Resale Royalty Right for Visual Artists (Format of Notice of Commercial Resale) Determination 2023

The instrument is narrowly focused and conceptually simple, but it operationalises several concepts that determine how notices of commercial resale will be prepared, transmitted and standardised.

Format as legal concept: The primary legal mechanism is a statutory determination of acceptable "formats of notice of commercial resale" for the purposes of section 28 of the Act. That means the Minister has specified, by regulation, the form and field structure that satisfy the Act’s formal requirements for a notice (paragraph 6(1)). The instrument performs this by setting out two discrete formats: an interactive web form (Schedule 1) and an Excel spreadsheet (Schedule 2).

Data standardisation: Both schedules set fixed fields. The interactive form contains single-entry fields such as Artist Name, Pseudonym, Country, Is Artist Living (Yes, No, Unknown), Year of Birth, Year of Death, Work Title, Medium, Height and Width in centimetres, Details, Upload Image, Artist Work ID, Gallery Work ID, a question about whether the seller acquired the work after 8 June 2010 (with options Yes, No, Primary Sale, Unknown), Sale Price (inc. GST), Date Sold, and a warranty checkbox (Schedule 1). The Excel format mirrors these data elements as column headings, but splits artist name into Given, Middle and Family name columns and provides a tabular structure for batch entry (Schedule 2). By prescribing these fields the instrument sets the data items that will be submitted to fulfil the statutory notice.

Online centralisation: The instrument explicitly designates the internet address www.resaleroyalty.org.au as the location for both formats (paragraph 6(1)). That designates a centralised digital entry point for notices, implying a digital-first compliance pathway.

Temporal scope marker: The inclusion of the question "Did Seller Acquire Work After 8 June 2010?" in both formats embeds a temporal threshold relevant to eligibility or entitlement under the Act; the instrument requires that information to be captured as part of a compliant notice (Schedule 1; Schedule 2). The instrument itself does not explain the legal significance of that date; it supplies the field for whatever the Act’s rules require.

Repeal and replacement: Schedule 3 repeals the earlier 2012 determination in full. Conceptually, the instrument is a direct replacement of the prior formats and functions as an update to the statutory form options.

Definition anchoring: The instrument defines "Act" for the purposes of the document, anchoring all references to the Resale Royalty Right for Visual Artists Act 2009 (section 4). The determination is made under a specific regulation, Regulation 7 of the Resale Royalty Right for Visual Artists Regulations 2021 (section 3), placing it in the delegated legislation chain.

Collectively, these concepts mean that the instrument is procedural and data-driven. It sets the permissible vehicles and explicit data elements through which the statutory notice requirement under the Act can be satisfied, and it locates those vehicles on a named website.

Directly affected persons: The instrument affects any person or entity that is required to give a notice of commercial resale under the Resale Royalty Right for Visual Artists Act 2009. The instrument itself does not list those persons; it prescribes formats "for the purposes of section 28 of the Act" (paragraph 6(1)). Therefore, any individual or organisation legally obliged by the Act to lodge a notice under s 28 will now be expected to use, or be able to use, one of the two prescribed formats.

Intermediaries and service providers: Galleries, auction houses, dealers, registrars, legal advisers, accountants and registries that prepare or transmit notices on behalf of sellers or purchasers will be affected by the specified fields. The interactive form centralises input to an online interface; the Excel spreadsheet provides a tabular format suited to batch submissions. Both formats require particular data points, such as sale price inclusive of GST, dates, artist identity fields, dimensions in centimetres, and an acquisition-after-8-June-2010 flag; intermediaries will therefore need processes to collect, verify and enter those data elements when preparing notices (Schedule 1; Schedule 2).

Agencies and the Minister’s office: The Minister and the administrative apparatus that hosts www.resaleroyalty.org.au will be tasked with deploying the interactive web form and making the spreadsheet available at that web address, because the instrument explicitly provides that the formats are provided at that site (paragraph 6(1)). The instrument also implies an administrative duty to maintain the formats on the site and to ensure they match the Schedules, because the Schedules set the legally prescribed formats.

Data handlers and registries: Any government or quasi-government registry or data processor that consumes these notices will receive standardised fields and may rely on those fields for legal or administrative determination. The instrument’s specification of field types and units (for example centimetres for dimensions, sale price inclusive of GST) imposes expectations on data formats downstream.

Who is not altered by this instrument: The determination does not itself create new categories of liable persons nor alter substantive entitlements under the Act. It does not specify penalties, eligibility criteria, or change underlying rights in artworks. It focuses on the procedural mechanism for notices and replaces the prior format instrument (Schedule 3), so persons already subject to the Act’s notice obligations will mainly experience a change in the form and content of how notices are presented and submitted.

Practical note on burden allocation: By prescribing specific fields the instrument allocates the compliance task to the notice preparer. The presence of identity fields (artist name split in the spreadsheet), sale price inclusive of GST, and acquisition-date questions require the preparing party to obtain or verify potentially dispersed information before lodging a compliant notice (Schedule 1; Schedule 2).

Duties created or clarified by the instrument: The instrument does not create substantive statutory duties beyond prescribing acceptable formats for notices required under the Act. However, it imposes a procedural duty on persons giving notices to supply the specified data items if they are to rely on the specified formats as fulfilling the Act’s requirements. The instrument explicitly identifies the interactive web form and the Excel spreadsheet as formats of notice of commercial resale "for the purposes of section 28 of the Act" (paragraph 6(1)). Consequently, compliance with s 28 by using these formats requires inclusion of the fields set out in Schedule 1 or Schedule 2.

Mandatory data items: The Schedules show which data items the format expects. For the interactive form these include Artist Name, Pseudonym, Country, Is Artist Living (Yes/No/Unknown), Year of Birth, Year of Death (or Unknown), Work Title, Medium, Height and Width in centimetres, Details, an image upload, Artist Work ID, Gallery Work ID, whether the seller acquired the work after 8 June 2010 (Yes/No/Primary Sale/Unknown), Sale Price (inclusive of GST), Date Sold, and a warranty checkbox (Schedule 1). The Excel spreadsheet provides column headings for similar items, with separate columns for Given, Middle and Family name (Schedule 2). Those fields are the de facto checklist that a person using these formats must supply to submit a notice in the prescribed form.

Rights implicit in format selection: The instrument confers on notice-givers the right to use either of the prescribed formats to fulfil the formality required by the Act (paragraph 6(1)). It does not limit submitters to one format only, and by prescribing an Excel spreadsheet it permits batch or tabular submissions for multiple notices.

Ministerial authority and limits: The instrument is made under Regulation 7 of the Regulations (section 3). The instrument’s legal scope is constrained to setting formats; it does not purport to vary the substantive operation of the Act. The definition of "Act" within the instrument clarifies that references are to the Resale Royalty Right for Visual Artists Act 2009 (section 4).

Representation and warranty: The interactive form contains a declaration that the person lodging the notice warrants the information is correct (Schedule 1). That is the only internal element resembling a formal attestation within the instrument. The instrument does not provide guidance on the legal effect of that warranty, nor specify penalties for false information; any legal consequences would derive from the Act or other laws outside this instrument.

No penalties or enforcement mechanisms in the instrument: The determination does not itself set penalties, enforcement processes or review mechanisms for incorrect or incomplete notices. It is limited to format designation and repeal of the 2012 instrument (Schedule 3). Any duties, rights, penalties or consequences for failing to give a notice, or for providing incorrect information, would remain in the Act and Regulations referenced; the instrument does not purport to alter them.

Interpretative note: The instrument standardises the content that will be accepted if the person relies on the formats prescribed. Practically, persons subject to the Act must provide the listed data when using these formats to avoid procedural non-compliance with s 28, but the instrument leaves substantive legal obligations and remedies to the Act and Regulations.

The determination contains no penalties, sanctions, enforcement provisions or compliance-review mechanisms. It is a format-determination instrument made under Regulation 7 of the Regulations and its text confines itself to naming formats and setting out field content (section 3; paragraph 6(1); Schedules 1 and 2). The instrument does not include any provisions that impose fines, criminal offences, civil penalties, or administrative enforcement powers; it does not amend the Act or the Regulations’ penalty provisions.

Delegation of enforcement: Because the instrument is limited to specifying formats, it delegates enforcement to the substantive legal framework of the Act and the Regulations. Any consequences for failing to give a notice of commercial resale, giving an incorrect notice, or failing to include required information remain governed by the Act and associated Regulations. The instrument refers to section 28 of the Act by way of purpose, but does not repeat or restate any of section 28’s content or sanctions. Therefore, to understand enforcement consequences, a reader must consult the Act and Regulations; those materials are not part of this instrument.

Administrative compliance implications: The instrument creates practical compliance checkpoints through its prescribed fields. For example, the inclusion of a checkbox stating "I warrant that all the information I provided on this form is correct" in the interactive form (Schedule 1) establishes a self-declaration mechanism. Although this warranty is present in the form, the instrument does not specify the legal effect of that warranty or any downstream enforcement action to be taken on the basis of a breach of that warranty. Any enforcement would be exercised under the Act or other applicable law.

Prescribed submission channels: By designating www.resaleroyalty.org.au as the host for both formats (paragraph 6(1)), the instrument implies that notices submitted via those channels will be treated as compliant formats. The instrument does not specify timing, receipt acknowledgements, or verification processes on the website; it also does not establish obligations for the site operator concerning verification or enforcement.

Repeal of prior instrument and legal certainty: Schedule 3 repeals the 2012 determination in full. That repeal aims to provide legal clarity about which formats are current, thereby reducing uncertainty about which submissions qualify as compliant. However, the instrument does not provide transitional enforcement measures or savings clauses for notices lodged under the repealed 2012 instrument.

In sum, this instrument standardises format requirements but leaves enforcement and penalties to the governing Act and Regulations. It neither creates nor alters sanctioning authority.

Primary statutory anchor: The determination is explicitly made under Regulation 7 of the Resale Royalty Right for Visual Artists Regulations 2021 (section 3). It expressly operates for the purposes of section 28 of the Resale Royalty Right for Visual Artists Act 2009 (paragraph 6(1)). Therefore, the instrument functions as delegated legislation that fills in a procedural detail required by the Act and Regulations, namely the acceptable formats for notices of commercial resale.

No substantive amendment to the Act or Regulations: The instrument does not amend the Act or the Regulations substantively. It prescribes formats only, rather than changing eligibility, thresholds, or enforcement mechanisms. Any interplay with substantive obligations, such as who must give a notice, time limits, or penalties for failing to do so, remains governed by the Act and Regulations referenced. The instrument’s role is to specify how certain procedural requirements under the Act can be met.

Relationship to the repealed instrument: Schedule 3 repeals the Resale Royalty Right for Visual Artists (Format of Notice of Commercial Resale) Determination (No. 1) 2012 in whole. This interaction is direct: the 2023 instrument supersedes the 2012 instrument so that the 2012 formats no longer have statutory status. The repeal is self-contained in Schedule 3.

Administrative law implications: Because the instrument is subordinate legislation made under a regulation, it falls within the administrative law framework for delegated instruments. That implies it is subject to any procedural and publication requirements that govern determinations, including commencement rules; the instrument includes a commencement table specifying that the whole instrument commences the day after registration (section 2(1)). The commencement table further notes that column 3 information is not part of the instrument, which may be relevant to legal interpretation of commencement details.

Data protection and other regulatory regimes: The instrument prescribes data fields for a public-facing web form and a spreadsheet, including personal data such as artist name, year of birth and death, country, and sale price inclusive of GST (Schedule 1; Schedule 2). The instrument does not reference privacy, data-protection obligations, records retention rules, or accessibility standards. Those matters will interact with general privacy or information-handling laws outside this instrument, but the determination itself neither creates nor modifies those legal regimes.

Technical compliance with format standards: By prescribing an interactive web form and an Excel spreadsheet as acceptable formats, the instrument creates an interface point between the Act and web/IT systems. The instrument locates both formats at a specific URL, www.resaleroyalty.org.au (paragraph 6(1)). Any obligations under other legislation concerning electronic transactions, website accessibility, or archiving of electronic records will interact with the instrument insofar as they affect how the formats are hosted and used. The instrument itself does not invoke, modify, or reproduce those other legal obligations.

In sum, the instrument is a procedural, narrowly scoped piece of delegated legislation that interacts with the Act and Regulations by supplying required form detail. It repeals an earlier format instrument and sits within existing administrative and privacy frameworks without attempting to alter them.

Making and commencement: The determination is dated 17 March 2023 and is signed by Tony Burke, Minister for the Arts. The instrument states its commencement rule in a table: the whole of the instrument commences "the day after this instrument is registered" (section 2(1)). The instrument also contains a note that the commencement table relates only to the instrument as originally made and will not be amended when later amendments occur (section 2, note). The instrument defines "Act" for the document's purposes as the Resale Royalty Right for Visual Artists Act 2009 (section 4), and it records its authority under Regulation 7 of the 2021 Regulations (section 3).

Repeal of prior instrument: Schedule 3 contains a single item: it repeals in full the Resale Royalty Right for Visual Artists (Format of Notice of Commercial Resale) Determination (No. 1) 2012. The schedule marks the whole of that 2012 instrument for repeal. The consequential effect is that the 2012 format instrument no longer applies once the 2023 instrument commences.

Scope of amendment: The instrument’s section 5 states that each instrument specified in Schedule 3 is amended or repealed as set out in the applicable items, and that any other item in that Schedule has effect according to its terms. In this instrument only the 2012 instrument is specified. The instrument therefore operates as a replacement formatting instrument rather than an amendment instrument to the Act or the 2021 Regulations.

No other amendments in the text: The instrument does not present or purport to make any other amendments to legislation, rules, or forms. It contains no transitional provisions, savings provisions, or staged commencement for parts of the instrument. The commencement table indicates the whole instrument commences together (section 2(1)). Section 2(2) clarifies that information in column 3 of the commencement table is not part of the instrument and that such information may be inserted or edited in any published version; this is a drafting note about the form of the instrument rather than a substantive change.

Administrative update function: Based on its content, the determination appears to serve an administrative updating role: updating the statutory list of permitted notice formats and replacing the earlier instrument. The 2023 instrument is thus the operative format determination from its commencement date until it is further amended or repealed.

No amending history within the instrument: The instrument itself does not record prior amendments to the 2012 instrument, nor does it record earlier versions. It only states the repeal of that 2012 instrument and thereby supersedes it.

Practical consequence: After commencement, the formats and field lists in Schedules 1 and 2 become the controlling statutory design for notices of commercial resale. Entities preparing notices should ensure they conform to the Schedules rather than the now-repealed 2012 instrument.

The instrument contains no information about litigation. It does not reference any cases, judicial reviews, tribunals, or disputes related to its validity, interpretation, or effect. There is no list of past or pending court challenges included in the text.

What the instrument does record: It sets out the formats for notices and repeals a prior instrument, but does not include or refer to decisions that interpret the format requirements or the Act’s notice provisions. The instrument’s text is silent on any legal disputes.

Implication for practitioners: Because the instrument does not contain litigation history, practitioners seeking judicial interpretation of the format provisions or disputes arising from notices must look to subsequent case law or to the substantive Act and Regulations for related litigation. The determination itself provides no reported decisions, examples, or administrative rulings to guide interpretation beyond the literal field and format specifications in Schedules 1 and 2.

Administrative-review pathways: The instrument does not describe any administrative-review processes specific to format determinations. Any challenges to the instrument’s validity, or disputes about whether a particular submission complied with the prescribed formats, would be handled within the broader administrative and judicial review frameworks applicable to delegated legislation and to the Act. Those frameworks are not discussed in the instrument.

Record-keeping for dispute avoidance: Given the instrument prescribes an explicit set of fields and an attestation checkbox in the interactive form, practitioners may infer the practical need to retain copies of submissions, export logs, or spreadsheets to establish compliance; however the instrument itself does not mandate record-keeping periods nor provide litigation-specific guidance.

In short, the instrument provides no litigation record. Legal consequences, disputes and precedents about the meaning or sufficiency of notices under the Act will be found, if at all, in separate legal materials and case law, not in the text of this determination.

Precise field formats and units: The Schedules prescribe specific data items and units. For example, dimensions are captured in centimetres in the interactive form (Schedule 1) and the Excel columns are labelled "Dimensions Height (cm)" and "Dimensions width (cm)" (Schedule 2). Sale price is explicitly required "inc. GST" in the interactive form and similarly labelled in the spreadsheet. If a preparer submits figures in different units or omits GST inclusive conversion, the form as specified may capture incorrect data, and whether that affects compliance depends on the Act and Regulations, which the instrument itself does not alter. The instrument leaves no alternative field units, so care with units is required.

Different name structures between formats: The interactive form provides a single "Artist Name" field and a separate "Pseudonym" field (Schedule 1). The Excel spreadsheet splits the artist name into Given, Middle and Family Name columns (Schedule 2). If a user prepares a submission offline in spreadsheet form but later needs to map it to the web form, mismatches can occur. Practitioners should note the structural differences and ensure consistent mapping.

The acquisition date question: Both formats ask "Did Seller Acquire Work After 8 June 2010?" with options including "Primary Sale" and "Unknown" in the interactive form (Schedule 1). The instrument does not explain the legal significance of that date or the "Primary Sale" option. Users must ensure they understand the Act’s substantive test related to that date elsewhere, or risk misreporting. The presence of an "Unknown" option allows that uncertainty to be recorded, but the instrument does not indicate whether selecting "Unknown" impacts the notice’s legal sufficiency.

No validation or processing instructions included: The instrument prescribes fields but contains no technical validation rules, dropdown lists, size limits for uploads, accepted image formats for the "Upload Image" field, maximum text lengths for "Details" or handling of multiple works in one submission. The Excel spreadsheet allows multiple blank rows to be filled, but there is no guidance on maximum rows or batch size. These omissions mean that technical expectations will be determined by the website implementation rather than the instrument, so differences between the legal form and the live web form could create practical issues.

Attestation without stated legal consequence: The interactive form includes a warranty checkbox, "I warrant that all the information I provided on this form is correct" (Schedule 1). The instrument does not state the legal effect, or the particular civil or criminal consequences, of a false warranty. The existence of a warranty field is a potential point of risk in disputes, but the instrument does not define consequences.

Website dependency and availability: The instrument designates a single URL for the formats, www.resaleroyalty.org.au (paragraph 6(1)). If that site is unavailable, not updated to reflect the Schedules, or technically fails, the statutory option for compliant format may be affected in practice. The instrument does not set alternative submission methods nor transitional arrangements if the website is inaccessible.

Repeal effects on prior submissions: The instrument repeals the 2012 determination in full (Schedule 3). The instrument does not state whether notices lodged under the repealed 2012 instrument prior to repeal are saved, validated or need re-submission. Practitioners should be cautious and consult the Act and administrative guidance about whether older submissions remain valid.

Granularity of identity fields: The spreadsheet separates artist name into three parts, while the interactive form uses a single field. There is a risk of inconsistent identity capture, particularly for artists with non-western naming conventions, multiple pseudonyms, or mononyms. No guidance is provided about preferred name order, diacritics, or transliteration.

No express privacy or retention rules: The instrument requires collection of personal data but does not address privacy safeguards, data retention, or access rights. Those matters will be governed by other laws, but their absence in the instrument is a practical "gotcha" for those concerned with compliance with privacy obligations.

In short, the instrument sets a narrow, technical specification for form fields but leaves many implementation and interpretive details to the site operator and to the governing substantive law. Practitioners should map the Schedules to operational processes carefully to avoid mismatches.

Use the prescribed formats: To comply with the format requirement under section 28 of the Act, a person giving a notice of commercial resale should use one of the two formats the instrument names: the interactive web form at www.resaleroyalty.org.au, in the layout of Schedule 1, or the Excel spreadsheet in the format of Schedule 2 (paragraph 6(1)). Using these formats aligns the submission with the statutory formal options prescribed by the Minister.

Collect and reconcile required data fields: Ensure the required data items are collected and verified before submission. For the interactive form these include Artist Name, Pseudonym, Country, living status, Year of Birth/Year of Death (or Unknown), Title, Medium, Height and Width in centimetres, Details, an image upload, Artist Work ID, Gallery Work ID, the "Did Seller Acquire Work After 8 June 2010?" response, Sale Price inclusive of GST, Date Sold, and the attestation that information provided is correct (Schedule 1). For spreadsheet submissions ensure columns match the headings in Schedule 2, including separate name fields (Given, Middle, Family), and use the same units and inclusions such as "Sale Price (Incl GST)" and dimensions in centimetres.

Map offline records to form structure: If records are held in a different format, map them to the Schedules before submission. Note the structural difference where the spreadsheet separates artist name components while the web form uses a single Artist Name field. Ensure pseudonyms are recorded distinctly, and check that date and price formats match what the web form or spreadsheet expects, especially the inclusion of GST in the sale price field.

Verify the acquisition date threshold: The Schedules require the answer to whether the seller acquired the work after 8 June 2010. Establish and retain documentation showing the seller’s acquisition date and relevant chain-of-title evidence so the correct option can be selected (Yes, No, Primary Sale, Unknown). The instrument does not explain the legal consequences of each answer, so preserve supporting documents to address any subsequent queries or disputes.

Maintain records of submissions and attestations: Because the interactive form incorporates an attestation that the information is correct, retain an archived copy or acknowledgement of the submitted notice, including any receipt or export from the web portal, and a copy of any Excel file uploaded or lodged. The instrument does not state retention periods, so preserve records consistent with organisational document-retention policies and any applicable statutory retention obligations outside the instrument.

Coordinate with IT and website operator: If you operate a gallery, auction house, or service that will lodge notices regularly, test the web form and spreadsheet on www.resaleroyalty.org.au to confirm technical validation rules, supported file types for image upload, maximum sizes for fields, and whether the site provides confirmation of receipt. The instrument prescribes formats, but the live implementation may impose additional submission constraints that are not in the instrument; adapt internal processes accordingly.

Use the spreadsheet for batch submissions: If you manage multiple notices, use the Excel spreadsheet format, which is laid out for multiple rows of entries (Schedule 2). Ensure each row fully populates the required columns. Confirm the website’s procedure for importing the spreadsheet to make sure the column headers and order match, and that blank rows do not cause errors.

Check for consistency with the Act: This instrument prescribes format only. Before relying on the prescribed format as satisfying all legal obligations, cross-check substantive obligations, time limits and penalty provisions in the Resale Royalty Right for Visual Artists Act 2009 and the 2021 Regulations. The instrument defers substantive legal requirements to those instruments, so compliance requires satisfying both the Act and the format specification.

Plan for privacy compliance: The instrument requires collection of personal data, including names and birth years. Ensure submissions comply with applicable privacy and information-handling rules, including secure transmission, storage and access controls. The instrument does not provide privacy guidance; incorporate institutional privacy policies and applicable privacy law into submission processes.

Update forms and staff training: After the 2012 instrument is repealed (Schedule 3), revise internal templates and staff instructions to reflect the Schedules in this instrument. Train staff and external contractors on the required fields, the acquisition date question, the inclusion of GST in sale price, and the attestation requirement on the interactive form.

Seek clarification where necessary: If there is uncertainty about how a particular data item should be completed (for example the meaning of "Primary Sale" as an option, or how to handle works with composite dimensions), seek administrative guidance from the site operator or the relevant department responsible for the Act. The determination provides the structural requirement but not interpretive guidance.

By following these procedural steps and aligning record-keeping practices with the Schedules, a notice-giver aligns with the format-determination set out in this instrument, while recognising that substantive compliance with the Act and Regulations must be checked against those primary instruments.