There is also an inexplicable discrepancy between the breadth of export controls applied to Australian indigenous and non-indigenous painting. Export controls on non-indigenous Australian paintings (photographs, sculpture and works on paper are governed by separate guidelines) only apply to artworks at least 30 years or older with a market value of more than $250,000. This sounds more reasonable. Why, then, is the law not the same for both?
Then there is the length of time it takes for the export permit process. This is a real disincentive to international collectors of Aboriginal art. According to Sotheby's Tim Klingender, it is "not unusual" for the export permit process to take "a year or year-and-a-half" to complete.
Meanwhile, the artwork typically sits in storage at the auction house, bought and paid for but unable to be delivered. (The Tommy Lowry recently received a temporary export permit for exhibition in the US in 2009 and is being reframed prior to shipment.) If the export permit is denied, the buyer is stuck having bought a work they can't take out of Australia.
Nobody likes the idea of foreigners buying up our precious heritage. I know I don't like it. That is why we have the law. But the legislation as it stands today is so sweeping in its scope that overseas museums and private collectors are effectively prevented from acquiring any important Aboriginal art. We are damaging, in the process, years of efforts by art centres, dealers, auction houses, museums and the Australia Council to promote Aboriginal art internationally.
We are also short-changing artists, as foreign money increasingly heads elsewhere in the international art market. This has a real impact. Having visited dozens of Aboriginal art communities over the years, I know all too well how poor most artists are. I also know art making is often their only independent source of income. Artists do not benefit directly from record auction prices for their works when they are sold by private collectors, but it can often enable them to charge equivalent sums for new works. This means more money in their pockets.
Big secondary market prices also give people confidence in buying the very best - and expensive - contemporary Aboriginal art, so it has other benefits as well. Think about this for a minute: if one said that contemporary Chinese art could not leave China, or that Damien Hirst's many and varied artworks could not leave Britain, or that Jeff Koons' sculptures could not leave the US, do you think that the value of these works of art would have risen so significantly?
I am not advocating scrapping Australia's cultural heritage laws. What I am advocating are export controls that balance the desire to protect our nation's cultural heritage, the rights of owners, and the promotion of a buoyant international market for Aboriginal art. But, most importantly, I am arguing for laws that recognise that if cultural property has a value beyond a particular country that gives it significance, then it is also worth sharing.
Benjamin Genocchio, a former art critic for The Australian, lives in New York where he writes for The New York Times.
Here is the original article featured in The Age