Wednesday, October 12, 2016

A strange case- the banned export of Herbert Badham's 1944 painting Snack Bar

It seems that I first wrote on the art of Herbert Badham back on 5 March 2008:  Australian History and the art of Herbert Badham. Over eight years' ago! That was a different world.

There was a gap of over five years before I returned to the man as part of A morning at NERAM - Flora, Cobcroft and Badham's Observing the Everyday (26 November 2013). Next day I ran a second post, A note on Herbert Badham, providing more information on Badham since the sources on him were so few. They still are.

On 7 July 2014 I used a Badham painting to illustrate a Monday Forum post, Monday Morning Forum – another open forum. There matters rested. It wasn't that I had lost interest in the man, I still looked out for his paintings in my irregular gallery visits, but there had been nothing new to spark my interest.

Then back in September came news that the export of a Badham painting, a 1944 piece called Snack Bar, had been blocked from export because of its national significance. The new owner appealed, but the appeal was rejected by the appeal tribunal. Now I quote from the newspaper report:.
In its judgement, the tribunal found that the painting showed a critical stage in Australia's history - during wartime and its development as a multicultural nation. 
"The subject matter, which graphically records the interaction of different races, associating in congenial circumstances at a time of great danger for Australia is deeply impressive," it said.. 
I thought that this was plain daft. The painting is quite interesting, but to describe it in those terms strikes me as an a-historical misrepresentation. .

Postscript

marcellous kindly posted me a link to the appeal decision. I think that it's still daft.Explaining my reasons will have to wait.  .


Postscript 2

In comments, Winton suggested that the Badham painting had no comparison with this one. Perhaps not, but this is arguably Manet's most famous painting, his last major work.

DG suggested "Fine piece of genre art, reminiscent of Norman Rockwell". I hadn't thought of the Rocwell comparison, but could see the point.

marcellous looked at some of the legal issues.
@kvd: I doubt if it is appealable; probably need to show an error of law. Here any "error" is a difference in opinion about the cultural value of the picture and whether it should be allowed to leave our shores. 
"appears" is a kind of tribunial circomlocution for it probably is and nobody disputes it - after all the applicant could always have brought the picture to court if it wanted the tribunal to view the original. So unlikely to be a source of legal error there. 
@2 tanners: issue is not whether present owner will make the painting available, but whether subsequent owners for all time will do so. Legislation is aimed at the long view and in acknowledgement that countries can't do much once an object departs their shores. Once the purchaser paid that much he was always facing a risk because it is the value [for which price is the only real proxy] which indicates the cultural significance.
marecellous went on to clarify value: "I should clarify my comment about the price being a proxy for value: it is a presumptive proxy which enlivens the requirement for a permit".

This, by the way, is a very different Badham

2 tanners responded to marcellous on the appeal point::
I imagine the decision could be appealed on the basis of the fact that the Commission couldn't distinguish between significant and important, or just possibly that the commission dismissed evidence on a painting that it had at no stage seen, preferring evidence from other parties one of whom had initially argued for there to be no ban. 
I doubt that the very last point would hold, But, on the surface, the first might be possible. But then it leaves open another question, why are we "protecting" these things in the first place? .

 .

15 comments:

marcellous said...

The tribunal's decision is Drew and Minister for Communications and the Arts [2016] AATA 601 (15 August 2016)

Anonymous said...

dot67 from marcellous' kind link:

We have not had the opportunity of viewing Snack Bar ourselves, but we have had the benefit of what appears to be a faithful photocopy.

For some reason, the wording tickles me; be interested in m's opinion as to the likelihood of success on further appeal - assuming such is available?

kvd

(how can you state something "appears to be faithful" if you've never actually viewed the original? Maybe should have been "is said to be a faithful" or "is accepted..."?)


2 tanners said...

Madness. Someone pays half a million dollars for a painting of nothing in particular by a person most people have never heard of AND promises to make it available to Australia for exhibition, whereas previous exhibitions of his work have been cancelled due to lack of interest. I'd feel that equity would at least involve offering the owner a refund, should he so desire.

Jim Belshaw said...

marcellous, that link was very interesting.I still say its daft and indeed worth a proper analysis.

Now on exhibitions, my great interest in Badham was really sparked by an exhibition at the New England Regional Art Museum, OBSERVING THE EVERYDAY. This was quite a major exhibition - http://www.neram.com.au/portfolio-items/herbert-badham/. I really like him, though not this particular painting.

There is a whole story here, I think. Personally, I'm in the odd position of really liking Badham, thinking of him as significant, buts still thinking of the decision as daft

marcellous said...

I commented a second time before but it didn't get through.

@kvd: I doubt if it is appealable; probably need to show an error of law. Here any "error" is a difference in opinion about the cultural value of the picture and whether it should be allowed to leave our shores.

"appears" is a kind of tribunial circomlocution for it probably is and nobody disputes it - after all the applicant could always have brought the picture to court if it wanted the tribunal to view the original. So unlikely to be a source of legal error there.

@2 tanners: issue is not whether present owner will make the painting available, but whether subsequent owners for all time will do so. Legislation is aimed at the long view and in acknowledgement that countries can't do much once an object departs their shores. Once the purchaser paid that much he was always facing a risk because it is the value [for which price is the only real proxy] which indicates the cultural significance.

marcellous said...

I should clarify my comment about the price being a proxy for value: it is a presumptive proxy which enlivens the requirement for a permit.

Anonymous said...

Thanks for follow up marcellous. kvd

2 tanners said...

@marcellous

I take the point about future use, however the tribunal has very much reduced the value to the buyer. If we are going to have decisions like this, let them be in advance of the painting be sold (like a clearance for overseas parties to bid on an item) or make it possible for compensation or indeed reneging on the whole bid.

I imagine the decision could be appealed on the basis of the fact that the Commission couldn't distinguish between significant and important, or just possibly that the commission dismissed evidence on a painting that it had at no stage seen, preferring evidence from other parties one of whom had initially argued for there to be no ban.

Finally, if you can make such a determination on the basis of a photocopy, why isn't leaving a photocopy onshore or online good enough?

Winton Bates said...

Not quite up to this standard:
http://www.getty.edu/art/exhibitions/manet_bar/images/bar_detail_zm.jpg

Anonymous said...

Fine piece of genre art, reminiscent of Norman Rockwell.

DG

marcellous said...

@2t

We don't know if the experts only looked at a "photocopy" - that presumably depends on whether the owner was prepared to make it available for them to inspect or instead content to allow the experts to assess it on the basis of a reproduction.

I haven't checked but I would have thought that the vendors could have made an application for a permit themselves but didn't. I would be surprised if the purchaser was unaware of the requirement for a permit.

Jim Belshaw said...

That's cruel, but true, Winton! DG, I hadn't thought of the Rockwell comparison. You are right, I think!

arcellous, the buyer may have been unaware, but it does seem unlikely I admit. I agree with you, I think, about clearance in advance. And the appeal ground is interesting. Will bring some of this up in the main post.

Jim Belshaw said...

On the clearance in advance, that was 2 tanners, not marcellous. My apologies

Anonymous said...

Anyway, I think his name is Herbert. kvd

Jim Belshaw said...

Bloody hell, kvd. Correction made. I just couldn't see the error!