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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PROTECTION OF CULTURAL OBJECTS ON LOAN BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Regional Australia, Regional Development,
Local Government, the Minister for the Arts, the Honourable Simon Crean MP)
PROTECTION OF CULTURAL OBJECTS ON LOAN BILL 2012
OUTLINE
The Protection of Cultural Objects on Loan Bill 2012 (the Bill) provides for the
establishment of a scheme to provide protection for cultural objects on loan. While the
objects are in Australia the legislation limits the circumstances in which lenders,
exhibition facilitators, exhibiting institutions and people working for them can lose
ownership, physical possession, custody or control of the objects because of:
· legal proceedings in Australian or foreign courts;
· the exercise of certain powers (such as powers of seizure) under Commonwealth,
State and Territory laws; or
· the operation of such laws.
This scheme will operate as an approval based scheme. Objects normally in a foreign
country, will be protected if they are imported into Australia on loan for temporary public
exhibition under arrangements involving institutions approved by the Minister. Certain
institutions will be able to apply to the Minister for approval and the Minister may
approve the institution for a specified period of not more than 60 months. Objects of any
description will be protected from the time of their importation into Australia to their
export, to a maximum of two years. Objects on loan for a period of longer than two years
will not be protected unless exceptional circumstances exist.
The legislation addresses a significant obstacle that Australia's major cultural institutions
(such as museums, galleries and libraries) face in securing the loan of foreign objects and
aligns Australia with an emerging international standard to provide protection for cultural
objects on loan. Under existing Commonwealth legislation, protection for objects on
loan only applies in specific and limited circumstances under the Protection of Movable
Cultural Heritage Act 1986. The absence of more comprehensive legislation has made it
increasingly difficult for those institutions to secure foreign loans.
Loans of cultural objects, such as paintings, prints, sculptures, textiles and manuscripts,
are essential for Australia's major museums and galleries to consistently deliver
first-class exhibition programs. They are also a key way in which institutions can
provide Australians with access to a comprehensive range of objects that may not be
represented in Australian collections. This is particularly the case for major international
works of art which have increased significantly in value. Those works can be
underrepresented in Australia's public collections as they rarely come on the international
art market and when they do they can be prohibitively expensive such that Australian
institutions may not be able to compete for their purchase.
Exhibitions involving international loans play an important role in the life of Australia's
collecting institutions and they are a popular drawcard with the public. The inability to
secure loans of foreign cultural objects limits the academic, educational and economic
potential of exhibitions and puts at risk the substantial cultural, social and economic
benefits that major international exhibitions deliver.
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The scheme established by this Bill will address the current barriers that are inhibiting
foreign lenders from agreeing to loans by providing a level of protection that would have
the effect of encouraging foreign lenders to loan objects to Australia's major collecting
institutions for temporary public exhibition.
Financial impact statement
The Protection of Cultural Objects on Loan Bill 2012 is not expected to have an impact
on Commonwealth expenditure.
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Statement of Compatibility with Human Rights
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Bill establishes a scheme to provide protection for cultural objects on loan. While
the objects are in Australia the legislation limits the circumstances in which lenders,
exhibition facilitators, exhibiting institutions and people working for them can lose
ownership, physical possession, custody or control of the objects because of:
· legal proceedings in Australian or foreign courts;
· the exercise of certain powers (such as powers of seizure) under Commonwealth,
State and Territory laws; or
· the operation of such laws.
The Bill pursues the objective of enhancing cultural life in Australia and promoting the
right to enjoy and benefit from culture by increasing access to objects brought into
Australia under loan arrangements for temporary public exhibition.
Human rights implications
The Bill engages the following human rights:
Right to enjoy and benefit from culture
The Bill engages the right to enjoy and benefit from culture, including the right to take
part in cultural life.
Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises the right of everyone to take part in cultural life. Article 15(2)
states that the steps to be taken by parties to the ICESCR to achieve the full realisation of
the right shall include those necessary for the conservation, the development and the
diffusion of science and culture. Article 15(4) states that parties to the ICESCR
recognise the benefits to be derived from the encouragement and development of
international contacts and co-operation in the scientific and cultural fields.
To the extent that the right to enjoy and benefit from culture is engaged, this right is
promoted by the Bill. The Bill will enhance cultural life in Australia by addressing a
significant obstacle Australia's major museums and galleries face in securing the loan of
foreign cultural objects.
To that end, the scheme established by the Bill overcomes the limitation in existing
Commonwealth legislation which provides protection for objects on loan from overseas
only in specific and limited circumstances. The absence of more comprehensive
3
legislation has made it increasingly difficult for institutions to secure loans as they are not
able to provide assurances to lenders that objects will be returned at the end of the loan
period.
The Bill supports cultural exchange and international co-operation. Loans of cultural
objects, such as artworks and artefacts, are an important element of cultural diplomacy
and can strengthen bilateral and multilateral relations. They are also an important way
for cultural institutions to provide Australians with access to a comprehensive range of
cultural objects that are not represented in Australian collections.
Right to an effective remedy
The Bill engages the right to an effective legal remedy.
Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) imposes
an obligation on countries to provide effective remedies for the victims of human rights
violations. Article 6 of the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) imposes an obligation on countries to provide everyone
in their jurisdiction with effective protection and remedies against any acts of racial
discrimination which violate human rights as well as the right to seek just and adequate
reparation or satisfaction for any damage suffered as a result of such discrimination.
The Bill pursues the legitimate objective of encouraging the loan of objects from
overseas for temporary public exhibition in Australia. To the extent that the Bill limits
the right to an effective legal remedy, those limitations are reasonable, necessary and
proportionate and the limitations are not arbitrary.
The Bill provides a temporary limitation on the right of a person to commence action
through the Australian legal system, or to enforce a judgement or order of a federal court
or a court of a State, Territory or foreign country, while an object which is protected
under Part 2 of the Bill is in Australia's jurisdiction. This could potentially include
persons or groups who may consider they have experienced a loss of cultural property as
a result of human rights violations in the past. Circumstances where that may have
occurred could include if cultural objects were removed during civil war, conflict or were
compulsorily acquired by the state.
This limitation will not apply to significant Australian cultural heritage material defined
as Class A objects under the Protection of Movable Cultural Heritage Act 1986 (PMCH
Act). The exclusion of Class A objects from the application of the legislation recognises
that Aboriginal and Torres Strait Islander cultural material in that category is particularly
sensitive and culturally important. Material in that category includes human remains,
bark and log coffins, secret sacred ritual material, rock art and dendroglyphs (carved
trees).
The degree of limitation on other objects is considered proportionate to the objective of
the Bill as the limitation on the ability to take action while the object is in Australia is
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necessary to achieve the stated objective of enhancing access to cultural objects. The
limitation on the ability to take action through the Australian legal system, for the limited
period of the loan, has been balanced against the public interest of the significant social,
economic and cultural benefits that can be delivered as a result of Australian institutions
being able to secure loans.
Additionally, to balance these measures, the Bill includes provisions enabling regulations
to be made in relation to borrowing institutions consulting with persons or groups who
may have an interest in proposed loans as well as requirements to publish certain
information on proposed loans prior to their importation into Australia (clause 21 refers).
Paragraph 21(3)(a) provides that regulations may be made for the purposes of requiring
consultation by borrowing institutions with members of communities, or organisations
representing them, about proposed loans of objects relating to those communities. This is
relevant to proposed loans of objects that may be of particular interest to certain persons
or groups within the community, including persons or groups who may consider they
have experienced a loss of cultural property as a result of human rights violations in the
past. Requiring consultation prior to importation provides a mechanism for the
identification of any issues in relation to a proposed loan as well as opportunities for
members of communities to raise any concerns about the proposed loan.
This provision will also enable specific consultation requirements to be developed in
relation to proposed loans of Aboriginal and Torres Strait Islander objects. Those
requirements will provide opportunities for Indigenous people who may have an interest
in objects proposed for loan to learn about and be actively engaged in discussions on
proposed loans prior to their importation into Australia.
In addition, paragraph 21(3)(c) provides that regulations may be made requiring
borrowing institutions to publish information about objects proposed to be lent to them.
The publication of information about an object that will be protected under Part 2 of the
Bill, prior to its importation into Australia, will enable any person to raise questions about
the object's history and ownership. This is an important transparency mechanism and
provides information to assist persons who may be victims of human rights violations to
locate objects they believe were stolen, looted or otherwise unlawfully taken.
The Bill does not affect the right to bring a claim in the jurisdiction where the object is
usually kept.
The Bill does not affect the ability of persons or groups to make claims in relation to
objects which are already in collections in Australia as the Bill does not apply to those
objects.
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Right to self-determination
The Bill engages the right to self-determination, particularly the right to pursue cultural
development.
Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Article
1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
recognise a person's right to self-determination and by virtue of that right their freedom
to pursue their economic, social and cultural development.
As stated in the section on the right to an effective remedy, the Bill provides a temporary
limitation on the right of a person to commence action through the Australian legal
system (clause 9), or to enforce a judgement or order of a federal court or a court of a
State, Territory or foreign country (clause 10), while an object protected under Part 2 of
the Bill is in Australia's jurisdiction.
In recognition that some Aboriginal and Torres Strait Islander material is particularly
sensitive and culturally important, the Bill will not apply to significant Australian
heritage objects that are identified as Class A objects under the PMCH Act. Aboriginal
and Torres Strait Islander material in that category includes human remains, bark and log
coffins, secret sacred ritual material, rock art and dendroglyphs.
The inclusion of other Aboriginal and Torres Strait Islander objects in this Bill has been
made to encourage foreign lenders who hold such objects in their collections to consider
lending those objects to Australian institutions for temporary public exhibition. This will
increase awareness of those objects in foreign collections and provide an opportunity for
members of Aboriginal and Torres Strait Islander communities to see and connect with
objects from their cultural heritage that may not otherwise be loaned to Australian
institutions. If Aboriginal and Torres Strait Islander objects were excluded from the Bill,
lenders may not consent to loan those objects to Australian institutions and their presence
in foreign collections may remain unknown.
The Bill also includes provisions enabling regulations to be made requiring borrowing
institutions to consult with groups who may have an interest in proposed loans as well as
requiring that borrowing institutions publish certain information on proposed loans prior
to their importation into Australia (clause 21 refers). That will enable specific
consultation requirements to be developed in relation to proposed loans of Aboriginal and
Torres Strait Islander objects. These safeguards provide an opportunity for persons and
groups who may have an interest in an object which is the subject of a proposed loan to
raise concerns about its history and ownership prior to a decision being made on the
importation of the object. The publication provisions are an important transparency
mechanism and provide information to assist persons who may be trying to locate objects
they believe may have been stolen, looted or otherwise unlawfully taken.
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Right to a fair hearing
The Bill engages the right to a fair hearing, particularly the right to a fair and public
hearing before a competent court. Article 14(1) of the International Covenant on Civil
and Political Rights (ICCPR) provides that all persons shall be equal before the courts
and tribunals and that in the determination of any criminal or civil proceedings that
everyone shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law.
The Bill provides a temporary limitation on the right of a person to commence legal
proceedings through the Australian legal system (clause 9), or to enforce a judgement or
order of a federal court or a court of a State, Territory or foreign country (clause 10),
while an object which is protected under Part 2 of the Bill is in Australia's jurisdiction.
Some persons may consider that the Bill affects their right to a fair hearing because it will
limit their ability to commence proceedings or enforce judgements relating to objects
protected under Part 2 of the Bill while they are in Australia.
To the extent the Bill limits the right to a fair hearing, particularly the right to real and
effective access to a court for civil claims, that limitation is reasonable, necessary and
proportionate. The Bill merely limits court action and the enforcement of judgements or
orders while an object is in Australia and does not prevent claims from being started or
action being taken to enforce judgements once the object is exported out of Australia.
The protection provided by the legislation in this respect is only temporary.
Other than the limited exceptions for some protected persons for an object (subclauses
9(3) and 10(3)), the Bill does not discriminate against particular groups of people in
limiting the commencement of legal proceedings or the enforcement of judgements and
applies equally to all persons within Australia. In addition, the clauses in the Bill which
provide protection from suit and protection from enforcement of judgements (namely,
clauses 9 and 10) are not designed to alter the jurisdiction of Australia's courts. The
relevant clauses are not addressed to the courts themselves and do not detract from the
power of courts to control their own processes nor does the Bill seek to change the
character or constitution of the courts or their nature as judicial organs. The limitation
on the ability to take action through the Australian legal system for the limited period of
the loan, has been balanced against the public interest of the significant social, economic
and cultural benefits that can be delivered as a result of Australian institutions being able
to secure loans.
Conclusion
This Bill promotes the right to enjoy and benefit from culture by increasing access to
objects brought into Australia under a loan arrangement for temporary public exhibition.
The Bill is compatible with human rights because it advances the protection of human
rights and to the extent that it may also limit human rights, those limitations are
reasonable, necessary and proportionate.
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NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short title
The Bill, when enacted, should be cited as the Protection of Cultural Objects on Loan Act
2012.
Clause 2 - Commencement
This clause provides for the commencement of the Bill.
· Item 1 of the table in subclause 2(1) provides that clause 1 (Short title) and clause
2 (Commencement) and any other clause of the Bill not provided for are to
commence on Royal Assent.
· Item 2 of the table provides that clauses 3 to 21 (the remaining clauses of the Bill)
are to commence on a single day to be fixed by Proclamation. If the provisions
do not commence within the period of 6 months beginning on the day the Bill
receives the Royal Assent, they commence on the day after the end of that period.
Clause 3 - Objects of this Act
This clause sets out the main purpose of the Bill, which is to encourage lenders to loan
objects for temporary public exhibition in Australia. Such loans are to be made under
arrangements involving certain institutions.
The Bill achieves its objective by limiting the circumstances in which ownership or
physical possession, custody or control of the objects can be affected while they are in
Australia.
Clause 4 - Simplified outline
This clause provides a simplified outline of the Bill. It has been included to aid
understanding of the relevant clauses. It explains that the Bill deals with objects that are
normally in a foreign country but which are imported into Australia under a loan
arrangement for temporary public exhibition. The object must be imported under
arrangements made by an institution that has been approved by the Minister.
Part 2 limits the circumstances in which specified persons involved in a loan can lose
ownership or physical possession, custody or control of the objects.
Part 3 deals with the approval (and the end of such approval) of institutions by the
Minister.
Part 4 deals with miscellaneous matters.
Clause 5 - Definitions
Clause 5 sets out definitions of key terms used in the Bill. Some of the more significant
definitions are:
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· "borrowing institution" is an organisation in Australia that collects and publicly
exhibits objects that are of interest for archaeological, artistic, ethnological, historical,
literary, scientific or technological reasons. It must also be either established by a law
of the Commonwealth, a State or a Territory (except for those laws prescribed in the
regulations) or be prescribed in the regulations. A borrowing institution could
include, but is not limited to, a Commonwealth, State or Territory art gallery,
museum, library or archive and it may be a legal person or not.
· "exhibiting institution" is a borrowing institution that has made arrangements for the
temporary public exhibition of an object in Australia. This term is used to explain a
borrowing institution's relationship with an object.
· "exhibition facilitator" for an object is a person who has a temporary loan
arrangement for the object with a lender of the object and also has a temporary loan
arrangement for the object with an exhibiting institution for the object or the parent of
such an institution. An exhibition facilitator is not a lender of the object, an exhibiting
institution for the object or the parent of such an institution. An exhibition facilitator
is a person who carries on a business (whether or not for profit) of making
arrangements for temporary public exhibition in Australia of objects from collections
outside of Australia. Exhibition facilitator has been defined because institutions do
not always make the arrangements for all the temporary public exhibitions that they
hold. From time to time an institution may be involved in a loan arrangement that has
been organised by another party; an exhibition facilitator.
· "lender" of an object is either an individual not ordinarily resident in Australia; a
corporation incorporated by or under a law of a foreign country; or a body politic of a
foreign country (or part of a foreign country). The term has been defined in this
manner as the Bill only applies to objects that are normally in a foreign country. The
definition makes it clear that a lender must be a party to the temporary loan
arrangement through which the object will be imported into Australia and it sets out
the other parties that must be subject to the temporary loan arrangement. The
definition also makes it clear that the lender of an object would reasonably be
expected to have physical possession, custody or control of the object outside of
Australia for the period of the loan. A lender could include but is not limited to an
individual not ordinarily resident in Australia, a national gallery or museum in a
foreign country or a foreign corporation.
· "parent" is a term that is specific to a borrowing institution that is not a person. It
means, 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 if the operations of the institution are a distinct part of the operations
of a body corporate - that body. For example, if a Commonwealth borrowing
institution is not a separate legal entity but part of a Department of State then the
Commonwealth would be its parent. An example in relation to a body corporate
would be if there was an institution that operated as a separately branded art gallery
within a larger body corporate, the parent of the gallery would be the body corporate.
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· "protected person" for an object is a person who is involved in the loan of the object
or is engaged to do certain things in relation to an object while it is in Australia. The
term has been defined to include:
o the lender of the object or 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
o an exhibition facilitator for the object or an exhibiting institution for the
object or the parent of such an institution or an officer, employee, agent or
delegate of such an institution or the parent of such an institution, or
o a person (or an officer, employee, agent or delegate of the person) engaged
by a lender of the object, an exhibition facilitator for the object or an
exhibiting institution for the object or the parent of such an institution to
do certain things as specified in that definition.
Clause 6 - This Act binds the Crown
Clause 6 explains that the Act binds the Crown in each of its capacities. That is, it binds
the Crown in right of the Commonwealth, of each of the States, of the Australian Capital
Territory, of the Northern Territory and of Norfolk Island.
Clause 7 - Extension to external Territories
Clause 7 makes it clear that the operation of the Bill will extend to every external
territory of Australia. As the Bill does not extend beyond Australia's external territories,
it will not prevent action being taken outside Australian territory, such as under the law of
the state where the object on loan is usually located or under the law of a third state while
the cultural object is in transit to or from Australia.
Part 2 - Protection
Clause 8 - Application of this Part
Clause 8 deals with the circumstances when Part 2, which relates to protection, will apply
to an object and when that protection will cease.
Subclause 8(1)
Subclause 8(1) sets out the circumstances that must be met for protection to apply.
Paragraph 8(1)(a)
Paragraph 8(1)(a) provides that Part 2 will only apply to an object that is imported into
Australia on loan under a temporary loan arrangement between a lender and either or
both an:
· exhibiting institution or its parent (sub-paragraph 8(1)(a)(i));
· exhibition facilitator that has an arrangement for the object with an exhibiting
institution or their parent (sub-paragraph 8(1)(a)(ii)).
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Part 2 will apply if an object is imported into Australia for temporary public exhibition
involving a single exhibiting institution as well as if it is imported for a temporary public
exhibition involving multiple exhibiting institutions.
Examples of some of the temporary loan arrangements captured by this paragraph are set
out below.
· The object is imported under a temporary loan arrangement between the lender
and an exhibiting institution for temporary public exhibition. The object then
moves to another venue for temporary public exhibition as part of that same loan
arrangement.
· The object is imported under a temporary loan arrangement between the lender
and an exhibiting institution for temporary public exhibition. The object then
moves to another exhibiting institution for temporary public exhibition under a
separate temporary loan arrangement between the lender and the second
exhibiting institution. For the second exhibition, the objects would already have
been imported into Australia and would merely be moved from the first exhibiting
institution to the second exhibiting institution.
· The object is imported under a temporary loan arrangement involving the lender,
an exhibition facilitator and an exhibiting institution. The object then moves to
another exhibiting institution for temporary public exhibition under a separate
temporary loan arrangement between the lender, an exhibition facilitator and a
second exhibiting institution. This situation could also occur where there are two
parts to the temporary loan arrangements, for example, if there is a temporary
loan arrangement between the lender and exhibition facilitator and then another
temporary loan arrangement between the exhibition facilitator and exhibiting
institution. For the second exhibiting institution the objects would already have
been imported into Australia and would merely be moved from the first exhibiting
institution to the second one.
The effect of paragraph 8(1)(a) is to limit the application of Part 2 of the Bill to objects
that normally reside in a foreign country and that are part of a temporary loan
arrangement. Providing protection to objects that are normally in foreign countries
responds to the obstacle that Australia's major collecting institutions have faced in
securing loans of foreign objects. Loans of those objects for temporary public exhibition
are essential to the ability of Australia's major institutions to provide access to a broad
range of cultural objects and to deliver their exhibition programs. This impact is most
significant on the ability of Australia's institutions to deliver major international
exhibitions, which in turn deliver significant social, economic and cultural benefits to the
local economies and communities where the institutions are located.
The effect of sub-paragraph 8(1)(a)(ii) is that objects which are part of an exhibition
organised by an exhibition facilitator for the object will also be covered by Part 2 of the
Bill where the exhibition facilitator has an arrangement with either an exhibiting
institution or the parent of such an institution. This provision has been included in
recognition of the fact that institutions do not necessarily directly organise all of the
exhibitions that they host. From time to time, an institution may host an exhibition that
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has been organised by an exhibition facilitator. In that circumstance, the loan
arrangements can vary. For example, there may be a loan agreement between the lender
and the exhibition facilitator and the exhibition facilitator may then have another separate
agreement with the exhibiting institution. Alternatively, there may be a loan agreement
involving all three parties to the loan; the lender, the exhibition facilitator and the
exhibiting institution.
Paragraph 8(1)(b)
Paragraph 8(1)(b) provides that Part 2 will only apply to an object if the object is
imported only or mainly for the purpose of temporary public exhibition. Unless
exceptional circumstances exist, Part 2 will cease to apply to an object at the end of a
period of two years (subclause 8(2) refers). This means that Part 2 will not apply to
objects on long term loan.
This provision ensures that Part 2 of the Bill can still apply to an object even if part of the
reason for its importation is for a purpose other than temporary public exhibition.
Examples where this may occur would be if an object is imported and undergoes
conservation treatment prior to being placed on temporary public exhibition. Another
example would be if an object needs to be stored following importation as it will not
immediately be placed on public exhibition. The need to temporarily store objects can
arise with touring exhibitions, where objects may arrive in Australia following the end of
an exhibition in another country but where the Australian institution is not ready for the
immediate exhibition of the object.
Paragraph 8(1)(c)
Paragraph 8(1)(c) makes it clear that for Part 2 of the Bill to apply to an object the
institution must be approved under Part 3 of the Bill at the time when the object is
imported into Australia.
Paragraph 8(1)(d)
Paragraph 8(1)(d) deals with the extent to which the Bill is supported by the Constitution.
It means that the operative provisions in Part 2 will apply only in the circumstances
where their application is within the constitutional power of the Commonwealth
Parliament. The inclusion of this provision means that the legislation should be read as
only applying to the circumstances in which the Commonwealth has constitutional
power. For Part 2 to apply, one or more of the following circumstances must exist:
· the loan is in the course of trade or commerce between Australia and a foreign
country;
· the lender of the object is a foreign corporation within the meaning of paragraph
51(xx) of the Constitution;
· 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;
· the parent of the institution or the exhibition facilitator is the Commonwealth or a
Territory;
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· the public exhibition of the object is to occur, is occurring or has occurred in a
Territory;
· 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;
· Part 2 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.
Paragraph 8(1)(e)
Paragraph 8(1)(e) specifies that Part 2 will apply to an object so long as importation of
that object does not contravene a law of the Commonwealth, that gives effect to an
international agreement, and that law is prescribed by regulation for the purpose of the
paragraph. This provision will enable Australia to comply with its international treaty
obligations by prescribing relevant legislation by regulation.
Paragraph 8(1)(f)
Paragraph 8(1)(f) specifies that the Part will apply so long as the object is not a Class A
object as defined under the Protection of Movable Cultural Heritage Act 1986 (PMCH
Act) when the object is imported. The exclusion of Class A objects from the application
of the Bill recognises that those objects have already been identified as significant
Australian heritage objects and for that reason, it is considered appropriate that they will
continue to be regulated by the PMCH Act. It also recognises that the Aboriginal and
Torres Strait Islander cultural material in that category is particularly sensitive and
culturally important. It includes human remains, bark and log coffins, secret sacred ritual
material, rock art and dendroglyphs (carved trees). Non-Indigenous Class A objects are
excluded from the application of the legislation and include each piece of Ned Kelly's
armour and specified Victoria Cross medals.
Paragraph 8(1)(g)
Paragraph 8(1)(g) allows an institution to give a written notice to the Minister specifying
objects to which Part 2 of the Bill is not to apply. Such a notice must be made before the
object is imported, in the form approved by the Minister, and cannot have been
withdrawn before the object is imported. This provision has been included as there may
be circumstances where an institution determines that they do not need Part 2 of the Bill
to apply to certain objects. By opting-out of the application of Part 2 of the Bill for
certain objects, the institution will not be required to meet any of the associated
administrative requirements for objects that are protected under the scheme, such as the
publication or consultation requirements which are proposed to be specified by regulation
(paragraph 21(3) refers).
Subclause 8(2)
Subclause 8(2) sets out the circumstances in which Part 2 will cease to apply to the
object.
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Paragraph 8(2)(a)
Paragraph 8(2)(a) provides that Part 2 of the Bill will cease to apply to the object either at
the end of 24 months, starting on the day the object is imported into Australia, or upon
the export of the object from Australia. The Part will cease to apply upon whichever
event occurs first. This means that if an object is not exported within 24 months of its
importation into Australia, Part 2 will automatically cease to have effect at that time. The
application of Part 2 has been limited in this way as the purpose of the scheme is to
protect objects on loan for temporary public exhibition and most of those arrangements
are for periods of less than 24 months.
Paragraph 8(2)(b)
Paragraph 8(2)(b) enables the Minister to declare, by notice published on the
Department's website, that Part 2 will cease to apply to an object at a time that is worked
out in accordance with the declaration and that is at least 24 months after the day the
object was imported into Australia. Such a declaration must be made before the end of
24 months, starting on the day the object is imported into Australia, or before the export
of the object from Australia. This provision is included to allow the possibility of an
extension to the period of protection in exceptional circumstances (see paragraph
8(3)(b)).
Subclause 8(3)
Subclause 8(3) provides that the Minister may make a declaration for the purposes of
paragraph 8(2)(b) only upon application by the exhibiting institution and only if the
Minister is satisfied that exceptional circumstances justify making the declaration.
An example of where the Minister might make such a declaration would be if the
exhibiting institution made an application to the Minister that there was a requirement for
conservation work to be undertaken to repair damage that had occurred to an object
during the loan period, where the time required for that work to be undertaken would
result in the object being in Australia for more than 24 months and the Minister was
satisfied that the conservation work was an exceptional circumstance that justified
making the declaration. Another example may be if the object(s) were part of an
exhibition that was touring to multiple venues in Australia and the cumulative period of
time the object(s) would be in Australia was to exceed 24 months.
Subclauses 8(4)
A declaration made by the Minister under subclause 8(3) is administrative in effect and
therefore is not a legislative instrument under section 5 of the Legislative Instruments Act
2003. Subclause 8(4) confirms this and is included to assist readers.
Subclause 8(5)
Subclause 8(5) explains that an object is neither imported into Australia nor exported
from Australia merely because it is moved between an external Territory and either a
State or an internal Territory.
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Clause 9 - Protection from suit
This clause sets out the circumstances when an object will be protected from suit. In
order to provide comprehensive protection for objects while they are on temporary loan,
the Bill includes provisions that limit suit claims.
Clause 9 provides that proceedings for an action in personam (subclause 9(1) refers)
relating to the object cannot be started against a protected person (clause 5 defines
`protected person'), and proceedings for an action in rem (subclause 9(2) refers) relating
to the object cannot be started.
Subclause 9(1)
Subclause 9(1) prevents proceedings for an action in personam relating to the object
being started against protected persons for the object. This means that proceedings will
not be able to be brought against protected persons involved in the loan of the object,
such as the lender of the object, the exhibition facilitator for the object, an exhibiting
institution for the object or other persons who fall within the definition of protected
person (clause 5 refers).
Subclause 9(2)
Subclause 9(2) prevents proceedings for an action in rem being started in relation to the
object. This provision prevents action being brought against a person where the purpose
of the action is to determine title or to affect interests in specific property. An example of
an action in rem would be if a creditor were to bring proceedings to try to claim an actual
object due to the lender having unpaid debts they wished to pursue. These types of
claims can be difficult for institutions to identify when negotiating loans, and for this
reason it may not be feasible for the borrowing institution to fully investigate all such
possible situations.
Subclause 9(3)
Subclause 9(3) provides an exception to the circumstances preventing the commencement
of proceedings in subclauses 9(1) and 9(2) by permitting a protected person for the object
to start proceedings against another protected person for the object. This has been
included to enable action to resolve claims, such as the resolution of a contractual
dispute. The Bill includes an example of an exhibiting institution starting an action
against a person it has engaged to transport the object.
Subclause 9(3) sets out the circumstances in which a person who is a protected person for
the object, because of a particular paragraph of the definition of protected person (clause
5 refers), can start proceedings against another person who is also a protected person for
the object because of that paragraph or a later paragraph.
This hierarchy of protected persons recognises the fact that some protected persons have
a higher claim than others to start proceedings and has been included to protect the
lender. At times, people lower in the hierarchy will have physical possession of the
object and could elect to retain custody of the object. Without this exception the lender
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(or a person higher in the hierarchy) would be unable to start an action to reclaim the
object.
The hierarchy is demonstrated in the example in the Bill, where the exhibiting institution
is able to start action against the transport contractor but the transport contractor cannot
start action against the exhibiting institution because it is in a lower paragraph in the
definition of protected person (see clause 5).
Subclause 9(4)
Subclause 9(4) provides an exception to the circumstances preventing the commencement
of proceedings in subclauses 9(1) and 9(2) by permitting proceedings under the Proceeds
of Crime Act 2002 or proceedings prescribed by regulation. The Proceeds of Crime Act
2002 establishes a scheme to trace, restrain and confiscate the proceeds of crime against
Commonwealth law and, in some cases, confiscate proceeds of crime against foreign
laws or State laws. Proceedings under the Proceeds of Crime Act 2002 have been
exempted from the Bill in recognition of Australia's international obligations in relation
to proceeds of crime and because the Bill is not intended to provide protection for
criminal action.
An exception is also provided for proceedings prescribed by regulation. The ability to
prescribe proceedings by regulation has been included as it provides a mechanism to
enable proceedings to be excluded following the commencement of the Bill. This
exception also recognises the possibility of the enactment of future laws to which the
Commonwealth may not want subclause 9(1) and (2) to apply.
Subclause 9(5)
Subclause 9(5) explains that clause 9 applies to the starting of proceedings in a federal
court or a court of a State or Territory by claim, cross-claim or otherwise. Preventing
action being commenced in federal, State and Territory courts enables the object to be
protected from point to point, including across jurisdictional boundaries, following
importation into Australia. It is not uncommon for objects on loan to be transported
across jurisdictional boundaries. This occurs when objects tour to multiple venues,
however, it can also occur if an object arrives in one city and is transported to another
city for exhibition. An example would be a shipment of paintings arriving at Sydney
international airport and being transported by air or road to an exhibition being held in
Canberra.
Clause 10 - Protection from enforcement of judgements and orders
This clause sets out the circumstances in which an object will be protected from the
enforcement of judgements and orders.
Subclause 10(1)
Subclause 10(1) provides that 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 is a judgement or order:
· in personam, that is, against a protected person for the object; or
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· in rem, that is, relating to the object itself.
The effect of subclause 10(1) is that a judgement or order of a federal court or a court of a
State or Territory or foreign country that relates to an object cannot be enforced against
the object. Preventing the enforcement of such judgements or orders enables the object
to be protected from point to point, including across jurisdictional boundaries, following
importation into Australia.
An example of the effect of this provision is where a judgement or order has been given
by a State court in relation to an object. The judgement or order would not be able to be
enforced against the object so long as Part 2 of the Bill applied to the object.
Subclause 10(2)
Subclause 10(2) sets out exceptions to the prevention on enforcement of actions in
subclause 10(1) for some foreign judgements and awards. By this provision, enforcement
action is not prevented under:
· Part 2 of the Foreign Judgments Act 1991 to enforce a judgement of a superior
court of a country in relation to which that Part extends or an inferior court to
which that Part extends;
· Part 7 of the Trans-Tasman Proceedings Act 2010 to enforce a judgement of a
court of New Zealand; or
· Part II of the International Arbitration Act 1974.
These exceptions have been included in the Bill to ensure that Australia is not in breach
of its international obligations or reciprocal arrangements that it has with other countries
for recognition and enforcement of judgements.
The Foreign Judgments Act 1991 recognises reciprocal arrangements that Australia has
with other countries for the recognition and enforcement of judgements. The Foreign
Judgments Act 1991 only currently allows for the registration of judgements in Australia
from courts that are prescribed in the Foreign Judgments Regulations 1992 for a fixed
monetary sum.
The Trans-Tasman Proceedings Act 2010 is underpinned by a bilateral treaty, the
Agreement between the Government of Australia and the Government of New Zealand on
Trans-Tasman Court Proceedings and Regulatory Enforcement. Once the Act
commences, it will provide for New Zealand judgements and orders to be registered and
enforced in Australia.
Part 2 of the International Arbitration Act 1974 relates to the enforcement of foreign
awards under the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards. Australia is a contracting state for that Convention.
Subclause 10(3)
Subclause 10(3) sets out the circumstances in which the enforcement of a judgement or
order in favour of a protected person for the object is not prevented. This exception
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aligns with the exception which allows protected persons to start proceedings subject to a
hierarchy (subclause 9(3) refers). As with subclause 9(3), there is a hierarchy in relation
to the enforcement of judgements and orders favouring protected persons. The hierarchy
means that a judgement or order in favour of a protected person for the object will only
be able to be enforced against a protected person for the object if that protected person is
in the same paragraph as them in the definition of protected person or a later paragraph.
Subclause 10(4)
Subclause 10(4) sets out exceptions relating to the enforcement of certain other
judgements and orders. As with clause 9, an exception is provided for an order made
under the Proceeds of Crime Act 2002. Orders made under that act have been exempted
as Australia has international obligations in relation to proceeds of crime.
An exception is also provided for a judgement or order made in proceedings prescribed
by regulation for the purposes of the subsection. The ability to prescribe proceedings by
regulation has been included as a mechanism to enable proceedings to be excluded
following the commencement of the scheme. This exception recognises the possibility of
the enactment of future laws to which the Commonwealth may not want subclause 10(1)
and (2) to apply. An example where this provision may be utilised would be if Australia
became a party to a new international agreement relevant to the enforcement of
judgements and orders and then enacted legislation to give effect to its obligations under
the agreement.
Clause 11 - Protection from seizure under statutory powers
This clause sets out the protection that an object will have from seizure under certain
statutory powers.
Subclause 11(1)
Subclause 11(1) provides that an object cannot be seized under a law of the
Commonwealth, a State or a Territory. Protection is provided against action under State
and Territory legislation as well as Commonwealth legislation in order to ensure that
there is comprehensive protection from seizure for objects on loan. This provision will
enable the object to be protected from point to point, including across jurisdictional
boundaries, following importation into Australia.
Subclause 11(2)
Subclause 11(2) sets out the exceptions to the protection from seizure in subclause 11(1).
It does not prevent seizure under:
· Part IAA of the Crimes Act 1914; or
· Part 3-5 of the Proceeds of Crime Act 2002; or
· a law of the Commonwealth, a State or a Territory that gives a police officer
(however described) a power of seizure and does not give that power to anyone
other than a police officer; or
· a law of the Commonwealth, a State or a Territory prescribed by regulation for
the purposes of this subsection.
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The exceptions have been included to recognise that there may be circumstances where it
is appropriate that police officers retain the ability to seize an object. Seizure is also not
prevented if the action is undertaken under a law of the Commonwealth, a State or a
Territory that gives a police officer a power of seizure and does not give that power to
anyone other than a police officer. An example of where seizure in this circumstance
may be required would be if an object was used in a crime, or was otherwise required to
be held as evidence of a crime committed during the period of the loan and needed to be
seized by a police officer and held as evidence. Another example (although highly
unlikely) of where this provision would be relevant is if an object on loan was used in a
homicide or serious assault, and where the infliction of injury or cause of death are
crucial points of proof and the object is required in court as evidence in criminal
proceedings.
Clause 12 - Protection from forfeiture
Clause 12 sets out the protection from forfeiture that will be provided to objects. It
provides that an object cannot be forfeited because of a law of the Commonwealth, a
State or a Territory, except in the limited circumstances set out in subclause 12(2).
Subclause 12(1)
Subclause 12(1) prevents forfeiture under State and Territory legislation as well as
Commonwealth legislation. This enables the object to be protected from forfeiture from
point to point, including across jurisdictional boundaries, following importation into
Australia.
Subclause 12(2)
Exceptions to the protection from forfeiture are set out in subclause 12(2). They are
consistent with the other protection clauses in the Bill (clauses 10 and 11) which do not
prevent action being taken under the Proceeds of Crime Act 2002. It is also consistent
with clause 11 by not preventing action being taken under the Crimes Act 1914.
Clause 13 - Protection from heritage laws and things done under them
Clause 13 sets out the protection from heritage laws (clause 5 defines `heritage law') and
things done under them. Heritage laws are defined as encompassing laws of the
Commonwealth, a State or a Territory that relate to heritage, whether or not the law
relates to:
· heritage of a particular community (such as Aboriginal or Torres Strait Islander
heritage); or
· heritage of a particular kind (such as objects associated with historic shipwrecks,
records of government or archival material).
Subclause 13(1)
Subclause 13(1) explains that heritage laws cannot affect a protected person for an object
where their activities relate to the object for the purpose of:
· giving effect to a temporary loan arrangement for the object (paragraph 13(1)(a));
or
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· meeting the person's obligations to another protected person who is party to a
temporary loan arrangement for the object (paragraph 13(1)(b)).
Subclause 13(2)
Subclause 13(2) provides that nothing done under a heritage law affects:
· ownership of the object; or
· physical possession, custody or control of the object by a protected person; or
· a right of a protected person to physical possession, custody or control of the
object.
This provision captures the broad range of actions, additional to those actions specifically
identified in clauses 9, 10, 11 and 12, that may be undertaken under statute. The Bill
limits those actions in order to provide comprehensive protection to objects on temporary
loan. Examples of some of the actions that exist in heritage laws, and which would be
limited by this provision, include the issuing of declarations in relation to an object, the
giving of directions in relation to an object or prohibitions on certain actions in relation to
an object.
The Bill limits action under laws that fall within the definition of heritage laws as those
are the laws which would be of most relevance to objects imported into Australia for
temporary public exhibition. This provision is most likely to be of relevance to objects of
an Australian origin which have entered into foreign collections and which are
subsequently proposed to be imported into Australia on loan for temporary public
exhibition.
To balance this, the Bill also provides that regulations may be made for the purposes of
enabling consultation by borrowing institutions with communities or organisations
(clause 21 refers). These consultation requirements would be relevant to proposed loans
of Aboriginal or Torres Strait Islander objects or loans of archival material
Subclause 13(3)
Subclause 13(3) provides an exception for heritage laws that are prescribed by regulation.
Subclause 13(4)
Subclause 13(4) explains that clause 13 does not limit any other section in Part 2, and is
not limited by any other section of Part 2.
Clause 14 - Relationship with other laws
Clause 14 sets out the relationship between the Bill and other laws. To achieve its
objective the Bill limits the circumstances in which action can be taken under certain
laws. Clause 14 provides that Part 2 applies to the exclusion of certain Commonwealth
laws, whether made before or after the commencement of the Bill, and any rule of
common law or equity, including, for example, a rule of private international law.
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Part 3 - Approval of institutions
Division 1 - Approval
Clause 15 - Approval
Clause 15 explains that borrowing institutions must make an application to the Minister
for approval and it sets out factors relevant to the Minister in exercising his or her power
to approve the institution.
The scheme will operate as an approval based scheme. The operation of the scheme will
mean that objects, normally in a foreign country, will be protected if they are imported
into Australia on loan for temporary public exhibition under arrangements involving
institutions approved by the Minister.
Decisions made by the Minister under clause 15 are reviewable by the Administrative
Appeals Tribunal (AAT) (see clause 18).
Subclause 15(1)
Subclause 15(1) makes it clear that the process for approval will operate on an
application basis. The Minister may only approve a borrowing institution upon receipt of
an application from a borrowing institution or their parent. The Minister may approve
the institution by notice given to the institution and published on the Department's
website.
Subclause 15(1) provides that the approval of an institution is for a specified period of
not more than 60 months. Limiting the period of approval means institutions will need to
make another application for approval if they wish to continue to be approved under Part
3 of the Bill after the expiry of their approval. It is appropriate to limit the period of
approval as an institution's operations may be subject to change over time. Requiring
them to reapply for approval enables an institution's procedures to be reassessed by the
Minister. That is appropriate because the Minister needs to be satisfied that the
institution has the capacity to satisfy the requirements of the legislation and regulations.
Subclause 15(2)
Subclause 15(2) sets out the matters the Minister must consider in deciding whether to
approve a borrowing institution and provides that other matters may be prescribed by
regulation. It also makes it clear that the Minister's decision to approve an institution is
not limited to the matters specified in the Bill or prescribed by regulation.
The intention of this Bill is to address a significant obstacle that Australia's major
institutions face in securing loans of foreign objects. The purpose is not to support the
exhibition of stolen or illegally exported works, or works that have uncertain provenance.
Given this, the matters the Minister must consider are focussed on processes associated
with loan arrangements. Matters that fall within the scope of subclause 15(2) include an
institution's:
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· curatorial and collection management expertise;
· procedures for provenance identification of objects collected or exhibited;
· procedures used to identify objects in a foreign country that could be the subject
of a loan;
· procedures for negotiating temporary loan arrangements for objects that are
normally in a foreign country; and
· experience exhibiting foreign loans.
As objects brought into Australia under arrangements by an approved institution are
automatically protected, the integrity of the legislation is contingent on the practices and
expertise of the approved institutions. Therefore it is crucial that institutions seeking
approval are able to clearly demonstrate the necessary expertise, rigour, capacity and
resources to meet those demands. The inclusion of those requirements in the Bill
supports Australia's continued ability to meet its international obligations under the 1970
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property by ensuring approved institutions
have demonstrated procedures and practices that guard against the import of illicitly
obtained objects.
Subclause 15(3)
A notice made by the Minister under subclause 15(1) is administrative in effect and
therefore is not a legislative instrument under section 5 of the Legislative Instruments Act
2003. Subclause 15(3) confirms this and is included to assist readers.
Clause 16 - Conditions of approval
Clause 16 enables the Minister to impose, vary and revoke conditions on the approval of
a borrowing institution by notice given to the institution. Such a notice must be provided
by the Minister in writing and it must be published on the Department's website.
An example of a condition that the Minister may impose on a borrowing institution
would be if the Minister included a requirement that the borrowing institution undertake
an external audit of its compliance with the provisions of the legislation and regulations,
and to provide that report to the Minister.
A decision made by the Minister under clause 16 is reviewable by the AAT (see clause
18).
A notice made by the Minister under subclause 16(1) is administrative in effect and
therefore is not a legislative instrument under section 5 of the Legislative Instruments Act
2003. Subclause 16(2) confirms this and is included to assist readers.
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Division 2 -Revocation of approval
Clause 17 - Revocation of approval
Clause 17 provides that the Minister may revoke an approval of a borrowing institution
by notice. Revocation may occur if the Minister is satisfied that:
· a borrowing institution has contravened a regulation involving the institution; or
· a borrowing institution has contravened any of the conditions of the approval; or
· approval should be revoked, having regard to matters considered when making a
decision to approve an institution (which are described in paragraphs 15(2)(a),
(b), (c), (d), (e) and (f)) and any other relevant matters.
The Minister may revoke an institution's approval if he or she is satisfied that the
institution is not maintaining the same standards of conduct in relation to matters that
were considered by the Minister at the time of approval. Another example would be if
the Minister is satisfied that the institution has not maintained standards in relation to
confirming the provenance of objects proposed for loan, or if the institution's processes
for negotiating temporary loan arrangements have changed and are not considered to be
of an appropriate standard.
Part 2 of the Bill will continue to apply to objects which have already been imported into
Australia under a temporary loan agreement on the date on which approval is revoked.
However, objects imported into Australia after that date for temporary public exhibition
under arrangements involving the institution will not be protected because the
requirement in paragraph 8(1)(c) would no longer be satisfied.
A decision by the Minister under clause 17 is reviewable by the AAT (see clause 18).
A notice made by the Minister under subclause 17(1) is administrative in effect and
therefore is not a legislative instrument under section 5 of the Legislative Instruments Act
2003. Subclause 17(2) confirms this and is included to assist readers.
Clause 18 - Review by the Administrative Appeals Tribunal
Clause 18 provides that applications may be made to the AAT for the review of a
decision by the Minister to refuse to approve a borrowing institution under clause 15 or
impose or vary a condition on the approval of a borrowing institution under clause 16 or
revoke the approval of a borrowing institution under clause 17.
The provision of this right of review is consistent with Commonwealth policy that all
administrative decisions that affect the interests of a person be open to review on the
merits.
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Part 4 - Miscellaneous
Clause 19 - Delegation
Clause 19 enables the Minister to delegate in writing all or any of his or her functions or
powers under the Bill, with the exception of the function and power under clause 21
(Regulations), to a Senior Executive Service employee or acting Senior Executive
Service employee of the Department.
Clause 20 - Compensation for acquisition of property
The Bill has been drafted so as to avoid the potential for any acquisition of property other
than on just terms that would be contrary to section 51(xxxi) of the Constitution.
Subclause 20(1) provides that in cases where the operation of the Bill results in an
acquisition of property the Commonwealth is liable to pay a reasonable amount of
compensation to the person. Subclause 20(2) allows that 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 such reasonable amount of compensation as the
court determines.
Clause 21 - Regulations
Clause 21 enables the Governor-General to make regulations prescribing matters required
or permitted by this Bill to be prescribed, or necessary or convenient to be prescribed for
carrying out or giving effect to this Bill.
It is expected that regulations may need to be made in accordance with this clause in
relation to certain matters required or permitted to be prescribed under this Bill, including
for example consultation and publication.
Any such regulations are legislative instruments under section 6(a) of the Legislative
Instruments Act 2003.
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