PROTECTION OF CULTURAL OBJECTS ON LOAN BILL 2012

i Protection of Cultural Objects on Loan Bill 2012 No. , 2012

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

Objects of this Act ............................................................................. 2

4 Simplified

outline

..............................................................................

5 Definitions

.........................................................................................

This Act binds the Crown .................................................................. 7

Extension to external Territories ........................................................ 7

Part 2--Protection

Application of this Part ...................................................................... 8

Protection from suit ......................................................................... 10

Protection from enforcement of judgements and orders .................. 11

Protection from seizure under statutory powers ............................... 12

12 Protection

from

forfeiture ................................................................ 12

Protection from heritage laws and things done under them ............. 13

14 Relationship

with other laws ............................................................ 13

Part 3--Approval of institutions

Division 1--Approval

15 Approval

..........................................................................................

16 Conditions

approval

....................................................................

Division 2--Revocation of approval

17 Revocation

approval

....................................................................

Division 3--Review of decisions

Review by the Administrative Appeals Tribunal ............................. 18

Part 4--Miscellaneous

19 Delegation

........................................................................................

Compensation for acquisition of property ....................................... 19

21 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Objects of this Act

(1) The main object of this Act is to encourage lenders to lend objects

for temporary public exhibition in Australia under arrangements

involving certain institutions.

(2) This Act seeks to achieve that object by limiting the circumstances

in which ownership or physical possession, custody or control of

the objects in Australia can be affected by:

(a) legal proceedings; or

Preliminary Part 1

Section 4

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 3

(b) the enforcement of a judgement or order of a court; or

a Territory; or

(d) the operation of such a law.

4 Simplified outline

The following is a simplified outline of this Act:

This Act deals with objects that are normally in a foreign country

but are imported into Australia on loan for temporary public

exhibition under arrangements made by certain institutions

approved by the Minister.

While the objects are in Australia, Part 2 limits the circumstances

in which lenders, exhibition facilitators, exhibiting institutions and

people working for any of them can lose ownership or physical

possession, custody or control of the objects because of:

(a)

legal proceedings in Australian or foreign courts;

(b)

the exercise of certain powers (such as powers of

seizure) under Commonwealth, State and Territory

laws; or

(c)

the operation of such laws.

Part 3 deals with the approval of institutions by the Minister, and

the end of such approval.

Part 4 deals with miscellaneous matters.

5 Definitions

In this Act:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

Part 1 Preliminary

Section 5

4 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

Australia, when used in a geographical sense, includes the external

Territories.

borrowing institution means an organisation (whether a person or

not) that:

(a) collects and publicly exhibits in Australia objects that are of

interest for archaeological, artistic, ethnological, historical,

literary, scientific or technological reasons; and

(b)

either:

(i) established by a law of the Commonwealth, a State or a

Territory, except a law prescribed by regulation for the

purposes of this subparagraph; or

(ii) prescribed by regulation as a borrowing institution.

Note:

For prescription by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

exhibiting institution for an object means the borrowing institution

that has made arrangements for the temporary public exhibition of

the object in Australia.

exhibition facilitator for an object means a person who:

(a) has a temporary loan arrangement for the object with a lender

of the object; and

(b) has a temporary loan arrangement for the object with:

(i) an exhibiting institution for the object; or

(ii) the parent of such an institution; and

object or the parent of such an institution; and

(d) carries on a business (whether or not for profit) of making

arrangements for temporary public exhibitions in Australia of

objects from collections outside Australia.

heritage law means a law of the Commonwealth, a State or a

Territory that relates to heritage, whether or not the law relates to:

(a) heritage of a particular community, such as Aboriginal or

Torres Strait Islander heritage; or

(b) heritage of a particular kind, such as:

(i) objects associated with historic shipwrecks; or

(ii) records of government; or

Preliminary Part 1

Section 5

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 5

(iii) other archival material.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

lender of an object means a person who:

(a)

is:

(i) an individual who is not ordinarily resident in Australia;

(ii) a corporation incorporated by or under the law of a

foreign country; or

(iii) a body politic of a foreign country (or part of a foreign

country); and

(b) is a party to a temporary loan arrangement (the head

arrangement) for the object with a borrowing institution, the

parent of a borrowing institution or a person who:

(i) has, or may reasonably be expected to have in future as

a result of the head arrangement, a temporary loan

arrangement for the object with a borrowing institution

or the parent of a borrowing institution; and

(ii) is not an exhibiting institution for the object or the

parent of such an institution; and

(iii) carries on a business (whether or not for profit) of

making arrangements for temporary public exhibitions

in Australia of objects from collections outside

Australia; and

custody or control of the object outside Australia for the

period of the loan under the head arrangement, apart from

that arrangement.

loan of an object includes an arrangement for:

(a) the temporary transfer of the physical possession, custody or

control of the object directly or indirectly from one person to

another person, whether or not any consideration is provided

for the transfer; and

(b) the transfer of the physical possession, custody or control of

the object directly or indirectly from the other person back to

the first person.

Part 1 Preliminary

Section 5

6 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

parent of a borrowing institution that is not a person means:

(a) if the institution is a Department of State, or part of such a

Department, of the Commonwealth, a State or a Territory--

the Commonwealth, State or Territory (as appropriate); or

(b) if the operations of the institution are a distinct part of the

operations of a body corporate--that body.

protected person for an object means:

(a) a lender of the object; or

(b) an officer, employee or agent of a lender of the object who

accompanies the object for some or all of the time it is on

loan; or

institution for the object or the parent of such an institution;

(d) a person who is:

(i) an officer, employee, agent or delegate of an exhibition

facilitator for the object; or

(ii) an officer, employee, agent or delegate of an exhibiting

institution for the object or the parent of such an

institution; or

(e) a person engaged by a lender of the object, an exhibition

facilitator for the object or an institution or parent described

in paragraph (c) to do any of the following:

(i) transport the object from one place in Australia to

another or between Australia and a foreign country;

(ii) carry out conservation work on the object in Australia;

(iii) store the object in Australia;

(iv) provide security for the object while it is being

transported between Australia and a foreign country or

while it is in Australia;

(v) provide a service that relates to the object and is

prescribed by regulation; or

(f) an officer, employee, agent or delegate of a person described

in paragraph (e).

temporary loan arrangement for an object means an arrangement

for the loan of the object for temporary public exhibition of the

Part 2 Protection

Section 8

8 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

Part 2--Protection

8 Application of this Part

(1) This Part applies to an object if:

(a) the object is imported into Australia on loan under a

temporary loan arrangement between a lender of the object

and either or both of the following:

(i) an exhibiting institution for the object or the parent of

such an institution;

(ii) an exhibition facilitator for the object who has an

arrangement with either an exhibiting institution for the

object or the parent of such an institution; and

(b) the object is imported only or mainly for the purpose of

temporary public exhibition of the object in Australia under

arrangements made by the institution; and

imported; and

(d) one or more of the following circumstances exist:

(i) the loan is in the course of trade or commerce between

Australia and a foreign country;

(ii) the lender of the object is a foreign corporation within

the meaning of paragraph 51(xx) of the Constitution;

(iii) the institution, the parent of the institution or the

exhibition facilitator is a corporation to which paragraph

51(xx) of the Constitution applies or a corporation

established by a law of the Commonwealth or a

Territory;

(iv) the parent of the institution or the exhibition facilitator

is the Commonwealth or a Territory;

(v) the public exhibition of the object is to occur, is

occurring or has occurred in a Territory;

(vi) the public exhibition of the object is to occur, is

occurring or has occurred in a place acquired by the

Commonwealth for public purposes within the meaning

of paragraph 52(i) of the Constitution;

Protection Part 2

Section 8

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 9

(vii) this Part is appropriate and adapted to giving effect to

Australia's obligations under an agreement that is

between Australia and one or more foreign countries or

international organisations and that is relevant to the

loan of the object by the lender; and

(e) the import does not contravene a law of the Commonwealth

prescribed by regulation for the purposes of this paragraph;

and

(f) the object is not a Class A object as defined in the Protection

of Movable Cultural Heritage Act 1986 when the object is

imported; and

(g) the object is not specified in a written notice that:

(i) was given by the institution or its parent to the Minister

before a time that was prescribed by regulation and was

before the object is imported; and

(ii) was in a form approved by the Minister; and

(iii) has not been withdrawn before the object is imported.

Note:

A law is to be prescribed for the purposes of paragraph (1)(e) only if it

gives effect to an international agreement: see section 21.

(2) This Part ceases to apply to the object:

(a) when one of the following events occurs:

(i) the end of 24 months starting on the day the object is

imported into Australia;

(ii) the export of the object from Australia; or

(b) if, before an event described in paragraph (a) occurs, the

Minister declares by notice published on the Department's

website that this Part ceases to apply to the object at a time

that:

(i) is worked out in accordance with the declaration; and

(ii) is at least 24 months after the day the object is imported

into Australia;

at the time worked out in accordance with the declaration.

(3) The Minister may make a declaration for the purposes of

paragraph (2)(b):

(a) only on application by the exhibiting institution; and

Part 2 Protection

Section 9

10 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

(b) only if the Minister is satisfied that exceptional

circumstances justify the making of the declaration.

(4) A declaration made under subsection (3) is not a legislative

instrument.

Certain movements of objects are not import or export

(5) For the purposes of this section, the object is neither imported into

Australia nor exported from Australia merely because the object is

moved between an external Territory and either a State or an

internal Territory (whether the movement is to or from the external

Territory, State or internal Territory).

9 Protection from suit

Actions in personam

(1) Proceedings for an action in personam relating to the object cannot

be started against a protected person for the object.

Note:

If such proceedings have been started before this Part applies to the

object, a judgement or order made in the proceedings cannot be

enforced while this Part applies to the object: see section 10.

Actions in rem

(2) Proceedings for an action in rem relating to the object cannot be

started.

Note:

If such proceedings have been started before this Part applies to the

object, a judgement or order made in the proceedings cannot be

enforced while this Part applies to the object: see section 10.

Exception for protected persons starting proceedings

(3) Subsections (1) and (2) do not prevent a person who is a protected

person for the object because of a particular paragraph of the

definition of protected person in section 5 from starting

proceedings against a person who is a protected person for the

object because of that paragraph, or a later paragraph, of that

definition.

Example: An exhibiting institution can start an action against a person it engages

to transport the object, because:

Protection Part 2

Section 10

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 11

(a) the exhibiting institution is a protected person because of

paragraph (c) of the definition of protected person; and

(b) the person engaged to transport the object is a protected person

because of paragraph (e) of that definition.

Exception for certain proceedings

(4) Subsections (1) and (2) do not apply to:

(a) proceedings under the Proceeds of Crime Act 2002; or

(b) proceedings prescribed by regulation for the purposes of this

subsection.

This section applies to starting of proceedings in any way

(5) This section applies to the starting of proceedings in a federal court

or a court of a State or Territory by claim, cross-claim or

otherwise.

10 Protection from enforcement of judgements and orders

(1) An act cannot be done in relation to the object to enforce a

judgement or order of a federal court or a court of a State, Territory

or foreign country that:

(a) is a judgement or order in personam against a protected

person for the object; or

(b) is a judgement or order in rem relating to the object.

Exception for some foreign judgements and awards

(2) Subsection (1) does not prevent an act from being done:

(a) under Part 2 of the Foreign Judgments Act 1991 to enforce a

judgement of:

(i) a superior court of a country in relation to which that

Part extends; or

(ii) an inferior court to which that Part extends; or

(b) under Part 7 of the Trans-Tasman Proceedings Act 2010 to

enforce a judgement of a court of New Zealand; or

Part 2 Protection

Section 11

12 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

Exception for judgements and orders favouring protected persons

(3) Subsection (1) does not prevent an act from being done to enforce

a judgement or order in favour of a protected person for the object,

unless:

(a) that person is a protected person for the object because of a

particular paragraph of the definition of protected person in

section 5; and

(b) the judgement or order is against a person who is a protected

person for the object because of an earlier paragraph of that

definition.

Exception for certain other judgements and orders

(4) Subsection (1) does not apply to:

(a) an order made under the Proceeds of Crime Act 2002; or

(b) a judgement or order made in proceedings prescribed by

regulation for the purposes of this subsection.

11 Protection from seizure under statutory powers

(1) The object cannot be seized under a law of the Commonwealth, a

State or a Territory.

(2) Subsection (1) does not prevent seizure under:

(a) Part IAA of the Crimes Act 1914; or

(b) Part 3-5 of the Proceeds of Crime Act 2002; or

a police officer (however described) a power of seizure and

does not give that power to anyone other than a police

officer; or

(d) a law of the Commonwealth, a State or a Territory prescribed

by regulation for the purposes of this subsection.

12 Protection from forfeiture

(1) The object cannot be forfeited because of a law of the

Commonwealth, a State or a Territory.

Protection Part 2

Section 13

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 13

(2) Subsection (1) does not prevent forfeiture (or the possibility of

forfeiture) because of:

(a) Part IAA of the Crimes Act 1914; or

(b) Part 2-2 or 2-3 of the Proceeds of Crime Act 2002; or

by regulation for the purposes of this subsection.

13 Protection from heritage laws and things done under them

(1) Nothing in, or done under, a heritage law prohibits or restricts,

conditionally or unconditionally, a protected person for the object

doing anything in relation to the object for the purpose of:

(a) giving effect to a temporary loan arrangement for the object

(whether or not the person is party to the arrangement); or

(b) meeting the person's obligations to another protected person

who is party to a temporary loan arrangement for the object.

(2) Nothing in, or done under, a heritage law affects:

(a) ownership of the object; or

(b) physical possession, custody or control of the object by a

protected person; or

or control of the object.

Exception for prescribed heritage laws

(3) This section does not apply to a heritage law prescribed by

regulation for the purposes of this subsection.

Relationship of this section with the rest of this Part

(4) This section does not limit any other section of this Part, and is not

limited by any other section of this Part.

14 Relationship with other laws

This Part has effect despite:

(a) any other law of the Commonwealth (whether made before or

after the commencement of this section); and

Approval of institutions Part 3

Approval Division 1

Section 15

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 15

Part 3--Approval of institutions

Division 1--Approval

15 Approval

(1) On application by or on behalf of a borrowing institution, the

Minister may approve the institution, for a specified period not

more than 60 months, by notice given to the institution and

published on the Department's website.

Considerations in deciding whether to approve

(2) In deciding whether to approve a borrowing institution, the

Minister must consider:

(a) the institution's curatorial expertise and expertise in

management of collections; and

(b) the procedures used by the institution to identify the

provenance of objects collected or exhibited by the

institution; and

foreign country that could be the subject of temporary loan

arrangements for exhibition under arrangements made by the

institution; and

(d) the procedures used by the institution or by its parent for

negotiating temporary loan arrangements for objects that are

normally in a foreign country (whether those arrangements

are with lenders or exhibition facilitators); and

(e) whether the institution often publicly exhibits in Australia

objects that are normally in a foreign country; and

(f) the matters (if any) prescribed by regulation for the purposes

of this paragraph.

This does not limit the matters the Minister may consider.

Approval is not a legislative instrument

(3) A notice under subsection (1) is not a legislative instrument.

Approval of institutions Part 3

Revocation of approval Division 2

Section 17

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 17

Division 2--Revocation of approval

17 Revocation of approval

(1) The Minister may revoke an approval of a borrowing institution by

notice given to the institution and published on the Department's

website if the Minister is satisfied:

(a) that there has been:

(i) a contravention of a regulation involving the institution;

(ii) a contravention of any conditions on the approval; or

(b) that the approval should be revoked, having regard to the

matters described in paragraphs 15(2)(a), (b), (c), (d), (e) and

(f) and any other relevant matters.

(2) A notice under subsection (1) is not a legislative instrument.

Part 3 Approval of institutions

Division 3 Review of decisions

Section 18

18 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

Division 3--Review of decisions

18 Review by the Administrative Appeals Tribunal

Applications may be made to the Administrative Appeals Tribunal

for decisions of the Minister:

(a) to refuse to approve a borrowing institution under section 15;

(b) to impose or vary under section 16 a condition on the

approval of a borrowing institution; or

institution.

Miscellaneous Part 4

Section 19

Protection of Cultural Objects on Loan Bill 2012 No. , 2012 19

Part 4--Miscellaneous

19 Delegation

The Minister may, by writing, delegate all or any of his or her

functions and powers under this Act, except section 21, to an SES

employee or acting SES employee in the Department.

Note: The

expressions

SES employee and acting SES employee are defined

in section 2B of the Acts Interpretation Act 1901.

20 Compensation for acquisition of property

(1) If the operation of this Act would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may start proceedings in a court of

competent jurisdiction for the recovery from the Commonwealth of

such reasonable amount of compensation as the court determines.

21 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) Before the Governor-General makes a regulation prescribing a law

of the Commonwealth for the purposes of paragraph 8(1)(e), the

Minister must be satisfied that the law to be prescribed gives effect

to an agreement between Australia and one or more foreign

countries or international organisations.

(3) A regulation may make provision relating to:

(a) the consultation by borrowing institutions, or their parents, of

members of communities, or organisations representing

them, about proposed loans of objects relating to those

Part 4 Miscellaneous

Section 21

20 Protection of Cultural Objects on Loan Bill 2012 No. , 2012

communities to the institutions or parents by lenders or

exhibition facilitators; and

(b) the consultation by borrowing institutions, or their parents, of

persons or bodies responsible for archives of States or

Territories about proposed loans of objects relevant to those

archives to the institutions or parents by lenders or exhibition

facilitators; and

their parents about objects proposed to be lent to them by

lenders or exhibition facilitators; and

(d) the action to be taken by a borrowing institution, or a parent

of a borrowing institution, if it becomes aware of an act or

event:

(i) that relates to an object to which Part 2 applies in

connection with the institution; and

(ii) that the institution or parent believes may be or lead to a

contravention of Part 2; and

(e) the giving to the Minister of reports on activities of

borrowing institutions relevant to the operation of this Act or

a regulation in a financial year by the next 31 October after

the financial year; and

(f) the giving to the Minister of other reports relevant to the

operation of this Act or a regulation.

This does not limit subsection (1).

Commonwealth of Australia Bills

PROTECTION OF CULTURAL OBJECTS ON LOAN BILL 2012