ACommercial implications of newly announced changes to the Moveable Cultural Heritage Act in relation to exporting Australian Indigenous art.

by: Adrian Newstead   published: 20th December 2018

Commercial implications of newly announced changes to the Moveable Cultural Heritage Act in relation to exporting Australian Indigenous art.

Cooee Art recognises that retaining Australian culturally significant objects is vital to the nation’s identity and respects the work of Mr Shane Simpson AM.    

In July 2015, it was announced that the Hon. George Brandis, then Federal Minister for the Arts had appointed Mr Shane Simpson AM to undertake a review of the Protection of Movable Cultural Heritage Act (PMCH Act) and its regulations. Exactly one week prior to the due date, 30 September 2015, the Hon Mitch Fifield replaced Brandis as the Minister. Though Simpson consulted widely in formulating his recommendations and submitted the report on schedule, Fifield sat on it for more than three years, and during that period, Simpson’s recommendations languished – they were not canvassed publicly for industry scrutiny or comment.

This week the new Protection of Movable Cultural Heritage Regulations 2018 were finally announced.

Although the changes were designed to simplify the act, remove anachronistic regulations and streamline compliance, a number of the changes lack foresight and represent a significant lost opportunity.

Under the previous regulations ‘fine art objects of Australian Aboriginal and Torres Strait Islander heritage’ required export permits if they were valued at AUD$10,000 or more and were created over 20 years ago. The act, last amended in 1986, therefore captured works of art created prior to 1966. By 2018 however, it affected works created as late as 1998. Clearly, the law was out of touch with the rapid growth of the Aboriginal arts industry which saw sales of Aboriginal art exceed AUD$45 million by the mid 1990s with works by dozens of artists being sold in the primary market for sums in excess of AUD$10,000.

I do not intend to pick Simpson’s new regulations apart one at a time. YOU CAN READ THE NEW REGULATIONS IN DETAIL HERE. I’m clearly more interested in how they affect the Aboriginal art market at a time when institutions in Australia are starved of funds. Most find themselves unable to respond positively when offered works of heritage significance that appear for sale.

In the last 12 months alone, I have had the privilege to offer major collecting institutions Emily Kame Kngwarreye’s Earth’s Creation I (sold to a private collector for AUD$2.1 million), and Tim Leura Tjapaltjarri’s magnificent 1971 Emu Dreaming (sold to a private overseas collector for AUD$110,000). All major Australian institutions were alerted to both of these important paintings, however, none competed for the works when offered at public sale.

One could argue about the value limits and the specific categories of cultural objects that are covered, (e.g. should every single early piece with some form of sacred imagery be forbidden from export?) however: the single biggest defect of the new regulations is that Simpson chose to increase the age limit from 20 to 30 years and $10,000 is now increase to $100,000 in each category of indigenous art. He therefore instituted the same defect in the new regulations that were inherent in the old. He set a time period that will, over time, become less and less relevant and more and more outdated.

Here’s a good example: Aboriginal desert paintings (including pre-1974 Aboriginal Papunya paintings), that do not include sacred and secret imagery will require a permit if they are more than 30 years of age and valued at AUD$100,000 or more. That’s anything made before the Australian Bicentennial in 1988 but within 10 years it will include every painting created by Emily Kame Kngwarreye. No less than 71 artworks by Kngwarreye have sold at public auction for more than AUD$100,000, not to mention the hundreds that have sold for sums in excess of that figure through art consultants and galleries. Or the work by Michael Nelson Tjakamarra recently sold by Sotheby’s to an overseas collector in London but where oh where are the Australian collectors or institutions willing to spend the AUD$687,875 that required to secure it?

Fifield will be completely unaware that at a time when the Aboriginal art industry faces its biggest challenge in two decades, and auction houses have turned their backs on Aboriginal art through sheer discouragement due to the scarcity of serious collectors, the sale of Michael Nelson’s painting in London was just the fillip the industry desperately needed.

Similarly, in ten years time, this will now capture works created by Rover Thomas, Paddy Jaminji (Jampin) and other Turkey Creek artists created between 1988 and 1998. I am at a loss to understand why this is of any significance. I’d be hard pushed to find a painting by any of them that exceeds the AUD$100,000 limit. Interestingly, 1998 was the first year that Paddy Bedford took up the brush. By 2028 all of his paintings will face export restrictions. No less than 22 of these have already sold for more than AUD$100,000 at public auction. Who knows how many will have exceeded that amount in a decade’s time?

Aboriginal bark paintings need only have been made prior to 1988 and be worth more than AUD$20,000 to fall under the act. Within 10 years this will include works created prior to 1998 and in two decades 2008. I wonder how the art centre managers in Maningrida and Yirrkala feel about this? There is no other way to say this – the new regulation pertaining to the resurgence of interest in bark painting is ridiculous, pure and simple.

During the past decade, the Aboriginal arts industry has seen artists such as Yannima Tommy Watson, Nyurapayia Nampitjinpa (Mrs Bennett), Naata Nungurrayi and Paddy Bedford achieve prices for their works that could only have been dreamed of formerly. Who knows what prices paintings by these and others who have yet to appear may achieve in the decades ahead?

In spite of the above, there is much to be pleased about in the clarity afforded by updating the act. No doubt there are many recommendations relating to other asset classes and taste cultures that make plenty of sense. But in an environment where 120 art centres and thousands of artists are absolutely reliant on a burgeoning market these regulations are in a number of significant areas, a wet blanket. It has taken over 30 years for the act to be amended. The recommendations sat on the minister’s desk for three years before approval. How long is it likely to be until inequities in the act are to be addressed once more?  

Adrian Newstead OAM
20 December 2018


Five stories by Michael Nelson Tjakamarra
Five stories
Michael Nelson Tjakamarra 1

121 x 182 cm
160921SOL #60