Complaints and Disputes

Complaints Handling Procedures

This document sets out procedures whereby the Directors of Indigenous Art Code Ltd (IartC) will administer complaints and disciplinary processes involving alleged breaches of the Indigenous Art Code (the Code). The IartC Board deals with complaints in a measured way to ensure that the overriding principle of fairness to all concerned is observed.

  1. Under cl 7.1 of the Indigenous Art Code, IartC is required to deal with complaints against any Dealer Member in accordance with the Complaint Handling Procedures determined by the Board of IartC from time to time.
  2. The Board has determined that these procedures, and not the previously published Complaint Handling Procedures of 2012, shall apply to all complaints received by IartC on or after 1 April 2013.
  3. It is understood that from time to time disputes between parties may be dealt with without a formal complaint being lodged. The procedures described in this document apply when a formal complaint alleging a breach of the Indigenous Art Code has been lodged against a Dealer Member.
  4. Subject to clause 4 of these Procedures, and subject to any contrary determination by the Board of IartC which may be made at any time, the usual procedure for dealing with a complaint shall be as follows:
    1. The complaint shall be dealt with fairly and as promptly as the circumstances permit.
    2. The Board or Chair of IartC may refer a complaint to mediation prior to or during a special investigation and may give such directions as the Board or the Chair (as the case may be) deems appropriate concerning the mediation.
    3. The Board or the Chair may refer a complaint for a report of a special investigator (A special investigator shall be a barrister or solicitor who has not less than 5 years’ experience in practice as a lawyer) appointed by the Board or by the Chair.
    4. The proceedings before the special investigator shall be conducted in accordance with the directions given from time to time by the investigator.
    5. The Board shall be entitled to treat the report of the special investigator as evidence in respect of all of the findings made in it.
    6. Save where the Board is satisfied there are special or exceptional circumstances that justify a party to recontest before the Board an issue of fact, the Board shall be entitled to refuse to permit the parties to recontest before the Board any of the findings of fact made in the report of the special investigator.
    7. The Board may act upon and adopt the findings of the special investigator in respect of the complaint (The parties to the complaint shall in the usual course be the complainant and the dealer member) but only after giving the parties to the complaint an opportunity to put submissions in writing to the Board in accordance with the Board’s directions in relation to the report and any action (including imposing any sanction) the Board may take in reliance upon the report.
    8. No party to a complaint shall have an entitlement to attend a meeting of the Board in relation to a complaint.
    9. If at any time the Board determines that it is satisfied that the person making a complaint is not complying with the directions of the Board or of the Chair of IartC, or of a special investigator appointed by the Board, it may dismiss the complaint.
  5. The Board may at any time decline to accept a complaint, or terminate a complaint after it has been accepted or referred, if it is satisfied that:
    1. the conduct complained of is the subject of a proceeding in a court or is the subject of an investigation by a regulatory authority;
    2. the conduct complained of occurred long ago;
    3. the complaint is frivolous, vexatious or is not of sufficient significance to warrant its determination by IartC;
    4. it is appropriate that the complaint be resolved by other means; or
    5. for any other reason it is appropriate for IartC to decline to accept or to terminate the complaint.
  6. Subject to a determination of the Board to the contrary, the parties to a complaint shall treat all documents delivered to IartC or to a special investigator, and steps taken in relation to a complaint, as confidential and shall not, without having obtained the prior written permission of IartC, its Chair or its CEO, disclose information about those documents or steps other than for the purpose of prosecuting or defending the complaint (as the case may be).

Complaints Summary

2011 Alleged Offender Nature of allegation Outcome
NT dealer Unconscionable conduct and misrepresentation. Formal investigation by independent legal counsel. Breach of the Code established. Matter suspended for 12 months dependent on the good behaviour of the dealer.
NT dealer Misleading and deceptive conduct. Dealer falsely claimed membership of the Code. Alleged fake artworks on dealer’s website. Negotiated settlement resulting in Code membership. Matters relating to fake artworks referred to the Australian Competition and Consumer Commission leading to wider ongoing investigation.
*Qld dealer Misleading conduct. Artist complained of offensive material published on an internet site. Apology by dealer and withdrawal of offensive material.
*Qld based Indigenous employment agency Exploitation of employment contracts with artists group in Alice Springs. Revision of employment conditions for artists.
WA Aboriginal community Undue influence by community staff. Resolved by community consultation.
*Qld Aboriginal community Misleading and deceptive conduct, breach of Intellectual Property rights. Staff member engaging in unprofessional conduct. Resolved by counselling community manager and probation for relevant staff member. The staff member ceased involvement with the community.
*Singapore dealer Misleading and deceptive conduct. Dealer falsely claimed membership of the Code. Resolved by formal apology.
*Singapore dealer Misleading and deceptive conduct. Dealer falsely claimed membership of the Code. Misunderstanding resolved by explanation.
*Victorian dealer Misleading and deceptive conduct. Authorship of works falsely attributed on an internet site. Resolved by withdrawal of artwork from the website.
2012 Alleged Offender Nature of allegation Outcome
NT dealer Breach of agreement. Artist claimed low payment, unsatisfactory motor vehicle as in-kind payment. Resolved by additional payment from dealer and re-negotiation of book-up system.
*NT dealer Unconscionable conduct. Multiple serious counts of exploitation. Referred to a regulatory body for investigation.
NT dealer No reporting to artist. Artist claims limited information from dealer concerning large transaction. Dealers report provided to the artist.
*Qld dealer Multiple claims against dealer regarding unfair payment, unfair contract, misleading and deceptive conduct, threats and defamation. Referred to the Australian Competition and Consumer Commission.
SA community art centre and NT Dealer Unconscionable conduct and unfair contract. Multiple cross complaints between NT dealer and SA art centre. In progress. Independent legal counsel appointed to undertake formal investigation.
*Qld dealer No reporting to artist. Artist claims limited information from dealer concerning large transaction. Assisted artist with request to terminate relations with the dealer.
*UK dealer Failure to comply with exhibition contract. In progress with other agencies.
*SA dealer Limited reporting to artist. Artist claims incomplete information from dealer concerning licence agreements. In progress. Dealer has promised to provide a complete report.
NT community art centre Governance/management issues. Undue influence of Directors. In progress with other agencies.
*Victorian non-Indigenous artists Two separate reports of non-Indigenous artists producing artworks in the style of Indigenous art using the names of fictitious artists. Works advertised as Indigenous in public and on Ebay. Both matters referred to ACCC.
*Three non-Indigenous artists Reports received concerning three individuals separately producing artworks in the style of Indigenous art and claiming inspiration from Indigenous culture. No apparent breach of the law but offensive to Indigenous people. Report to ABC for media attention.
*Polish designer Designer copied art works by Indigenous artist for interior design in Polish hotel. In progress with other agencies.

 * Denotes not a Code signatory