{"id":"C2009A00125","name":"Resale Royalty Right for Visual Artists Act 2009","slug":"resale-royalty-right-for-visual-artists-act-2009","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"125 of 2009","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":40417,"registerId":"commonwealth-C2009A00125-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"## Part 1—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n This Act may be cited as the Resale Royalty Right for Visual Artists Act 2009.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"#### 3 Definitions\n\n In this Act:\n\n> art market professional has the meaning given by subsection 8(3).\n\n> artwork has the meaning given by section 7.\n\n> buyer, in relation to the commercial resale of an artwork, means a person to whom, either alone or together with one or more other persons, ownership of the artwork is transferred under the commercial resale.\n\n> civil penalty provision has the meaning given by section 40.\n\n> collecting society means the society for the time being appointed as the collecting society under section 35.\n\n> commercial resale has the meaning given by section 8.\n\n> community body means a body (whether incorporated or unincorporated) established by a community for the purposes of supporting or promoting the welfare or cultural values of the community.\n\n> evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.\n\n> Federal Court means the Federal Court of Australia.\n\n> GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.\n\n> identified, in relation to an artist of an artwork, has the meaning given by section 13.\n\n> permanent resident means a person:\n\n (a) who is not an Australian citizen; and\n (b) whose normal place of residence is situated in Australia; and\n (c) whose presence in Australia is not subject to any limitation as to time imposed by law; and\n (d) who is not an unlawful non‑citizen.\n\n> personal information has the same meaning as in the Privacy Act 1988.\n\n> resale royalty right has the meaning given by section 6.\n\n> residency test has the meaning given by section 14.\n\n> rules, in relation to the collecting society, means the provisions of the memorandum and articles of association of the society.\n\n> seller, in relation to the commercial resale of an artwork, means a person who, either alone or together with one or more other persons, transfers ownership of the artwork under the commercial resale.\n\n> succession test has the meaning given by section 15.\n\n> time of a commercial resale is the earlier of:\n\n (a) the start of the day on which ownership of the artwork is transferred under the commercial resale; and\n (b) the start of the day on which consideration for the commercial resale is fully paid.\n\n> unlawful non‑citizen has the same meaning as in the Migration Act 1958.\n\n> works of visual art has a meaning affected by subsection 7(2).","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Act binds the Crown","content":"#### 4 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"External Territories","content":"#### 5 External Territories\n\n This Act extends to all the external Territories.","sortOrder":5},{"sectionNumber":"Part 2","sectionType":"part","heading":"Resale royalty right","content":"An Act to create a right to resale royalty in relation to artworks, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act may be cited as the Resale Royalty Right for Visual Artists Act 2009.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

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

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

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

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

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

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

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

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

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

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

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

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

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

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.

9 December 2009

2. Sections 3 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

9 June 2010

3. Part 2

At the same time as the provisions covered by table item 2.

9 June 2010

4. Part 3

The day on which this Act receives the Royal Assent.

9 December 2009

5. Parts 4 and 5

At the same time as the provisions covered by table item 2.

9 June 2010

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.\n\n#### 3 Definitions\n\n In this Act:\n\n> art market professional has the meaning given by subsection 8(3).\n\n> artwork has the meaning given by section 7.\n\n> buyer, in relation to the commercial resale of an artwork, means a person to whom, either alone or together with one or more other persons, ownership of the artwork is transferred under the commercial resale.\n\n> civil penalty provision has the meaning given by section 40.\n\n> collecting society means the society for the time being appointed as the collecting society under section 35.\n\n> commercial resale has the meaning given by section 8.\n\n> community body means a body (whether incorporated or unincorporated) established by a community for the purposes of supporting or promoting the welfare or cultural values of the community.\n\n> evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.\n\n> Federal Court means the Federal Court of Australia.\n\n> GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.\n\n> identified, in relation to an artist of an artwork, has the meaning given by section 13.\n\n> permanent resident means a person:\n\n (a) who is not an Australian citizen; and\n (b) whose normal place of residence is situated in Australia; and\n (c) whose presence in Australia is not subject to any limitation as to time imposed by law; and\n (d) who is not an unlawful non‑citizen.\n\n> personal information has the same meaning as in the Privacy Act 1988.\n\n> resale royalty right has the meaning given by section 6.\n\n> residency test has the meaning given by section 14.\n\n> rules, in relation to the collecting society, means the provisions of the memorandum and articles of association of the society.\n\n> seller, in relation to the commercial resale of an artwork, means a person who, either alone or together with one or more other persons, transfers ownership of the artwork under the commercial resale.\n\n> succession test has the meaning given by section 15.\n\n> time of a commercial resale is the earlier of:\n\n (a) the start of the day on which ownership of the artwork is transferred under the commercial resale; and\n (b) the start of the day on which consideration for the commercial resale is fully paid.\n\n> unlawful non‑citizen has the same meaning as in the Migration Act 1958.\n\n> works of visual art has a meaning affected by subsection 7(2).\n\n#### 4 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.\n\n#### 5 External Territories\n\n This Act extends to all the external Territories.\n\n## Part 2—Resale royalty right\n\n### Division 1—When does resale royalty right arise?\n\n#### 6 Resale royalty right\n\n Resale royalty right is the right to receive resale royalty on the commercial resale of an artwork.\n\n#### 7 What is an artwork?\n\n (1) An artwork is an original work of visual art that is either:\n (a) created by the artist or artists; or\n (b) produced under the authority of the artist or artists.\n (2) Works of visual art include, but are not limited to, the following:\n (a) artists’ books;\n (b) batiks;\n (c) carvings;\n (d) ceramics;\n (e) collages;\n (f) digital artworks;\n (g) drawings;\n (h) engravings;\n (i) fine art jewellery;\n (j) glassware;\n (k) installations;\n (l) lithographs;\n (m) multimedia artworks;\n (n) paintings;\n (o) photographs;\n (p) pictures;\n (q) prints;\n (r) sculptures;\n (s) tapestries;\n (t) video artworks;\n (u) weavings;\n (v) any other things prescribed by the regulations.\n\n#### 8 What is commercial resale of an artwork?\n\n (1) There is a commercial resale of an artwork if:\n (a) ownership of the artwork is transferred from one person to another for monetary consideration; and\n (b) the transfer is not the first transfer of ownership of the artwork; and\n (c) the transfer is not otherwise one of an excluded class.\n (2) The transfer of ownership of an artwork from one individual to another in circumstances that do not involve an art market professional acting in that capacity, is an excluded class of transfer.\n (3) Art market professional means:\n (a) an auctioneer; or\n (b) the owner or operator of an art gallery; or\n (c) the owner or operator of a museum; or\n (d) an art dealer; or\n (e) a person otherwise involved in the business of dealing in artworks.\n\n#### 9 No resale royalty right on certain works\n\n There is no resale royalty right on the commercial resale of:\n (a) a building, or a drawing, plan or model for a building; or\n (b) a circuit layout within the meaning of the Circuit Layouts Act 1989; or\n (c) a manuscript (in whatever form) of a literary, dramatic or musical work.\n\n#### 10 No resale royalty right unless consideration above threshold\n\n Threshold\n (1) There is no resale royalty right on the commercial resale of an artwork for a sale price of less than:\n (a) $1,000 or, if the sale price is paid in a foreign currency, the amount worked out using the exchange rate applicable at the time of the commercial resale that is equivalent to $1,000; or\n (b) if a higher amount is prescribed by the regulations—that higher amount.\n Definition of sale price\n (2) The sale price on the commercial resale of an artwork means the amount paid for the artwork by the buyer on the commercial resale including GST, but does not include any buyer’s premium or other tax payable on the sale.\n\n#### 11 Resale royalty right on artworks in existence when Act commences\n\n If an artwork exists on the commencement of this Part, there is no resale royalty right on the first transfer of ownership of the artwork on or after commencement, even if the transfer of ownership is under a commercial resale.\n\n### Division 2—Who holds resale royalty right?\n\n#### 12 Who holds resale royalty right?\n\n Artwork created by a single living artist\n (1) If an artwork was created by a single artist who is identified and living at the time of a commercial resale of the artwork, resale royalty right on the commercial resale is held by the artist, provided he or she satisfies the residency test at the time of the commercial resale.\n Artwork created by a single artist who is no longer living\n (2) If an artwork was created by a single artist who is identified but no longer living at the time of a commercial resale of the artwork and who satisfied the residency test immediately before his or her death, resale royalty right on the commercial resale is held by:\n (a) if there is only one successor in title to the right—that entity, provided the entity satisfies the residency test at the time of the commercial resale and the succession test; and\n (b) if there is more than one successor in title to the right—each of those entities that satisfies the residency test at the time of the commercial resale and the succession test.\n Artwork created by more than one artist\n (3) If an artwork was created by more than one artist, resale royalty right on a commercial resale of the artwork is held by:\n (a) for each artist who is living at the time of the commercial resale—the artist, provided he or she is identified and satisfies the residency test at that time; and\n (b) for each artist who is identified but no longer living at the time of the commercial resale, who satisfied the residency test immediately before his or her death, and through whom there is only one successor in title to the right—that entity, provided the entity satisfies the residency test at the time of the commercial resale and the succession test; and\n (c) for each artist who is identified but no longer living at the time of the commercial resale, who satisfied the residency test immediately before his or her death and through whom there is more than one successor in title to the right—each of those entities that satisfies the residency test at the time of the commercial resale and the succession test.\n Later successors in title\n (4) If an entity holds an interest in the resale royalty right on the commercial resale of an artwork by operation of subsection (2) or (3), or by an earlier operation of this subsection, but the entity is dead or has been wound up at the time of the next commercial resale of the artwork, resale royalty right is held on the next commercial resale of the artwork by:\n (a) if there is only one successor in title to the right—that entity, provided it satisfies the residency test at the time of the next commercial resale and the succession test; and\n (b) if there is more than one successor in title to the right—each of those entities that satisfies the residency test at the time of the next commercial resale and the succession test.\n\n#### 13 Meaning of identified\n\n (1) A person is identified as an artist of an artwork at the time of a commercial resale of the artwork if, at that time, the person’s identity as an artist of the artwork is known to:\n (a) a seller of the artwork under the commercial resale; or\n (b) a buyer of the artwork under the commercial resale; or\n (c) any art market professional acting as the agent of a buyer or a seller of the artwork under the commercial resale; or\n (d) the collecting society; or\n (e) in the case of an artwork for which there is more than one artist—another artist of the artwork.\n (2) A person is identified as an artist of an artwork at any other time if, at that time, the person’s identity as an artist of the artwork is known to:\n (a) the collecting society; or\n (b) in the case of an artwork for which there is more than one artist—another artist of the artwork.\n\n#### 14 Residency test\n\n (1) An individual satisfies the residency test at a particular time if, at that time, the individual is:\n (a) an Australian citizen; or\n (b) a permanent resident of Australia; or\n (c) a national or citizen of a country prescribed as a reciprocating country.\n (2) A corporation satisfies the residency test at a particular time if:\n (a) it is incorporated under the Corporations Act 2001, or under the law of a country prescribed as a reciprocating country; or\n (b) it carries on an enterprise, at that time, in Australia or a country prescribed as a reciprocating country.\n (3) An unincorporated body satisfies the residency test at a particular time if it carries on an enterprise, at that time, in Australia or a country prescribed as a reciprocating country.\n\n#### 15 Succession test\n\n (1) An entity satisfies the succession test in relation to resale royalty right on the commercial resale of an artistic work, if the entity satisfies:\n (a) criteria 1 and 2 (in subsections (2) and (3)); or\n (b) criteria 3 and 4 (in subsections (4) and (5)).\n Criterion 1\n (2) The entity received its interest in the right by testamentary disposition, or in accordance with the rules of intestate succession, on the death of an individual.\n Criterion 2\n (3) The entity is one of the following:\n (a) an individual with a beneficial interest in the right;\n (b) a charity or charitable institution with a beneficial interest in the right;\n (c) a community body with a beneficial interest in the right;\n (d) a person who holds an interest in the right in trust for:\n (i) an individual; or\n (ii) a charity or charitable institution; or\n (iii) a community body.\n Criterion 3\n (4) The entity received its interest in the right on the winding up of a charity, charitable institution or a community body.\n Criterion 4\n (5) The entity is a charity, charitable institution or a community body formed for substantially the same purposes as the body that was wound up.\n\n#### 16 Share of resale royalty right where there is more than one artist\n\n Where there is more than one artist and they are all living\n (1) If all of the holders of the resale royalty right on the commercial resale of an artwork are artists of the artwork, each artist is entitled to an equal share of the resale royalty on that commercial resale, unless:\n (a) the artists have agreed to apportion shares in the resale royalty differently; and\n (b) that agreement does not give a share of the resale royalty to any other person (other than through testamentary disposition or in accordance with the rules of intestate succession on the death of an artist).\n Where more than one artist, but one is no longer living\n (2) If:\n (a) there is more than one artist of an artwork; and\n (b) one of the artists is identified but no longer living at the time of a commercial resale of the artwork; and\n (c) the artist satisfied the residency test immediately before his or her death;\n it is the share of the resale royalty on the commercial resale of the artwork to which the artist would have been entitled had the artist been alive, identified and satisfied the residency test at the time of the commercial resale that passes to those holding resale royalty right on the commercial resale of the artwork through that artist.\n\n#### 17 Presumptions in relation to artist\n\n If a mark or name purporting to identify a person as an artist of an artwork appears on the artwork, then the presence of the mark or name is taken to be prima facie evidence for the purposes of this Act that:\n (a) in a case where there is no other such mark or name on the artwork—the person is the artist of the artwork; and\n (b) in a case where there is another such mark or name on the artwork—the person is one of the artists of the artwork.\n\n### Division 3—Rate of resale royalty\n\n#### 18 Rate of resale royalty\n\n Resale royalty is payable at the rate of 5% of the sale price on the commercial resale of an artwork.\n\n### Division 4—Liability to pay resale royalty\n\n#### 19 Resale royalty a debt due to holders of resale royalty right\n\n Resale royalty on the commercial resale of an artwork is a debt due to the holders of the resale royalty right on the commercial resale by those who have a liability to pay the resale royalty.\n\n#### 20 Liability to pay resale royalty\n\n The following persons are jointly and severally liable to pay resale royalty on the commercial resale of an artwork:\n (a) the seller or, if there is more than one seller, all of the sellers; and\n (b) each person acting in the capacity of an art market professional and as agent for the seller; and\n (c) if there is no such agent—each person acting in the capacity of an art market professional and as agent for the buyer; and\n (d) if there are no such agents—the buyer or, if there is more than one buyer, all of the buyers.\n\n#### 21 When does the liability to pay resale royalty arise?\n\n Liability to pay resale royalty on the commercial resale of an artwork arises at the time of the commercial resale of the artwork.\n\n### Division 5—Collecting resale royalty\n\n#### 22 Collecting society to publish notice of the commercial resale of an artwork on its website\n\n If:\n (a) the collecting society becomes aware of the commercial resale of an artwork; and\n (b) the collecting society believes, on reasonable grounds, that an entity may hold resale royalty right, or an interest in the resale royalty right, on the commercial resale under this Act;\n the collecting society must, as soon as it is reasonably practicable after becoming aware of the commercial resale of the artwork, publish notice of the commercial resale on its website.\n\n#### 23 Collection of resale royalty by the collecting society\n\n (1) This section applies unless:\n (a) the holder of the resale royalty right on the commercial resale of an artwork; or\n (b) if there is more than one holder of the resale royalty right on the commercial resale of an artwork—all the holders of the resale royalty right on the commercial resale of the artwork;\n notify the collecting society in writing, within 21 days after notice of the commercial resale is published on the collecting society’s website, that the collecting society is not to collect the resale royalty, or enforce the resale royalty right, on the commercial resale on behalf of the holder or holders of the right.\n (2) The collecting society must use its best endeavours to collect the resale royalty payable under this Act, and, if necessary, enforce any resale royalty right held under this Act, on the commercial resale of the artwork on behalf of the holder or holders of the resale royalty right.\n (3) The collecting society is not subject to the direction of any holder or holders of the resale royalty right in collecting the resale royalty or enforcing that right.\n\n#### 24 Presumptions to be made in enforcement proceedings brought by the collecting society\n\n In proceedings for the enforcement of the resale royalty right on the commercial resale of an artwork by the collecting society:\n (a) it is to be presumed conclusively that there is at least one holder of the resale royalty right under this Act; and\n (b) it is to be presumed that the collecting society is acting on behalf of the holder or holders of the resale royalty right, unless it is proved that a notice was given to the collecting society in accordance with subsection 23(1) in relation to the commercial resale.\n\n#### 25 Resale royalty right under this Act only enforceable in Australian jurisdiction\n\n Resale royalty right held under this Act is only enforceable in an Australian federal court, or a court of a State or Territory, of competent jurisdiction.\n\n#### 26 If resale royalty is paid to the collecting society\n\n (1) If resale royalty on the commercial resale of an artwork is paid to the collecting society, the collecting society must:\n (a) pay to each entity that has given the collecting society notice under subsection 27(1) and established a claim to a share of the resale royalty on the commercial resale, that entity’s share of the resale royalty less the collecting society’s administration fee; and\n (b) use its best endeavours to locate each holder of the resale royalty right on the commercial resale of the artwork who has not given the collecting society notice under subsection 27(1), and pay that holder the holder’s share of the resale royalty, less the collecting society’s administration fee.\n (2) The collecting society’s administration fee must not be such as to amount to a tax.\n (3) The Minister may, by notice in writing given to the collecting society, limit the administration fee to be imposed by the collecting society.\n (4) A notice given under subsection (3) is not a legislative instrument.\n\n#### 27 Notice of resale royalty right\n\n (1) An entity that claims to hold a resale royalty right, or an interest in a resale royalty right, under this Act may give the collecting society written notice in the manner and form approved by the collecting society setting out:\n (a) the entity’s name; and\n (b) the entity’s address; and\n (c) the proportion of the resale royalty right to which the entity claims that it is entitled; and\n (d) details of the basis on which the entity makes that claim.\n (2) The collecting society may, by written notice, request an entity that has given the society notice under subsection (1) to provide further information in support of the claim within a specified time of no less than 60 days.\n\n#### 28 Notice of commercial resale\n\n (1) A person must give the collecting society notice complying with subsection (2) of the commercial resale of an artwork if:\n (a) the person is a seller under the commercial resale; and\n (b) the person is:\n (i) an Australian citizen; or\n (ii) a permanent resident of Australia; or\n (iii) a corporation incorporated under the Corporations Act 2001; or\n (iv) a person (including a body corporate) who carries on an enterprise in Australia; or\n (v) a trustee of a trust of which one of the persons mentioned in subparagraphs (i) to (iv) (inclusive) is a beneficiary.\n\nCivil penalty:\n\n (a) for an individual—200 penalty units;\n (b) for a body corporate—1,000 penalty units.\n (2) The notice must:\n (a) be in writing; and\n (b) be given to the collecting society within the period of 90 days beginning at the time of the commercial resale; and\n (c) include sufficient detail to allow the collecting society:\n (i) to work out whether resale royalty is payable on the commercial resale under this Act; and\n (ii) to work out the amount of resale royalty payable under this Act; and\n (iii) to identify who is liable to pay the resale royalty.\n (3) The seller may satisfy the requirement to give notice in accordance with this section through an agent.\n (4) If:\n (a) there is more than one seller under the commercial resale of an artwork; and\n (b) one of the sellers gives the collecting society notice in accordance with this section;\n then all of the sellers are taken to have given the collecting society notice in accordance with this section.\n (5) A person who wishes to rely on subsection (3) or (4) bears an evidential burden in relation to those matters.\n\n#### 29 Requesting information about the commercial resale of an artwork\n\n (1) If the collecting society believes on reasonable grounds that a person is:\n (a) a seller under a commercial resale of an artwork; or\n (b) a buyer under a commercial resale of an artwork; or\n (c) an agent of a seller or buyer under a commercial resale of an artwork; or\n (d) an art market professional otherwise involved in a commercial resale of an artwork;\n the collecting society may, in writing, request the person to give the collecting society information in relation to the commercial resale relevant to determining:\n (e) the amount of any resale royalty payable on the commercial resale under this Act; and\n (f) who is liable to make the payment.\n (2) If:\n (a) a request is made to a person in accordance with subsection (1); and\n (b) the commercial resale in relation to which the request was made occurred within 6 years before the request was made;\n the person must comply with the request within 90 days after it is given.\n\nCivil penalty:\n\n (a) for an individual—100 penalty units;\n (b) for a body corporate—500 penalty units.\n\n#### 30 Recovery of amount wrongly paid by the collecting society\n\n (1) If the collecting society pays resale royalty on the commercial resale of an artwork to a person who does not hold a resale royalty right on that commercial resale, or an interest in such a right, the amount wrongly paid is a debt due by the person to whom it was paid to the holders of the resale royalty right on the commercial resale.\n (2) If the collecting society pays a holder of resale royalty right on the commercial resale of an artwork more than that holder’s share of the resale royalty on that commercial resale, an amount equal to the difference between the payment and that holder’s share of the resale royalty is a debt due by the person to whom it was paid to the other holders of the resale royalty right on the commercial resale.\n (3) A holder of the resale royalty right on the commercial resale, or an interest in that right, of an artwork may request the collecting society to collect, or enforce repayment of, an amount under this section on the holder’s behalf.\n (4) The collecting society may, if requested to do so by a holder of the resale royalty right or an interest in the right, collect, or enforce repayment of, an amount under this section on the holder’s behalf, and is subject to the direction of the holder of the right in doing so.\n\n#### 31 Return of unclaimed resale royalty\n\n (1) If:\n (a) resale royalty is paid to the collecting society on the commercial resale of an artwork; and\n (b) despite using its best endeavours, the collecting society is unable to locate a holder of the resale royalty right on the commercial resale or an interest in the right during a period of 6 years beginning at the time of the commercial resale;\n the collecting society must deal with that holder’s share of the resale royalty together with interest earned on that share less the collecting society’s administration fee, in accordance with subsection (2).\n (2) The collecting society must:\n (a) distribute the amount in equal shares to those of the remaining holders of the resale royalty right who can be located; or\n (b) if no such person can be located—distribute the amount in equal shares to the persons who paid the resale royalty and who can be located; or\n (c) if no such person can be located—retain the amount for use in the collection and distribution of resale royalties and the enforcement of resale royalty rights.\n\n### Division 6—Other characteristics of resale royalty right\n\n#### 32 Duration of resale royalty right\n\n Resale royalty right continues to subsist in relation to an artwork until the end of 70 years after:\n (a) if there is only one artist of the artwork—the end of the calendar year in which the artist dies; or\n (b) if there is more than one artist of the artwork then, in relation to the proportion of the resale royalty right held by or through a particular artist—the end of the calendar year in which the artist dies.\n\n#### 33 Resale royalty right absolutely inalienable\n\n Except to the extent permitted under the succession test, resale royalty right is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy, insolvency or otherwise.\n\n#### 34 Waiver etc.\n\n (1) A waiver of a resale royalty right is of no effect.\n (2) An agreement to share or repay a resale royalty, other than an agreement mentioned in paragraph 16(1)(b), is void.\n\n## Part 3—The collecting society\n\n#### 35 Appointment of the collecting society\n\n (1) A body may apply to the Minister to be appointed as the collecting society.\n (2) After receiving the application, the Minister must do one of the following:\n (a) appoint the body to be the collecting society, by notice in the Gazette, for a period not exceeding 5 years specified in the notice;\n (b) refuse to appoint the body to be the collecting society.\n (3) Only one body may be appointed to be the collecting society at a time. A body must not be appointed to be the collecting society while another body is appointed to be the collecting society.\n (4) The Minister must not appoint a body to be the collecting society unless:\n (a) it is a company limited by guarantee and incorporated under the Corporations Act 2001; and\n (b) all resale royalty right holders are entitled to become its members; and\n (c) its rules prohibit the payment of dividends to its members; and\n (d) its rules contain provisions of the kind determined by legislative instrument by the Minister, being provisions necessary to ensure that the interests of holders of resale royalty rights or their agents are protected adequately, including, in particular, provisions about:\n (i) the collection of amounts of resale royalty; and\n (ii) the distribution of amounts collected by the society; and\n (iii) the holding on trust by the society of amounts for holders of resale royalty rights who are not its members; and\n (iv) access to records of the society by holders of resale royalty rights and their agents.\n\n#### 36 Revocation of appointment\n\n (1) This section applies if:\n (a) the Minister is satisfied that the body appointed as the collecting society:\n (i) is not functioning adequately as the collecting society; or\n (ii) is not acting in accordance with its rules or in the best interests of those of its members who are resale royalty holders; or\n (iii) has altered its rules so that they no longer comply with paragraphs 35(4)(b) to (d); or\n (iv) has refused or failed, without reasonable excuse, to comply with section 37 or 38; or\n (b) the body appointed as the collecting society requests the Minister, in writing, to revoke the appointment and the Minister is satisfied that it is in the best interests of those holding resale royalty rights to do so.\n (2) The Minister may, by notice in the Gazette, revoke the appointment.\n (3) The revocation takes effect on the day on which the notice is published in the Gazette or, if a later day is specified in the notice, on that later day.\n\n#### 37 Annual report and accounts\n\n (1) The collecting society must, as soon as practicable after the end of each financial year ending on or after 30 June 2010, prepare a report of its operations during that financial year and send a copy of the report to the Minister.\n (2) The collecting society must not include in that report any information that the society is satisfied:\n (a) is commercial‑in‑confidence; or\n (b) consists of personal information of an individual.\n (3) In satisfying itself whether information to be included in a report is commercial‑in‑confidence, the society must consider each of the following:\n (a) whether release of the information would cause competitive detriment to a person;\n (b) whether the information is in the public domain;\n (c) whether the information is required to be disclosed under another law of the Commonwealth, a State or a Territory;\n (d) whether the information is readily discoverable.\n (4) The Minister must cause a copy of the report sent to the Minister under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Minister.\n (5) The society must keep accounting records correctly recording and explaining the transactions of the society (including any transactions as trustee) and the financial position of the society.\n (6) The accounting records must be kept in such a manner as will enable true and fair accounts of the society to be prepared from time to time and those accounts to be conveniently and properly audited.\n (7) The society must, as soon as practicable after the end of each financial year, cause its accounts to be audited by an auditor who is not a member of the society, and must send to the Minister a copy of its accounts as so audited.\n (8) The society must give its members reasonable access to copies of all reports and audited accounts prepared under this section.\n (9) This section does not affect any obligations of the society relating to the preparation and lodging of annual returns or accounts under the law under which it is incorporated.\n\n#### 38 Amendment of rules\n\n The collecting society must, within 21 days after it alters its rules, send a copy of the rules as so altered to the Minister, together with a statement setting out the effect of the alteration and the reasons why it was made.\n\n## Part 4—Civil penalties\n\n### Division 1—Obtaining an order for a civil penalty\n\n#### 39 Court may order person to pay pecuniary penalty for contravening civil penalty provision\n\n Application for order\n (1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the collecting society may apply on behalf of the Commonwealth to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.\n Court may order wrongdoer to pay pecuniary penalty\n (2) If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision).\n Determining amount of pecuniary penalty\n (3) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:\n (a) the nature and extent of the contravention; and\n (b) the nature and extent of any loss or damage suffered as a result of the contravention; and\n (c) the circumstances in which the contravention took place; and\n (d) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.\n Conduct contravening more than one civil penalty provision\n (4) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.\n\n#### 40 What is a civil penalty provision?\n\n A subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:\n (a) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section); or\n (b) another provision of this Act specifies that the subsection (or section) is a civil penalty provision.\n\n#### 41 Contravening a civil penalty provision is not an offence\n\n A contravention of a civil penalty provision is not an offence.\n\n#### 42 Persons involved in contravening civil penalty provision\n\n (1) A person must not:\n (a) aid, abet, counsel or procure a contravention of a civil penalty provision; or\n (b) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or\n (c) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or\n (d) conspire to contravene a civil penalty provision.\n (2) This Part applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.\n\n#### 43 Recovery of a pecuniary penalty\n\n If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) orders a person to pay a pecuniary penalty:\n (a) the penalty is payable to the Commonwealth; and\n (b) the Commonwealth may enforce the order as if it were a judgment of the Court.\n\n### Division 2—Civil penalty proceedings and criminal proceedings\n\n#### 44 Civil proceedings after criminal proceedings\n\n The Federal Court or Federal Circuit and Family Court of Australia (Division 2) must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.\n\n#### 45 Criminal proceedings during civil proceedings\n\n (1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision are stayed if:\n (a) criminal proceedings are started or have already been started against the person for an offence; and\n (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.\n (2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.\n\n#### 46 Criminal proceedings after civil proceedings\n\n Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a pecuniary penalty order has been made against the person.\n\n#### 47 Evidence given in proceedings for penalty not admissible in criminal proceedings\n\n Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:\n (a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and\n (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.\n However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.\n\n## Part 5—Miscellaneous\n\n#### 48 Offence—unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (b) the information was acquired by the person in the course of performing functions or exercising powers under this Act.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) the person records, discloses or otherwise uses the information in the course of performing duties or exercising powers under this Act; or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) A person to whom this section applies must not be required to:\n (a) disclose information that the person acquired in the course of performing functions or exercising powers under this Act to a court; or\n (b) produce all or part of a document that contains information of that kind to a court;\n unless that disclosure or production is necessary for the purposes of this Act. For this purpose, court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.\n\n#### 49 Review by Administrative Review Tribunal\n\n Applications may be made to the Administrative Review Tribunal for a review of a decision of the following kind:\n (a) a decision of the Minister under subsection 35(2) to:\n (i) appoint a body to be the collecting society; or\n (ii) refuse to appoint a body to be the collecting society;\n (b) a decision of the Minister to revoke the appointment of a body as the collecting society in circumstances to which section 36 applies because of paragraph 36(1)(a).\n\n#### 50 Jurisdiction of Federal Court\n\n Jurisdiction is conferred on the Federal Court with respect to actions:\n (a) for the enforcement of resale royalty right on the commercial resale of an artwork; and\n (b) to determine who is the holder, or who are the holders, of a resale royalty right on the commercial resale of an artwork; and\n (c) to enforce the payment of a share of the resale royalty right on the commercial resale of an artwork from the collecting society; and\n (d) to recover amounts of resale royalty wrongly paid by the collecting society; and\n (e) for the enforcement of civil penalty provisions; and\n (f) relating to any other matters arising under this Act.\n\n#### 51 Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)\n\n Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) with respect to actions:\n (a) for the enforcement of resale royalty right on the commercial resale of an artwork; and\n (b) to determine who is the holder, or who are the holders, of a resale royalty right on the commercial resale of an artwork; and\n (c) to enforce the payment of a share of the resale royalty right on the commercial resale of an artwork from the collecting society; and\n (d) to recover amounts of resale royalty wrongly paid by the collecting society; and\n (e) for the enforcement of civil penalty provisions; and\n (f) relating to any other matters arising under this Act.\n\n#### 52 Additional effect of Act\n\n Without limiting its effect apart from this section, this Act also has the effect it would have if its operation were expressly confined to:\n (a) giving effect to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or\n (b) matters external to Australia; or\n (c) matters of international concern.\n\n#### 53 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) prescribed or permitted to be prescribed by this Act; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":47},{"sectionNumber":"39","sectionType":"section","heading":"Court may order person to pay pecuniary penalty for contravening civil penalty provision","content":"#### 39 Court may order person to pay pecuniary penalty for contravening civil penalty provision\n\n Application for order\n (1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the collecting society may apply on behalf of the Commonwealth to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.\n Court may order wrongdoer to pay pecuniary penalty\n (2) If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision).\n Determining amount of pecuniary penalty\n (3) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:\n (a) the nature and extent of the contravention; and\n (b) the nature and extent of any loss or damage suffered as a result of the contravention; and\n (c) the circumstances in which the contravention took place; and\n (d) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.\n Conduct contravening more than one civil penalty provision\n (4) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.","sortOrder":49},{"sectionNumber":"40","sectionType":"section","heading":"What is a civil penalty provision?","content":"#### 40 What is a civil penalty provision?\n\n A subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:\n (a) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section); or\n (b) another provision of this Act specifies that the subsection (or section) is a civil penalty provision.","sortOrder":50},{"sectionNumber":"41","sectionType":"section","heading":"Contravening a civil penalty provision is not an offence","content":"#### 41 Contravening a civil penalty provision is not an offence\n\n A contravention of a civil penalty provision is not an offence.","sortOrder":51},{"sectionNumber":"42","sectionType":"section","heading":"Persons involved in contravening civil penalty provision","content":"#### 42 Persons involved in contravening civil penalty provision\n\n (1) A person must not:\n (a) aid, abet, counsel or procure a contravention of a civil penalty provision; or\n (b) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or\n (c) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or\n (d) conspire to contravene a civil penalty provision.\n (2) This Part applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.","sortOrder":52},{"sectionNumber":"43","sectionType":"section","heading":"Recovery of a pecuniary penalty","content":"#### 43 Recovery of a pecuniary penalty\n\n If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) orders a person to pay a pecuniary penalty:\n (a) the penalty is payable to the Commonwealth; and\n (b) the Commonwealth may enforce the order as if it were a judgment of the Court.","sortOrder":53},{"sectionNumber":"44","sectionType":"section","heading":"Civil proceedings after criminal proceedings","content":"#### 44 Civil proceedings after criminal proceedings\n\n The Federal Court or Federal Circuit and Family Court of Australia (Division 2) must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.","sortOrder":55},{"sectionNumber":"45","sectionType":"section","heading":"Criminal proceedings during civil proceedings","content":"#### 45 Criminal proceedings during civil proceedings\n\n (1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision are stayed if:\n (a) criminal proceedings are started or have already been started against the person for an offence; and\n (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.\n (2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.","sortOrder":56},{"sectionNumber":"46","sectionType":"section","heading":"Criminal proceedings after civil proceedings","content":"#### 46 Criminal proceedings after civil proceedings\n\n Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a pecuniary penalty order has been made against the person.","sortOrder":57},{"sectionNumber":"47","sectionType":"section","heading":"Evidence given in proceedings for penalty not admissible in criminal proceedings","content":"#### 47 Evidence given in proceedings for penalty not admissible in criminal proceedings\n\n Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:\n (a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and\n (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.\n However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.","sortOrder":58},{"sectionNumber":"Part 5","sectionType":"part","heading":"Miscellaneous","content":"## Part 5—Miscellaneous","sortOrder":59},{"sectionNumber":"48","sectionType":"section","heading":"Offence—unauthorised dealing with information","content":"#### 48 Offence—unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (b) the information was acquired by the person in the course of performing functions or exercising powers under this Act.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) the person records, discloses or otherwise uses the information in the course of performing duties or exercising powers under this Act; or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) A person to whom this section applies must not be required to:\n (a) disclose information that the person acquired in the course of performing functions or exercising powers under this Act to a court; or\n (b) produce all or part of a document that contains information of that kind to a court;\n unless that disclosure or production is necessary for the purposes of this Act. For this purpose, court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.","sortOrder":60},{"sectionNumber":"49","sectionType":"section","heading":"Review by Administrative Review Tribunal","content":"#### 49 Review by Administrative Review Tribunal\n\n Applications may be made to the Administrative Review Tribunal for a review of a decision of the following kind:\n (a) a decision of the Minister under subsection 35(2) to:\n (i) appoint a body to be the collecting society; or\n (ii) refuse to appoint a body to be the collecting society;\n (b) a decision of the Minister to revoke the appointment of a body as the collecting society in circumstances to which section 36 applies because of paragraph 36(1)(a).","sortOrder":61},{"sectionNumber":"50","sectionType":"section","heading":"Jurisdiction of Federal Court","content":"#### 50 Jurisdiction of Federal Court\n\n Jurisdiction is conferred on the Federal Court with respect to actions:\n (a) for the enforcement of resale royalty right on the commercial resale of an artwork; and\n (b) to determine who is the holder, or who are the holders, of a resale royalty right on the commercial resale of an artwork; and\n (c) to enforce the payment of a share of the resale royalty right on the commercial resale of an artwork from the collecting society; and\n (d) to recover amounts of resale royalty wrongly paid by the collecting society; and\n (e) for the enforcement of civil penalty provisions; and\n (f) relating to any other matters arising under this Act.","sortOrder":62},{"sectionNumber":"51","sectionType":"section","heading":"Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)","content":"#### 51 Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)\n\n Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) with respect to actions:\n (a) for the enforcement of resale royalty right on the commercial resale of an artwork; and\n (b) to determine who is the holder, or who are the holders, of a resale royalty right on the commercial resale of an artwork; and\n (c) to enforce the payment of a share of the resale royalty right on the commercial resale of an artwork from the collecting society; and\n (d) to recover amounts of resale royalty wrongly paid by the collecting society; and\n (e) for the enforcement of civil penalty provisions; and\n (f) relating to any other matters arising under this Act.","sortOrder":63},{"sectionNumber":"52","sectionType":"section","heading":"Additional effect of Act","content":"#### 52 Additional effect of Act\n\n Without limiting its effect apart from this section, this Act also has the effect it would have if its operation were expressly confined to:\n (a) giving effect to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or\n (b) matters external to Australia; or\n (c) matters of international concern.","sortOrder":64},{"sectionNumber":"53","sectionType":"section","heading":"Regulations","content":"#### 53 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) prescribed or permitted to be prescribed by this Act; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":65}],"analysis":{"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"summary":{"complexity_score":7,"scope_assessment":{"changed":false,"description":"The Act appears consistent with its stated purpose of creating a resale royalty right for visual artists. The scope is well-defined and targeted — it covers commercial resales of original visual artworks through art market professionals, excludes private person-to-person sales, and focuses benefits on Australian-connected artists and their qualifying heirs. There is no evidence of scope creep beyond the original intent."},"complexity_factors":["Multiple layered eligibility tests (residency test, succession test, identification test) that must all be satisfied simultaneously","Complex chain-of-succession rules for deceased artists, including multi-generational transfers through estates, charities, and community bodies","Joint and several liability (meaning multiple parties can each be fully responsible for the same debt) across sellers, art market professionals, and buyers, with a tiered priority order","The 'identified' definition depends on who knows what at the time of resale, creating fact-specific ambiguity","Interaction between civil penalty regime and criminal proceedings, with stay provisions and evidence exclusion rules","Inalienability of the right combined with narrow succession exceptions creates unusual property law outcomes","Collecting society framework adds a regulatory layer with its own appointment, revocation, reporting, and enforcement obligations","International dimension via reciprocating countries and Berne Convention, requiring cross-border analysis","Unclaimed royalty waterfall distribution mechanism with a 6-year limitation period","Transitional rule exempting first resale of pre-commencement artworks adds retrospective complexity"],"plain_english_summary":"## What This Law Does\n\nThis Act gives visual artists (and their heirs) the right to receive a **5% royalty payment every time their artwork is resold commercially** — think auction houses, art galleries, art dealers, and museums. This is called a \"resale royalty right.\"\n\n## Who Does It Affect?\n\n**Artists benefit if:**\n- They are an Australian citizen or permanent resident (or citizen of a qualifying overseas country)\n- Their original artwork (painting, sculpture, photograph, digital artwork, ceramic, jewellery, weaving, and many more) is resold for **$1,000 or more**\n- The resale involves an art market professional (auctioneer, gallery, dealer, etc.)\n\n**Sellers, auction houses, galleries and dealers are affected because:**\n- They must notify a government-appointed **collecting society** (an organisation that collects and distributes the royalties) within 90 days of any qualifying resale\n- They are jointly responsible for paying the 5% royalty\n- Failure to notify can result in fines of up to **$22,000 for individuals** or **$110,000 for companies** (based on current penalty unit values)\n\n**Buyers are generally last in line** — if there's no art market professional involved, the buyer may be liable for the royalty.\n\n## Key Rules to Know\n\n- **Private sales between individuals** (with no gallery or dealer involved) are **exempt** — the royalty only applies when an art market professional is part of the deal\n- **Buildings, circuit layouts, and manuscripts** are excluded\n- The right **cannot be sold, given away, or waived** — artists cannot sign away this right even if pressured to do so\n- The right lasts for **70 years after the artist's death**, then expires\n- After an artist dies, the right passes to their **estate or heirs**, but only individuals, charities, community bodies, or trustees for those groups can inherit it — not corporations chasing a profit\n- Artworks that already existed when the law started (9 June 2010) get **one free resale** before the royalty kicks in\n\n## The Collecting Society\n\nA single government-approved organisation collects and distributes the royalties. It:\n- Must be a not-for-profit company\n- Publishes notices of resales on its website\n- Hunts down the right artists or their heirs to pay them\n- Can take an **administration fee** (capped by the Minister)\n- If it can't find the right person within **6 years**, the unclaimed money is redistributed or kept for running costs\n\n## Why It Matters\n\nArtists often sell their work cheaply early in their career, then watch it fetch millions at auction years later — and get nothing. This law ensures artists (and their families) share in that later success. It's modelled on similar laws in Europe and aligns with the international Berne Convention on artistic rights."},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":false,"description":"This version remains focused on the single policy objective set out in the Act: creating and administering a resale royalty right for visual artists and providing an enforcement and collection framework. It does not add broad new subject‑matter beyond that purpose. The text does give the Minister and the appointed collecting society significant operational roles (appointment, rule content, fee limits) which expand administrative control over how the right is collected and distributed, but those are within the Act’s original scope of setting up and regulating a central collection and distribution mechanism (see s.35 and s.26(3))."},"complexity_factors":["Multiple defined terms that interact (artwork, commercial resale, art market professional, identified, residency test, succession test, time of a commercial resale, collecting society, resale royalty right).","Nested conditional logic for who holds the right (s.12–16): living vs deceased artists; multiple artists; successors; residency and succession tests.","Several cross‑references between Parts (e.g. s.6 refers to s.18; s.23 and s.24 rely on s.27 and s.22; enforcement and penalties cross‑refer to civil penalty provisions).","Multiple notice and time limits with different burdens (21 days to opt out after publication by collecting society s.23; 90 days seller notice s.28; 60 days for providing further information s.27(2); 6‑year lookback for information requests s.29).","Ministerial and delegated rulemaking/administrative instruments: Minister appoints collecting society and prescribes rule content; Minister may limit administration fees (s.35, s.26(3)).","Interaction of civil penalty regime and criminal confidentiality offence (s.39–47 and s.48), with stay/dismissal rules causing procedural complexity.","Inalienability and void waiver rules (s.33–34) that limit private contracting and require careful drafting for related commercial agreements."],"plain_english_summary":"**What this law does (mechanically)\n\n- Creates a statutory \"resale royalty right\" for visual artists (s.6). That right gives entitled persons a claim to 5% of the sale price when an artwork is resold through the commercial art market (s.18). \n\n- Defines when a resale triggers the right: a \"commercial resale\" is a transfer of ownership for money that is not the first transfer and is not an excluded class (s.8). Transfers between private individuals that do not involve an \"art market professional\" are excluded (s.8(2)–(3)). \n\n- Limits: the royalty does not apply to certain subject‑matter (e.g. buildings, circuit layouts, manuscripts) (s.9) and only applies where the sale price equals or exceeds a threshold (currently $1,000 unless regulations change it) (s.10). If an artwork already existed when this Part commenced, the first transfer after commencement is exempt (s.11). \n\n- Identifies who holds the right: the identified living artist (if they meet the residency test) or, after death, successors who meet the succession and residency tests (detailed multi‑step rules in s.12–15). Where there are multiple artists and they are all living, each artist gets an equal share unless they agreed otherwise (s.16). A mark or name on the work is prima facie evidence of authorship (s.17). \n\n- Makes the royalty a debt due to right‑holders and sets joint and several liability for payment: primarily the seller, then art market professional agents, and failing those, the buyer (s.19–21). Liability arises at the time of the commercial resale (s.21). \n\n- Sets up a single authorised \"collecting society\" to gather and distribute royalties (appointment by the Minister for up to 5 years) (s.35). The collecting society must publish notices of resales it becomes aware of (s.22); unless a right‑holder opts out in writing within a short window, the society will collect and enforce royalties on behalf of right‑holders (s.23). \n\n- Requires sellers (as specified classes of persons) to notify the collecting society of resales within 90 days, with civil penalties for non‑compliance (s.28). The collecting society can also request information from market participants about resales (s.29) and may keep records, distribute funds (less an administration fee) and attempt to locate missing right‑holders (s.26, 30–31). The Minister may limit the society's administration fee (s.26(3)). \n\n- Duration and transferability: the resale royalty right subsists for 70 years after an artist’s death (s.32). Except as allowed by the succession rules, the right is inalienable and waivers are void (s.33–34). \n\n- Enforcement and penalties: the collecting society may pursue civil pecuniary penalties (brought on behalf of the Commonwealth in federal court) within six years (s.39). Some contraventions attract specific civil penalty amounts set at the foot of sections (see s.40). There is also a criminal offence (up to 2 years imprisonment) for unauthorised use or disclosure of information acquired under the Act (s.48). Federal courts and the Federal Circuit and Family Court (Division 2) have jurisdiction for enforcement and related disputes (s.50–51). \n\n- Other mechanics: the Act binds the Crown but does not make the Crown liable to pecuniary penalties or prosecution (except for Crown authorities) (s.4); it extends to external Territories (s.5); regulations and ministerial instruments fill out procedural detail (s.53). \n\nWhy it matters (purpose claims and practical tests)\n\n- The text frames the Act as establishing an artist’s entitlement to a share of the increase in value when works re‑enter the market. That is the stated purpose (s.6 and long title). Mechanically that is done by: (a) creating a statutory right; (b) imposing payor liability on market participants; and (c) centralising collection through an appointed collecting society. \n\n- Practical effects and trade‑offs you can expect from the Act’s mechanics: \n - Compliance costs concentrated on market intermediaries: galleries, auctioneers and dealers (defined as \"art market professionals\" in s.8(3)) must track provenance, notify the collecting society (s.22, s.28), respond to information requests (s.29) and carry joint liability (s.20). Those costs are concrete administrative tasks and legal risk. \n - Incentive and substitution effects: because private transfers between individuals that do not involve art market professionals are excluded (s.8(2)), some sellers may prefer private sales to avoid royalty and reporting obligations. That is a direct behavioural channel created by the statutory definition. \n - Price and contract effects: a statutory 5% levy on qualifying resales (s.18) is an explicit transaction cost. Market participants will decide how to allocate it (seller discount, buyer premium, commission adjustments). The Act bars private contractual waiver or assignment of the right (s.33–34), so parties cannot contract away the statutory claim except as the succession test permits—this limits contract freedom and may affect liquidity for works that would otherwise be encumbered. \n - Centralised enforcement and regulatory discretion: the Minister appoints the collecting society and can set required rule content for it (s.35(4)(d)), revoke appointments (s.36) and limit administration fees (s.26(3)). That concentrates enforcement power in a single private body subject to ministerial oversight. The Act therefore creates opportunities for concentrated governance choices (e.g. membership rules, distribution policies) to determine how the right operates in practice. \n - Administrative burden and evidentiary difficulties: identifying the artist and successors requires evidence (see s.12–13, s.15). The collecting society must locate absent right‑holders (s.26(1)(b), s.31). Those tasks can be resource‑intensive and create delay, disputes and potential over‑ or under‑payments (s.30 provides recovery rules where payments were made incorrectly). \n - Public enforcement architecture and dispute costs: enforcement occurs in federal jurisdictions (s.39, s.50–51), and civil penalty proceedings interact with criminal proceedings under the Act (s.44–47). Rights‑holders or collectives may bring litigation; market participants face litigation risk and evidential burdens (s.23(5), s.29(2) penalties). \n\nWho pays, who decides and what behaviour changes (plain terms)\n\n- Who pays: the statutory payors are sellers and, secondarily, art market professionals who act as agents and ultimately buyers if no agents exist (s.20). In practice market participants (e.g. galleries, auction houses) will often deduct or collect the payment from sellers or buyers. \n- Who decides: the collecting society collects and enforces (s.23) and the Minister appoints and supervises that society (s.35–36) and can restrict its fee (s.26(3)). Courts determine disputes and award civil penalties (s.39, s.50–51). \n- Behaviour changes likely to follow: increased record‑keeping and reporting by art market professionals; potential shift to private sales to avoid royalty/reporting; pricing adjustments to reflect the 5% load; administrative and compliance outsourcing to the collecting society.\n\nImplementation risks and compliance burden (concrete)\n\n- Identification and proof: the statute relies on knowledge to determine who is \"identified\" (s.13) and requires claims and supporting information by prospective right‑holders (s.27). Disputes about identification, residency and succession are predictable. \n- Single collecting society: centralising collection reduces multiple collection costs but concentrates operational risk (if the society fails to perform the Minister may revoke appointment (s.36)). The society must publish notices and maintain records (s.22, s.37–38), which generates data‑handling obligations and privacy questions (personal information defined). \n- Penalties and time limits: civil penalties attach to failure to notify (s.28) and refusal to comply with information requests (s.29), and civil penalty litigation can be brought within six years (s.39). Those time windows and penalties create quantifiable compliance exposure. \n\nNeutral, source‑grounded summary of incentives and costs\n\n- The law creates a concentrated benefit: direct payments to right‑holders (artists and eligible successors). The compliance and administrative costs are borne mainly by market intermediaries and, indirectly, by buyers and sellers through prices. \n- The Act restricts private ordering by making the right inalienable and invalidating waivers (s.33–34), which reduces contractual flexibility but secures the intended revenue stream for right‑holders. \n- The Ministerial role (appointment, rules content, fee limits) and the collecting society’s operational choices are the main implementation levers; those levers determine distribution efficiency and governance outcomes in practice (s.35, s.26(3))."},"kimi_summary":{"_metrics":{"completionTokens":663},"content_quality":"ok","complexity_score":7,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose: creating a resale royalty right for visual artists. The structure includes necessary administrative machinery (collecting society, civil penalties, enforcement) that supports rather than expands the core scheme. No significant scope creep detected."},"complexity_factors":["Multiple overlapping definitions with cross-references (e.g., 'artwork', 'commercial resale', 'identified', 'residency test', 'succession test')","Complex succession rules for deceased artists with multiple criteria and alternative pathways","Layered liability structure: sellers → agents → buyers, with joint and several liability","Conditional logic for collecting society operations (opt-out mechanisms, presumptions in enforcement)","Civil penalty provisions with detailed procedural rules and interaction with criminal proceedings","Extensive cross-referencing to other Acts (Corporations Act, Migration Act, Privacy Act, GST Act, Circuit Layouts Act)","Temporal complexity: different commencement dates for different Parts, 70-year post-death duration, 6-year limitation periods","Multiple jurisdictional hooks (Australian courts, reciprocating countries, external territories)"],"plain_english_summary":"**What this law does:**\n\nThis Act gives visual artists in Australia a legal right to receive money when their artwork is resold commercially. It's often called a \"resale royalty\" or \"droit de suite\" (a French term meaning \"right to follow\").\n\n**How it works in simple terms:**\n\n- **The royalty:** When an artwork sells for $1,000 or more in a commercial resale, the artist (or their estate) gets **5% of the sale price**.\n- **Who pays:** The seller is primarily responsible, but art market professionals (auctioneers, galleries, dealers) and buyers can also be liable if the seller doesn't pay.\n- **Who can claim:** Australian citizens, permanent residents, and citizens of \"reciprocating countries\" (countries with similar laws). The right lasts for **70 years after the artist's death** and passes to their heirs or estate.\n- **How it's collected:** A single government-appointed \"collecting society\" handles the money—finding artists, collecting payments from sellers, and distributing royalties (minus an administration fee).\n\n**What counts as \"artwork\":**\nPaintings, sculptures, photographs, prints, ceramics, digital art, installations, and more. **Not included:** buildings, circuit layouts, or manuscripts of literary/musical works.\n\n**What counts as \"commercial resale\":**\nAny resale involving an \"art market professional\" (auctioneer, gallery, dealer, etc.). Private sales between individuals don't count.\n\n**Why it matters:**\nThis helps artists benefit from the increasing value of their work over time—especially important for Indigenous artists and others whose early works may sell cheaply but later become valuable. It aligns Australia with international standards (like the Berne Convention) and similar laws in many European countries."}},"importantCases":[],"_links":{"self":"/api/acts/resale-royalty-right-for-visual-artists-act-2009","history":"/api/acts/resale-royalty-right-for-visual-artists-act-2009/history","analysis":"/api/acts/resale-royalty-right-for-visual-artists-act-2009/analysis","conflicts":"/api/acts/resale-royalty-right-for-visual-artists-act-2009/conflicts","importantCases":"/api/acts/resale-royalty-right-for-visual-artists-act-2009/important-cases","documents":"/api/acts/resale-royalty-right-for-visual-artists-act-2009/documents"}}