Proceeds of crime

Reading Corrective Services Act 2006 (Qld) s 28A, a 'proceeds of crime' provision passed last year.

The section prohibits the sale or commercial exhibition of artworks by current prisoners in Queensland corrective institutions.

28A Restriction on prisoner dealing with prisoner's artwork

(1) While a prisoner is in a corrective services facility, the prisoner must not sell, give, give possession of, or otherwise dispose of the prisoner's artwork, unless allowed to do so under section 28B, 28C or 28D.

Maximum penalty - 40 penalty units.

(2) Subsection (1) does not prevent a prisoner abandoning or destroying the artwork.

Artworks by prisoners can be gifted, albeit only with permission from the state Department of Corrective Services.

28B Giving prisoner's artwork to a person as a gift

(1) A prisoner may -

(a) with the chief executive's written approval, give a particular item of the prisoner's artwork to a person as a gift; or

(b) donate 1 or more items of the prisoner's artwork to the State.

(2) For deciding whether to give an approval under subsection (1)(a), the chief executive must consider all of the following -

(a) the chief executive's estimated value of the artwork;

(b) the person to whom the artwork is proposed to be given;

(c) the prisoner's stated purpose for making the gift;

(d) the number of previous gifts of artwork made by the prisoner, whether or not to the same person;

(e) any other matter the chief executive considers relevant.

Historian Ross Fitzgerald quotes Neal Price, curator of the Prisoners Legal Service's 2010 Last Works art auction -

If these artists were anywhere but in prison, our state and federal arts bodies would be in an uproar about the erosion of their rights to create and exhibit, the protection of their copyright and intellectual property and their right to have full access to arts and cultural activities.

Under s 28C a prisoner may, with the chief executive's written approval, give the artwork to the State to hold on the prisoner's behalf or to a person to hold on the prisoner's behalf.

Under s 28F

Person holding prisoner's artwork for prisoner

(1) A person, other than the State, holding prisoner's artwork on behalf of a prisoner must not sell, give, give possession of, or otherwise dispose of the prisoner's artwork, unless allowed to do so under subsection (2), (3) or (4).

Maximum penalty--40 penalty units.

(2) The person may give the artwork -

(a) to the prisoner, if the prisoner is discharged or released from custody; or

(b) to someone else to hold on the prisoner's behalf, if the prisoner consents.

(3) If the person tells the prisoner that the person no longer wishes to hold the artwork on behalf of the prisoner -

(a) the person may give the artwork -

(i) to another person authorised by the prisoner to hold the artwork on the prisoner's behalf; or

(ii) to a person authorised by the prisoner to collect the artwork for delivery to another person to hold on the prisoner's behalf; or

(b) if -

(i) the prisoner has not been discharged or released from custody; and

(ii) the person has not received authority from the prisoner to deal with the artwork under paragraph (a) within 1 month after telling the prisoner the person no longer wishes to hold the artwork on behalf of the prisoner;

the person may give the artwork to the chief executive.

(4) The person may dispose of the artwork if all of the following apply -

(a) the prisoner is discharged or released from custody;

(b) the recipient makes reasonable efforts to locate the prisoner and ask the prisoner to collect, or arrange for the collection of, the artwork;

(c) the artwork is not collected by or for the prisoner within 6 months after the prisoner's discharge or release.

(5) The person must not ask for, or accept, consideration for -

(a) giving the artwork to someone else to hold on the prisoner's behalf; or

(b) giving the artwork to a person for delivery to another person to hold on the prisoner's behalf.

Maximum penalty for subsection (5) - 40 penalty units.