other personal property, it is necessary to show that the parties involved in the transaction (vendor and purchaser in respect of a sale or donor and recipient in respect of a gift) clearly intended that title should pass and to what extent. Ideally this would be evidenced in writing to minimise the risk of a subsequent dispute. There is no difference if the acquisition is by auction or by private sale. Like many other jurisdictions, the copyright and physical ownership are considered separately – one does not necessarily pass with the other.
As a matter of law, the purchaser does not have a duty of inquiry into title. Rather, under the Australian Consumer Law, the vendor must guarantee clear title, unless the contract of sale or the surrounding circumstances indicate that limited title was intended to be transferred.12 For further discussion of the application of the Australian Consumer Law consumer guarantees to artwork, see Section V.
Provenance practices in Australia continue to evolve in response to the Subhash Kapoor controversy. In 2008, the National Gallery of Australia acquired the Dancing Shiva statue from Kapoor. The provenance of the statue was called into question in 2014. The National Gallery of Australia sued Kapoor in the New York Supreme Court, one of the few galleries to take legal action in these circumstances. The Court issued a default judgment against Kapoor, ordering compensation of US$8.59 million.13 The National Gallery of Australia confirmed that, as at June 2021, all works of art acquired from Kapoor's gallery had been deaccessioned and were being repatriated.14 It was reported in July 2021 that 13 of the works of art were being returned to India, with three remaining works still to be repatriated.15 Kapoor faces multiple criminal proceedings in India and the United States. Meanwhile, the Australian gallery sector has spent considerable time reviewing provenance policies and practices. Most recently, in June 2021, the National Gallery of Australia adopted its Provenance Framework and Decision Making Principles, incorporating ethical as well as legal considerations, and allowing for determinations that a work is unfit for the collection to be made on the balance of probabilities.16
ii Nazi-looted art and cultural property
There is no legislation in Australia specifically dealing with art misappropriated during the Nazi era, nor is there an independent body to review and assess claims of Nazi misappropriation. However, various museums and galleries have reviewed their collections for items with questionable provenance during the period from 1933 to 1945 and have made their research information publicly available online.17
The first Australian restitution of Nazi-appropriated art of which we are aware dates back to 2014, when the National Gallery of Victoria accepted that a portrait, originally attributed to Van Gogh, belonged to heirs of Richard Semmel, a Jewish industrialist who was forced by the Nazis to sell the portrait in Amsterdam in 1933.18
Ten years earlier, the same gallery had received a demand to return a Gerard ter Borch painting, Lady with a Fan, which had belonged to Max Emden, a Jewish retailer who abandoned his art collection when fleeing Hamburg and later Switzerland.19 However, this painting remains in the National Gallery of Victoria's collection.20
See Section V regarding the general regulation of cultural property.
iii Limitation periods
There are no limitation periods specific to claims for art misappropriated during the Nazi era.
More generally, the applicable limitation period for an art claim would depend on the cause of action and the jurisdiction in which it is brought. For example, contract claims and claims involving 'detinue'21 or 'conversion'22 in New South Wales must be commenced within six years of the date on which the cause of action accrues.23
The 2014 case of McBride v. Christie's Australia Pty Limited24 involved a purchaser suing the auction house Christie's (among others) over the sale in 2000 of the painting Faun and Parrot, attributed to the Australian painter Albert Tucker. When the purchaser sought to sell the painting some 10 years later, it was discovered that the painting was a forgery. At the time of the auction, no one was aware that the painting was not genuine. However, soon after the auction, a group of eminent art experts raised doubts about the painting's authenticity with the auction house and Christie's did not contact the purchaser to advise her of this new information. Among other defences, Christie's argued that as the purchaser had suffered loss immediately upon purchasing the painting in 2000, the plaintiff's action had not been brought within the six-year limitation period. However, it was held that the purchaser had suffered the loss, not upon purchasing the artwork in 2000, but upon discovering that the artwork was a forgery in 2010. Accordingly, the applicable limitation period had not expired.25
iv Alternative dispute resolution
Alternative dispute resolution remains popular in Australia and its private nature appeals to many involved in art disputes. Increasing delays in some Australian courts have meant arbitration, mediation and expert determination can offer swifter options.
As it is often mandated by the courts, mediation is the most common form if one excludes usual inter partes negotiations. More costly private arbitration is less common, particularly where the dispute does not have an international dimension.
The National Association for the Visual Arts' Code of Practice for the Professional Australian Visual Arts, Craft and Design Sector recommends mediation for contractual disputes between artists and commercial galleries.26 For disputes between artists and public institutions, it recommends mediation, followed by arbitration or litigation.27 The choice of the method of dispute resolution is one that requires careful consideration of the particular circumstances as none are universally applicable. The best resolutions can involve a tiered and flexible approach tailored to the participants.
The Arts Law Centre of Australia, the national community legal centre for the arts, provides an alternative dispute resolution service, offering mediation, binding expert determination and non-binding expert evaluation.28 This is the only alternative dispute resolution service in Australia dealing specifically with art matters, although its remit extends to other art forms such as music, film, theatre and literature.
Fakes, forgeries and authentication
In the event of an acquisition of fake, forged or inauthentic art, there are various causes of action available. In McBride v. Christie's Australia Pty Limited, mentioned in Section III.iii, the plaintiff's claims against Christie's were of misleading or deceptive conduct,29 unconscionable conduct30 and deceit. The proceedings also involved a claim of misleading or deceptive conduct against the vendor, Holland Fine Arts & Cars Pty Limited, and against the director of that company for being knowingly involved in that conduct (although the claim against the director was subsequently dismissed). The plaintiff further brought claims of misleading or deceptive conduct, breach of contract, negligence and breach of fiduciary duty against her agent, Vivienne Sharpe (although the claims of breach of contract, negligence and breach of fiduciary position in respect of the painting were ultimately dismissed).
Another example of a misleading or deceptive conduct claim in respect of fake artworks was heard by the County Court of Victoria in March 2021.31 In that case, the plaintiff claimed the defendant had induced him to invest several hundred thousand dollars in an investment scheme. As part of the scheme, and encouraged by the defendant, the plaintiff took security over a number of artworks, which turned out to be fake. Judge Brimer found for the plaintiff. The trial was undefended, and the defendant is reported to have denied the claims made against him.32
As mentioned further at Section V, the Australian Consumer Law provides certain guarantees in consumer transactions, such as the guarantee of clear title. The title guarantee applies to all such transactions, although other guarantees do not apply to sales by auction. The prohibitions in the Australian Consumer Law against misleading or deceptive conduct, unfair practices and unconscionable conduct generally apply.
Depending on the circumstances, criminal charges may also be brought against a dealer involved in the sale of forged paintings. A notorious case in Australia involved the creation and sale of paintings that were forgeries of the work of the late Australian painter Brett Whiteley. An art restorer and art dealer were convicted in 2016 of obtaining and attempting to obtain financial advantage by deception, although those convictions were later quashed.33
The recent publication of Whiteley's catalogue raisonné by Kathie Sutherland is anticipated to assist in future determinations of authenticity or otherwise of paintings attributed to Whiteley, although the publisher, Black Inc, has noted that Sutherland's research is ongoing.34
Authenticity is a particular issue for indigenous artworks. Various organisations, including the Copyright Agency, Indigenous Art Code and the Arts Law Centre of Australia, have been campaigning over several years to raise awareness of the sale of 'Aboriginal-style' artworks made by non-indigenous people. A bill was introduced into the Federal Parliament to ban the sale of such artworks, but the Senate Environment and Communications Legislation Committee, although supportive, recommended that the Senate not pass the bill.35 More successful was the Australian Competition and Consumer Commission's action against Birubi Art Pty Ltd (in liquidation) for making false or misleading representations under the Australian Consumer Law about the authenticity of the indigenous-style artworks it sold. The Federal Court found that Birubi had breached the Australian Consumer Law,36 and ordered Birubi to pay penalties of A$2.3 million.37
In August 2021, the Australian government's Productivity Commission launched an inquiry into the Aboriginal and Torres Strait Islander visual arts and crafts markets, considering in particular policy and regulatory reforms to address the prevalence of inauthentic arts and crafts. It released an issues paper in September 2021,38 and its draft report is scheduled for release in May 2022.
i Private sales and auctions
The Australian Consumer Law provides a set of guarantees relating to the supply of goods to a 'consumer'. A person is taken to have acquired goods 'as a consumer' if, relevantly, the amount paid for the goods was less than A$100,000 or the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption.39 By this definition, a business acquiring goods of a certain value or character would be a consumer for the purposes of the legislation.40 In terms of whether art 'is of a kind generally acquired for personal . . . use', there may be circumstances when a particular artwork, such as an oversized sculpture, does not have the requisite character. However, if artworks would otherwise be suitable for both domestic and other purposes (for example, for public display or corporate uses), they would be goods of a kind referred to in the definition of consumer and the guarantees should be taken to apply.
Where goods are sold at auction (including auctions conducted online), a limited set of consumer guarantees apply under the Australian Consumer Law, relating to title, clear title, undisturbed possession and freedom from securities or other encumbrances.41
However, if goods are sold other than at auction, the vendor also gives guarantees in respect of acceptable quality, fitness for a disclosed purpose, accuracy of description, availability of repairs and spare parts, and compliance with any manufacturer warranties.42 These are implied by statute even if not stated expressly in the terms or conditions of sale.
The Australian Consumer Law also contains general prohibitions against misleading or deceptive conduct, unconscionable conduct and unfair practices. These would apply to all sales, whether private or by auction.43
Auctions are heavily regulated in some Australian states, such as Queensland,44 but not in others, such as New South Wales and Victoria. Other than in Queensland, auction houses are not required by law to operate a trust account to keep sale proceeds separate from other funds. Several major art auction houses in Australia have called for mandatory trust accounts, after the auction house Mossgreen collapsed in December 2017. The administrators, BDO, reported to the company's creditors that Mossgreen had mixed clients' sale proceeds with its own funds and had used those proceeds to cover its own operating expenses.45 Although there has been no legislative change, the industry body, the Auctioneers and Valuers Association of Australia, has included a trust account requirement in its Code of Ethics.46
The usual considerations otherwise apply to the proper drafting of private sale agreements, including provisions relating to provenance, authenticity and condition, as well as appropriate transit and insurance arrangements.
ii Art loans
The Protection of Cultural Objects on Loan Act 2013 (Cth) deals with objects that have been imported into Australia for temporary public exhibition by approved institutions, which have to satisfy the government that they have appropriate provenance and due diligence policies and procedures in place before being approved.
With some minor exceptions, the legislation protects objects temporarily on loan from overseas from seizure as a result of legal proceedings, whether in Australia or overseas, or other actions taken under Australian laws. The protection generally ceases 24 months after import or when the object is exported from Australia.
There have been no recent cases or developments in Australia involving art loans.
iii Cross-border transactions
The Protection of Movable Cultural Heritage Act 1986 (Cth) regulates the export from, and import into, Australia of cultural property, including objects of ethnographic art, objects of decorative art and objects of fine art.
The National Cultural Heritage Control List47 sets out categories of protected objects in relation to export: Class A objects must not be exported from Australia (unless a certificate has been obtained from the relevant Minister in limited circumstances), while Class B objects may only be exported pursuant to an export permit. The latter category includes fine or decorative art that is at least 30 years old, has a value above a certain monetary threshold (variable depending on the nature of the work), is being exported by a person other than the creator and is an 'Australia-related object'.48
The Prohibited Exports Register lists cultural property in respect of which an export permit has been refused. The most recent entries in this register are from 2020 – two paintings by Charlie Numbulmore, Wanjina on Coolamon and Two Wanjina on Slate, each dating from around 1970.49
The Protection of Movable Cultural Heritage Act 1986 (Cth) also prohibits imports of protected objects of a foreign country if those protected objects were not permitted to be exported from the relevant country. The legislation contains an exception if the relevant object is being loaned for up to two years to certain government bodies or collecting institutions.
There are likely to be tax consequences for the ownership, and later sale, of art overseas.50 If a taxpayer acquired an overseas artwork before that taxpayer became an Australian resident for tax purposes, they will be taken to have purchased the art at the same time as they became an Australian resident. If a taxpayer is no longer an Australian resident for tax purposes, they would be deemed to have disposed of the art when ceasing to be an Australian resident. Capital gains tax may be payable when the art is sold or otherwise disposed of. Capital gains tax applies to assets, no matter where in the world they are situated, that belong to Australian residents.
iv Art finance
In terms of jurisdiction-specific financing arrangements, the regime established by the Personal Property Securities Act 2009 (Cth) can be used to protect artists' interests, particularly in the context of consignment. When an artist consigns artworks to a commercial gallery and registers the artist's interest in those artworks on the Personal Property Securities Register, that interest is protected in the event of the gallery's insolvency. This registration gives the artist priority over other creditors. In particular, a commercial consignment arrangement is a 'purchase money security interest', giving the consignor super-priority against earlier registered security interests. Registration can also be used to protect assets that are leased or hired out for at least two years.
This regime also enables personal property assets to be used as security for a loan, opening up additional financing options to artists and investors.
In terms of anti-money laundering laws, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) does not currently regulate art dealers and auction houses. However, a statutory review of the legislation in 2016 recommended that options be developed for regulating high-value dealers, among other service providers.51 The Department of Home Affairs conducted consultation on possible regulatory models over the period 2016–2017,52 but this was not followed by any legislative reform at the time. In June 2021, the Senate referred to its Legal and Constitutional Affairs Reference Committee the question of the adequacy of Australia's anti-money laundering laws, including whether the regime should be extended to certain non-financial businesses and professions.53 The Committee is due to report in early 2022.
i Moral rights
Under the Copyright Act 1968 (Cth), an individual creator has the following moral rights: the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship,54 which is the right not to have the work subjected to derogatory treatment.
In the context of artistic works, derogatory treatment means the material distortion, destruction, mutilation or material alteration to the work that is prejudicial to the artist's honour or reputation, an exhibition in public of the work prejudicial to the artist's honour or reputation because of the manner or place in which the exhibition occurs, and anything else that is prejudicial to the artist's honour or reputation.55 However, the right of integrity of authorship is not infringed by the destruction of a movable artistic work if the person who destroyed the work gave the creator a reasonable opportunity to remove it.56
Each of the moral rights in respect of an artistic work continues in force until copyright in the work expires.57
Unlike moral rights legislation in other jurisdictions, the Copyright Act 1968 (Cth) does not provide for creators being able to waive their moral rights. However, creators may consent in writing to an act or omission that would otherwise constitute an infringement of their moral rights. Outside the context of film, a consent must be specific as to the works it relates to and as to the acts or omissions being consented to.58 This requires careful consideration and tailoring to the particular artwork and circumstances to be effective.
There are several cases in Australia relating to the infringement of the right of attribution and the right not to be falsely attributed in respect of photographs used in various publications.59
The right of integrity of authorship has chiefly been the basis of complaints by architects when buildings they have designed are being renovated, with the most recent example being the proposed redevelopment of the Australian War Memorial.60
However, the right of integrity of authorship was referred to in defamation proceedings over an article published in The Sunday Telegraph newspaper.61 The article alleged that the plaintiff had purchased a five-panel artwork by the Australian artist Del Kathryn Barton on the condition that the five panels not be sold separately. The plaintiff subsequently sold one of the panels, which was referred to as being an infringement of the right not to have the work subjected to derogatory treatment. That there had been an infringement of the artist's moral rights was one of the defamatory imputations alleged by the plaintiff. However, the court's decision dealt with procedural points rather than considering moral rights and we are not aware that the artist brought any separate action in relation to the matter.
ii Resale rights
A resale royalty scheme was introduced in 2010 through the Resale Royalty Right for Visual Artists Act 2009 (Cth). The scheme applies to commercial resales of artworks from 9 June 2010, where the sale price is more than A$1,000.62 The transfer must be the second transfer of ownership since 9 June 2010 for the resale royalty to be payable, even if the work already existed as at that date.63 Private transfers (that is, transfers from one individual to another that do not involve art market professionals) are excluded from the scheme.64
The artist must satisfy the residency test of being an Australian citizen, an Australian permanent resident or a national or citizen of a country prescribed as a reciprocating country.65 If the artist has died by the time of the commercial resale, the residency test applies as at the date of the artist's death, and the successor in title has to satisfy both the residency test and a succession test.66
The resale royalty rate is 5 per cent of the sale price on the commercial resale of the artwork.67 The liability for paying the resale royalty is shared on a joint and several basis between the sellers, art market professionals acting as agent for either sellers or buyers, and, if there is no agent for the buyer, the buyer as well.68
The resale royalty scheme is administered by the Copyright Agency.
In December 2019, the then Federal Department of Communication and the Arts released its review of the first three years of the scheme.69 It was noted that the resale royalty scheme was viewed positively by artists and artist advocacy organisations and negatively by art investors and art market professionals. The scheme was regarded by many as having had a negative impact on the Australian art market, along with the global financial crisis and the changing of the art ownership rules relating to self-managed superannuation funds (see Section VII).70 Nevertheless, the review's conclusion was that the resale royalty scheme remained appropriate.71 The review did not contain any recommendations to change the operation of the scheme.
The Resale Royalty Right for Visual Artists Act 2009 (Cth) has now been in effect for over 10 years. As at 11 June 2020, the resale royalty scheme had generated approximately A$8.5 million in royalties for 1,975 artists and their estates.72
The Copyright Agency has been investigating the use of blockchain to assist in the management of the resale royalty scheme. Although it regards blockchain as promising, it has concluded that more work is required to ensure accurate data regarding physical artworks is entered onto the blockchain.73
iii Economic rights
In addition to the usual exploitation of artist's copyright in their works, the Copyright Act 1968 (Cth) provides statutory licensing schemes for copying by educational institutions74 and by government.75 Both statutory licensing schemes are administered by the Copyright Agency.
In August 2020, the federal government proposed reforms to Australian copyright legislation, including the streamlining of the government statutory licensing scheme and the introduction of a limited liability scheme for use of orphan works.76 Draft legislation has not yet been released.
Trusts, foundations and estates
As a matter of law, philanthropic trusts and foundations may only fund charitable projects. Accordingly, organisations seeking funding from trusts and foundations need to be endorsed by the Australian Taxation Office as a deductible gift recipient (see further below) or endorsed for charity tax concessions.
Endorsement as a deductible gift recipient is available to public art galleries and public funds that are on the Register of Cultural Organisations. The benefit of such an endorsement is that donors receive a tax deduction for their donations, provided that there is a voluntary transfer of money or property (as opposed to a loan) and the donor does not receive any benefit from the donation.
For a gift of property (such as an artwork) to be deductible, the property must either be purchased less than 12 months prior to the gift, or valued by the Australian Taxation Office at over A$5,000. If the property was purchased less than 12 months prior to the gift, the tax deduction would be calculated as the lesser of the market value of the property on the day the gift is made and the amount paid by the donor for the property.77 If the property has been valued by the Australian Taxation Office at over A$5,000, the tax deduction will be the value of the property at the time of the gift, as determined by the Australian Taxation Office.78
The Cultural Gifts Program is another means of using the tax system to encourage people to donate cultural property to public institutions. To participate in the Program, public collecting institutions must be endorsed by the Australian Taxation Office as a deductible gift recipient, with two exceptions – the Australiana Fund and Artbank.79 Where a gift is made to a participating public collecting institution and the gift is included in the institution's permanent collection, the donor receives a tax deduction of the market value of the gift, which can be spread across five income years. The donation is also exempt from capital gains tax.80
Gifts donated under a will or by executors of deceased estates do not receive the tax benefits under the Cultural Gifts Program; these gifts are not tax deductible.81 Nevertheless, large bequests have been made to public galleries; in October 2020 the Queensland Art Gallery received an A$35 million bequest.82
In addition to tax-deductible donations, individuals may also be interested in investing in art as part of their self-managed superannuation arrangements. However, an amendment to Australian superannuation laws in 2011 prohibits art bought through a self-managed superannuation fund to be displayed; this would be viewed as the fund members receiving a present-day benefit. Instead, the artworks would need to be leased to galleries or placed in storage. It has been claimed that the change in superannuation legislation has had an adverse effect on the market over the past decade, given that self-managed superannuation funds had been the purchasers for up to a quarter of Australian art sales and up to 40 per cent of indigenous art sales.83
Outlook and conclusions
While relatively small on a global scale, the Australian art market is mature and well regulated.
The ongoing effects of the covid-19 pandemic on the economy are likely to continue into 2022, with business insolvencies likely to result in disputes over payments and ownership.
Over the coming year, policy issues around indigenous art, particularly restrictions on the sale of fake indigenous art, and the preservation of cultural heritage, will continue to be debated. It is also expected that legislative reform in respect of copyright and Australia's anti-money laundering regime will progress.
1 Janine Lapworth is a senior consultant at Simpsons Solicitors. The author extends thanks to Adam Moxon Simpson, director, and Shane Simpson and Ian McDonald, special counsel, at Simpsons Solicitors for their review of the earlier edition and suggestions.
3 Average calculated from figures provided at www.aasd.com.au/index.cfm/artist-nationality-totals/, accessed 10 November 2021.
4 Kembrey, Melanie, 'Controversial $6.8 million art acquisition delayed due to coronavirus', Sydney Morning Herald, 24 April 2020, at www.smh.com.au/culture/art-and-design/controversial-6-8-million-art-acquisition-delayed-due-to-coronavirus-20200422-p54m0k.html, accessed 10 November 2021.
6 The Senate, Select Committee on the Aboriginal Flag, October 2020, accessible at www.aph.gov.au/Parliamentary_Business/Committees/Senate/Aboriginal_Flag/AboriginalFlag/Report, accessed 10 November 2021.
7 See www.aph.gov.au/Parliamentary_Business/Committees/Senate/Aboriginal_Flag/AboriginalFlag/Government_Response, accessed 10 November 2021.
8 Hepburn, Samantha, 'Rio Tinto just blasted away an ancient Aboriginal site. Here's why that was allowed', The Conversation, 27 May 2020, at https://theconversation.com/rio-tinto-just-blasted-away-an-ancient-aboriginal-site-heres-why-that-was-allowed-139466, accessed 10 November 2021.
9 Joint Standing Committee on Northern Australia, 'A Way Forward', October 2021, accessible at www.aph.gov.au/Parliamentary_Business/Committees/Joint/Northern_Australia/CavesatJuukanGorge/Report, accessed 10 November 2021.
10 See www.wa.gov.au/government/document-collections/aboriginal-cultural-heritage-bill-2021#the-bill, accessed 29 November 2021.
12 Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, Section 51.
13 Barker, Anne, 'Dancing Shiva: National Gallery of Australia should get $11m compensation for stolen statue, court rules', ABC News, accessible at www.abc.net.au/news/2016-09-26/nga-granted-11m-compensation-for-stolen-dancing-shiva/7878740, accessed 10 November 2021.
14 See https://nga.gov.au/collections/asia/gallery.cfm?DisplayGal=ASIAPROV_Kapoor, accessed 10 November 2021.
15 See www.abc.net.au/news/2021-07-29/indian-artefacts-repatriated-from-national-gallery-australia/100331278, accessed 10 November 2021.
16 See https://nga.gov.au/collection/pdfs/aqupolicy_duediligence.pdf, accessed 10 November 2021.
17 See, for example, https://nga.gov.au/collections/europeamerica/gallery.cfm?displaygal=prov; www.ngv.vic.gov.au/explore/collection/provenance; and www.qagoma.qld.gov.au/learn/research/provenance, each accessed 10 November 2021.
19 Blakeney, M, 'Restitution of Art Looted During the Nazi Era, 1933–1945: Implications for Australia'  UWALawRw 16; (2016) 41(1) University of Western Australia Law Review 251.
21 The tort of detinue relates to the wrongful detention of property by a person, coupled with the person's unreasonable refusal of the owner's demand for the property to be returned.
22 The tort of conversion is available where a person who does not have legal title over goods deals with them in a way inconsistent with the owner's rights.
23 Limitation Act 1969 (NSW), Sections 14(1)(a) and 14A.
24 McBride v. Christie's Australia Pty Limited  NSWSC 1729.
25 See also Stanowitsch International Pty Ltd v. Drake  VCC 436, discussed in Section IV.
26 See https://visualarts.net.au/code-of-practice/11-commercial-galleries/, accessed 10 November 2021.
27 See https://visualarts.net.au/code-of-practice/23-best-practice-standards-publicly-funded-exhibitions/, accessed 10 November 2021.
28 See www.artslaw.com.au/services/alternative-dispute-resolution-service/, accessed 10 November 2021.
29 Trade Practices Act 1974 (Cth), Section 52. Since the proceedings, this legislation has been replaced by the Australian Consumer Law, in Schedule 2 of the Competition and Consumer Act 2010 (Cth), which contains an identical provision in Section 18.
30 Trade Practices Act 1974 (Cth), Sections 51AA, 51AB and 51AC, now see Australian Consumer Law, Part 2-2.
31 Stanowitsch International Pty Ltd v. Drake  VCC 436.
32 Coslovich, G, 'Guilty verdict in Melbourne fake art scam', Australian Financial Review, 30 April 2021, accessible at www.afr.com/life-and-luxury/arts-and-culture/guilty-verdict-in-melbourne-fake-art-scam-20210430-p57nrm, accessed 10 November 2021.
33 'Brett Whiteley art fraud conviction against Victorian pair quashed', ABC News, 27 April 2017, at www.abc.net.au/news/2017-04-27/whiteley-art-fraud-convictions-quashed/8476216, accessed 10 November 2021.
35 The Senate, Environment and Communications Legislation Committee, Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019. Accessible at www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/IndigCulturalExpression/Report, accessed 10 November 2021.
36 Australian Competition and Consumer Commission v. Birubi Art Pty Ltd (in liq)  FCA 1595.
37 Australian Competition and Consumer Commission v. Birubi Art Pty Ltd (in liq) No. 3  FCA 996.
38 Australian Government Productivity Commission, 'Aboriginal and Torres Strait Islander Visual Arts and Crafts Issues Paper, 2021', accessible at www.pc.gov.au/inquiries/current/indigenous-arts/issues/indigenous-arts-issues.pdf, accessed 10 November 2021.
39 Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, Section 3(1).
40 There are exceptions if a business acquires goods for re-supply or to use them up or transform them in the course of trade: see Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, Section 3(2).
41 Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, Sections 51–53. These sections are of general application, whereas the other consumer guarantees do not apply.
42 Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, Sections 54–59.
43 Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, Chapter 2 and Part 3-1.
44 See Motor Dealers and Chattel Auctioneers Act 2014 (Qld) and Motor Dealers and Chattel Auctioneers Regulation 2014 (Qld).
45 Boland, Michaela, 'Mossgreen administrator report recommends criminal charges be considered, alleges bosses withdrew from “client bank account”', ABC News, 26 April 2018, accessible at www.abc.net.au/news/2018-04-26/mossgreen-administrator-report-recommends-charges-considered/9696568, accessed 10 November 2021.
47 Protection of Movable Cultural Heritage Regulations 2018 (Cth), Schedule 1.
48 Protection of Movable Cultural Heritage Regulations 2018 (Cth), Schedule 1 Part 5.
49 See www.arts.gov.au/what-we-do/cultural-heritage/movable-cultural-heritage/exporting-cultural-property-australia/movable, accessed 10 November 2021.
50 See www.ato.gov.au/uploadedFiles/Content/IND/Downloads/Foreign-Income.pdf, accessed 10 November 2021.
51 Attorney-General's Department, Report on the Statutory Review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and Associated Rules and Regulations, April 2016, accessible at www.austrac.gov.au/about-us/corporate-information-and-governance/reports-and-accountability/report-statutory-review-amlctf-act-and-associated-rules-and-regulations, accessed 10 November 2021.
52 Attorney-General's Department, Consultation Paper – High-value dealers – a model for regulation under Australia's anti-money laundering and counter-terrorism financing (AML/CTF) regime. November 2016, accessible at www.homeaffairs.gov.au/how-to-engage-us-subsite/files/amf-ctf-regime/high-value-dealers-model-regulation.pdf, accessed 10 November 2021.
53 See www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/AUSTRAC, and www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/AUSTRAC/Terms_of_Reference, each accessed 10 November 2021.
54 Copyright Act 1968 (Cth), Section 189.
55 Copyright Act 1968 (Cth), Section 195AK.
56 Copyright Act 1968 (Cth), Section 195AT.
57 Copyright Act 1968 (Cth), Section 195AM.
58 Copyright Act 1968 (Cth), Section 195AWA.
59 Corby v. Allen & Unwin Pty Limited  FCA 370; Tyler v. Sevin  FCCA 445; Monte v. Fairfax Media Publications Pty Ltd  FCCA 1633.
60 Williams, Elliot, 'Fears Anzac Hall to be demolished in war memorial redevelopment', Canberra Times, 28 October 2018, www.canberratimes.com.au/story/6001177/fears-anzac-hall-to-be-demolished-in-war-memorial-redevelopment/, accessed 10 November 2021.
61 Vass v. Nationwide News Pty Ltd  NSWSC 1721.
62 Resale Royalty Right for Visual Artists Act 2009 (Cth), Sections 8 and 10.
63 Resale Royalty Right for Visual Artists Act 2009 (Cth), Section 11.
64 Resale Royalty Right for Visual Artists Act 2009 (Cth), Section 8(2).
65 Resale Royalty Right for Visual Artists Act 2009 (Cth), Section 14.
66 Resale Royalty Right for Visual Artists Act 2009 (Cth), Sections 12 and 15.
67 Resale Royalty Right for Visual Artists Act 2009 (Cth), Section 18.
68 Resale Royalty Right for Visual Artists Act 2009 (Cth), Section 20.
69 Department of Communication and the Arts, Post-Implementation Review – Resale Royalty Right for Visual Artists Act 2009 and the Resale Royalty Scheme, 2019, available at www.arts.gov.au/documents/post-implementation-review-resale-royalty-right-visual-artists-act-2009-and-resale-royalty-scheme, accessed 10 November 2021.
70 Department of Communication and the Arts, Post-Implementation Review – Resale Royalty Right for Visual Artists Act 2009 and the Resale Royalty Scheme, 2019 at 9.
71 Department of Communication and the Arts, Post-Implementation Review – Resale Royalty Right for Visual Artists Act 2009 and the Resale Royalty Scheme, 2019 at 52.
72 Copyright Agency, '10 years of Resale Royalty for Australian artists', at www.copyright.com.au/2020/06/10-years-resale-royalty/, accessed 10 November 2021.
73 Copyright Agency, 'Can Blockchain assist with Resale Royalty?', at www.copyright.com.au/2021/03/can-blockchain-assist-with-resale-royalty/, accessed 10 November 2021.
74 Copyright Act 1968 (Cth), Part IVA, Division 4.
75 Copyright Act 1968 (Cth), Part VII, Division 2.
76 See www.communications.gov.au/departmental-news/copyright-access-reforms, accessed 10 November 2021.
77 See www.ato.gov.au/Non-profit/Gifts-and-fundraising/Claiming-tax-deductions/Gift-types,-requirements-and-valuation-rules/Property-purchased-during-the-12-months-before-making-the-gift/, accessed 10 November 2021.
80 See ibid.
81 See www.arts.gov.au/what-we-do/cultural-heritage/cultural-gifts-program/information-donors, accessed 10 November 2021.
82 'QAGOMA receives transformative bequest from Win Schubert', 10 October 2020, at https://blog.qagoma.qld.gov.au/qagoma-receives-transformative-bequest-from-win-schubert/, accessed 10 November 2021.
83 Plastow, Killian, 'How superannuation laws are strangling Australia's art scene', The New Daily, 29 September 2019, www.thenewdaily.com.au/finance/superannuation/2019/09/29/superannuation-laws-hurt-art-scene, accessed 10 November 2021.