24 July 2012

Repatriation of Cultural Property

The national Arts Minister, Simon Crean, has announced that international loans of "important cultural objects will be secured by new legislation to protect them from seizure".
The new legislation will guarantee the return to the lender of cultural objects such as paintings, drawings, sculptures, textiles, stamps and coins, which are brought to Australia on loan for temporary public exhibition. 
The SMH report indicates that the Minister argued that in the absence of such a statute 'Australians might have been denied the opportunity to see masterpieces such as those on loan from the Prado in Madrid to the Queensland Art Gallery' and that its absence 'has been cited by Australian collecting institutions as a barrier to negotiating loans where there is the potential for dispute about a work's ownership or ethics of acquisition'.

The new legislation, scheduled for passed in the 2012 spring session of Parliament, will supposedly "ensure that any [such] loans from overseas collections will be co-ordinated in consultation with Aboriginal and Torres Strait Islander people". It will modify the regime provided by the Protection of Movable Cultural Heritage Act 1986 (Cth) and the Foreign States Immunities Act 1985 (Cth).

Australia is a party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Export and Transfer of Ownership of Cultural Property and is considering accession to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, the Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and the 2001 Convention on the Protection of the Underwater Cultural Heritage.

The proposed legislation reflects last year's consultation exercise centred on the 23 page 'Immunity from Seizure for Cultural Objects on Loan' discussion paper [PDF] under the auspices of the Office for the Arts in the Prime Minister's Department.

The expectation is that the granting of immunity for an object or collection would prevent third party claimants from lodging petitions to disrupt or terminate the loan of the object or collection in question.

Immunity would also prevent the enforcement of any judgment or arbitration award, and would prevent judicial seizure (including criminal seizure) resulting from third party claims whilst in Australian territory, providing the above requirements were maintained and remained true for the duration of the loan. That would address concerns highlighted in the litigation over Schiele's Portrait of Wally from 1998 to 2010, discussed in works such as Holocaust Restitution: Perspectives on the Litigation and Its Legacy (New York: New York University Press 2006) by Michael Bazyler & Roger Alford and 'Art Loans and Immunity from Seizure in the United States and the United Kingdom' by Lawrence Kaye in 17 International Journal of Cultural Property (2010) 335-359.

Immunity would
prevent any court in Australia from making any order which deprives the borrower or any person or organisation contracted by them in accordance with the loan agreement from possession of the object or collection, unless the court is required to make the order under, or under provision giving effect to, any international treaty to which Australia is a party.
Key points in a 'hypothetical model' identified in the paper are -
  • An immunity from seizure certificate may be granted for each item or collection proposed for loan at the discretion of the Minister for the Arts or their delegate. 
  • The objects must be arriving in Australia for the purpose of public exhibition, and the granting of immunity would be subject to particular requirements. These may include
  • the exhibiting institution’s demonstration of due diligence in their general operations, as well as specifically in regard to the loan in question, such as compliance with the ICOM code of ethics; 
  • the provision of provenance and acquisition records by the lender; 
  • evidence of the lender’s legal authority to lend the object and confirmation that these have been checked by the borrower; 
  • confirmation that there has been no breach of any international obligations; 
  • that the import of the object does not contravene a prohibition or restriction on the import of goods (for example CITES); and 
  • confirmation that the ICOM Red Lists and ‘100 Missing Objects’ list has been checked.
  • Immunity from seizure would only be granted to objects or collections for which the lender was seeking immunity as a non-negotiable clause in the loan agreement. 
  • Applicants would be able to apply for immunity for up to two years in advance of an object entering Australia. Applications must be made at least 6 months before the object is due to arrive in Australia.
  • The immunity certificate would be current for up to two years, from the date the object arrives in Australia, with an extension only in the event that conservation or repair work must be undertaken in Australia as a result of damage incurred to the object during the period of the loan. The length of the certificate would be inclusive of travel periods for the transport to and from the exhibition. 
  •  In the case of Australian material that fell within the definition of an Australian Protected Object under the Protection of Movable Cultural Heritage Act 1986, a Certificate of Exemption might be sought via the existing process. 
  • As Commonwealth legislation, the provisions would override all state and territory laws to the extent of any inconsistency, except public records laws which allow state and territory public record offices to seize and retain ownership of documentary heritage records that were created by the relevant state or territory government.
Submissions in response to the paper are here.