Department of the Prime Minister and Cabinet
Office for the Arts
Discussion paper on
Immunity from seizure for Cultural Objects on Loan
Submission by the Museum of Applied Arts and Sciences
(Powerhouse Museum)
August 2011
Overview
The Museum of Applied Arts and Sciences (the Powerhouse Museum, Sydney
Observatory, Powerhouse Discovery Centre: Collection Stores at Castle Hill and
NSW Migration heritage Centre) supports the introduction of immunity from
seizure legislation.
There is evidence that the lack of relevant legislation means that international
institutions are becoming more reluctant to lend to Australia. The increase in
international awareness of immunity from seizure is likely to mean an ongoing
corresponding increase in the number of countries demanding legal certainty
before agreeing to any significant cultural loans. This has social, cultural and
economic impacts for Australia, especially due to our relatively isolated
geographical position.
The proposed legislation should only cover loans and exhibitions between major
public international institutions, in order to ensure that the coverage only
applies within the context of due diligence and a high level of ethical practice and
professional governance.
The legislation should not be used to bypass Australia’s commitment to UNESCO
conventions and declarations regarding illicit trafficking, repatriation, and
Indigenous rights.
In 2000, the Museum was asked by Hellenic Ministry of Culture for immunity
from seizure for objects included in a major exhibition to coincide with the
Sydney 2000 Olympic Games, 1000 Years of the Olympic Games: Treasures of
Ancient Greece. Given the lack appropriate Australian legislation, it took quite
some time to negotiate the release of the exhibition. At one stage the Greek
government refused to allow the iconic antiquities to travel. The exhibition
became a major highlight of the Games celebrations and attracted a high number
of interstate and overseas tourists.
This year, the Bibliothèque Nationale de France requested information regarding
immunity from seizure when considering the Museum’s request to borrow an
early Korean manuscript. The lack appropriate Australian legislation meant
that loan request was subsequently not granted.
The Museum is planning an exhibition on the iconic French architect Le
Corbusier in 2012, including loans from France. As France already has
Immunity from Seizure legislation, it is likely that the Powerhouse will be asked
about Australian legislation which may influence the Museum’s ability to
organise significant loans. The Museum is also considering a major exhibition
primarily from Egypt in 2013, which would also require other international
loans. It is anticipated that major British and Russian museums would require
Immunity from seizure legislation before the release of their objects.
As other major countries holding extensive cultural collections already have
years of successful implementation of immunity from seizure legislation, it is
unlikely that there would be any negative impacts within Australia, especially if
the legislation is scoped as outlined below.
1. Exemption for Australian Protected Objects as defined by the PMCH
Act.
Should Australian Protected Objects be excluded from coverage under
potential immunity from seizure legislation?
The Museum does not support limiting immunity from seizure to objects on loan
which are not classified as Australian Protected Objects (APOs) under the PMCH
Act.
It is recognised that there is a real likelihood of objects on loan from the
indigenous cultures of other countries to Australian museums and galleries in
the future, and that there is therefore merit in a consistent approach to the
immunity offered this class of objects, regardless of their cultural origins.
It may however be appropriate to develop protocols relating to engagement with
relevant Aboriginal and Torres Strait Islander communities. Agreed procedures
for the loan of Indigenous cultural material, requiring the agreement by a person
of authority from the relevant community would secure the confidence of
Aboriginal and Torres Strait Islander people to enable increased access to works
of Indigenous culture and heritage, whilst providing appropriate control over its
exhibition.
As mentioned in the Discussion Paper, the legislation should not include human
remains.
2, Types of claims
What types of claims should be prevented or allowed under this type of
legislation? Should Australia consider immunity from seizure with a
return guarantee for the object, but not prevent other types of claims for
damages, compensation, etc.?
The Museum believes the types of claims covered by anti-seizure legislation
should be as broad as possible.
It should both protect museums from court action directed against the loaned
object and action by law enforcement officers (police, customs and the like)
exercised outside the court system.
Immunity from seizure should not be restricted to loans in the strict legal sense,
and be applied to other transfers of possession to Australian museums for the
purpose of display where the museum is not the sole owner of the object and the
transferer retains a right of possession against the museum.
The immunity should cover loans into Australia from outside Australia.
Immunity should apply to Commonwealth and state museums, capable of
demonstrating a) the development of appropriate policies and procedures
regarding loans, b) the adoption of appropriate in-loan terms, and c) other
conduct and professional standards reflecting its fitness as a lending institution.
Museums should be able to certify themselves as satisfying the criteria for
immunity by supplying the appropriate documentation and declarations of
commitment to a designated government authority.
Immunity should be general to the institution, and not conferred on an object –by
– object basis. and include claims for damages and compensation.
3. Publication
If a publication requirement was to form part of an Australian model of
immunity from seizure, what would be the best way to disseminate this
information (online, in a newspaper etc.)?
Whilst recognising the argument for transparency that the publication of objects
under application, we believe there are a range of philosophical and practical
issues that would make the universal publication of objects under consideration
impractical.
It is recognised that some lenders would, for either privacy of commercial reasons
(or both) not wish to have details of objects they own made generally available.
The proposed 60 day publication period is considered problematic, as there may
be occasions when all loans for an exhibition are not finalised to enable complete
publication.
Australian Indigenous material should not be published universally or
indiscriminately, without regard for the concerns of its originating community.
Were publication to be adopted as part of the Australian model, a mechanism to
allow the speedy and defensible review and decision making process, in the event
of a person challenging the loan would be required. Equally, were publication to
be adopted, it should apply to loans from one Australian state to another, in
addition to loans from other countries. We are aware of issues in the past of
concern when loans have been made to or from some Australian state galleries
and museums.
We note that Australian national and state institutions operate under a high
level of governance and ethical professional practice and should be enabled to
carry out this process independently. Extensive provenance research and due
diligence already operate and could be further developed and encouraged through
this legislation. These principle apply equally to our responses to questions 6,7
and 8 of this submission.
We do not accept the need for a separate external verification process for
individual exhibitions or for individual loaned objects.
4. Purposes of loan
For what purposes should loans be undertaken to make them eligible for
immunity protection?
Loans should primarily be for exhibition or display purposes by major public
institutions, as supplying the primary public benefit. We strongly support the
exclusion of loans by commercial entities for profitable purposes. If loans are
designated for research, it should be clearly supportable as scientific or cultural
research.
5. Australian Indigenous movable cultural heritage
Recognising the unique challenges faced by Indigenous communities in
relation to their cultural provisions be made to ensure appropriate
protection?
As outlined in Section 1 of this submission, the Museum does not support
limiting immunity from seizure to objects on loan which are not classified as
Australian Protected Objects (APOs) under the PMCH Act.
It is recognised that there is a real likelihood of objects on loan from the
indigenous cultures of other countries to Australian museums and galleries in
the future, and that there is therefore merit in a consistent approach to the
immunity offered this class of objects, regardless of their cultural origins.
6. Periods of Dispossession, Occupation or Nationalisation of Property
Should immunity be provided for objects for which provenance gaps
exist during known periods of war, looting or theft, for example Europe
in 1933-45 and 19th century colonial North Africa? What is a reasonable
amount of information that should be provided for objects in this
circumstance?
All major museums and galleries have a serious responsibility in regard to loans
and acquisition policy and practices. Detailed provenance research should be
undertaken, and no objects with significantly disputed ownership should be
considered for loan to Australian institutions. International art and artefact loss
lists should always be consulted when negotiating loans. As noted at (3) the
legislation should also apply to inward loans from other major state institutions.
The importance of community consultation, advice and notification becomes very
important for cultural objects with known provenance gaps from these periods.
It is important to have a workable balance between community consultation and
the ability, particularly for the galleries, to negotiate organise major European
shows effectively.
7. Inter-country and inter-state loans
If Australian objects, including Australian Protected Objects were
included as eligible for coverage under potential immunity from seizure
legislation, should coverage also extend to loans between Australian
states and territories, which may not have an international element ?
Yes. We are aware of instances in the past where loans from one state museum
would have benefitted from the existence of anti seizure legislation. We see no
reason for loans between states to be treated in a manner which is different from
loans between countries.
8. Assurances
What assurances or guarantees should be requested of the lender?
We accept that it will be appropriate for borrowers to require lenders to provide
contractual undertakings in the loan agreement that a) the facts and
circumstances stated by the lender are true and complete, to the best of the
lender’s knowledge, b) the lender will notify the borrower should any of the
information provided subsequently be discovered to be incorrect, c) the lender has
the authority to lend the object, d) the object can lawfully be exported and does
not offend any international convention, and e) the object has not been the
subject of a third party claim.
We also accept that the borrower should call for and scrutinise all available
documents and personal testimony regarding a) the circumstances in which the
lender cam to acquire the object, b) the lender’s explanation of any gaps in the
history or provenance, c) the legitimacy of the object and its proposed crossborder movement, and d) the lenders authority to lend the object.
The introduction of this legislation would be a good opportunity to raise the
profile of professional practices in this regard and guidelines could be developed
under auspices of Museums Australia and CAMD etc..
9. Eligibility.
What institutions or organisations should be eligible for immunity
provisions?
Legislation should be limited to major public collecting institutions in Australia
and overseas, including state and national museums, galleries and exhibiting
libraries. There are major risks involved in extending legislation to
organisations that do not operate solely for public benefit and under no obligation
to adhere to professional international museological standards.
Organisations such as university and local government museums and galleries
could utilise the legislation where necessary via collaboration with a state or
national institution.
10. Standardisation of loan forms
Should standard loan forms be introduced for institutions wishing to
access immunity guarantees from the Australian Government?
There is no need to develop a standard all purpose in-loan agreement for use by
Australian museums. There are however advantages in museums working
together to devise common terms on particular issues, such as legal status, title
and provenance, and common practice on the ethical management of loans.
Many international lenders will understandably insist on using their own
outward loan forms and exhibitions are often negotiated via contracts and letters
of agreement. Once again, industry groups such as Museums Australia and the
Australasian Registrars Committee, in conjunction with legal advisors, could
contribute to developing standard clauses.
11. Legitimate claims
What information would you consider could form the basis of a
legitimate claim? What standards should be required to show the
legitimacy or appropriateness of consultation with Indigenous
communities has been undertaken by borrowers, to ensure any potential
claimants are aware of the material entering Australia? Should the basis
for a legitimate claim be determining that claimants were able to file a
claim in the jurisdiction in which the property is usually held, or another
jurisdiction which has the ability to hear and decide on the claim?
Should borrowers and lenders have the right to rebut any potential claim
before a decision is made on the immunity provisions? What dispute
resolutions would be appropriate for claimants?
The legislation would need to outline the processes to be followed in the event of
a claim. It has been noted that in the UK, there has been very few examples of
any claimants coming forward to request that objects not be given immunity from
seizure. As mentioned above, the professional museum bodies within Australia
should consult with legal advisors to develop standards which must be met in
terms of detailed provenance research and ethical practice. Any consideration of
claims would make reference to the reliability of the object’s history of ownership
and the validity of the claim being made.
The great majority of state and national institutions have Indigenous staff
members who are ideally placed to ensure that effective and thorough
consultation and notification occurs with the appropriate communities.
Dr Dawn Casey PSM FAHA
Director