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Immunity from Seizure for Cultural Objects on Loan - Discussion Paper 20118. AssurancesWhat assurances or guarantees should be requested of the lender?Evidence of due diligence will be required in any potential model of immunity from seizure in Australia.This will include provenance information, and proof that the borrower has met internationallyrecognised standards of research to ensure that the objects they are borrowing have a clearprovenance. This will likely include information and assurances from the lender. Although it may besensitive and difficult to request assurances, should it be a requirement of the granting of immunitythat assurances of title are provided? In what cases may this not be appropriate? Should there beexceptions to this requirement?9. EligibilityWhat institutions or organisations should be eligible for immunity provisions?Should the provision of immunity from seizure be restricted to Commonwealth, state and territorycollecting institutions? Should non-state and territory institutions which form a partnership withCommonwealth, state and/or territory collecting institutions also be eligible? Should eligibility berestricted to institutions which can, or have, developed and published a responsible and appropriatepolicy on provenance checking and risk assessment? What would collecting institutions consider to bea ‘rigorous due diligence process’? Should such a policy be developed collectively by the collectinginstitutions that wish to take part? How would this collaboration work (through Museums Australia,ICOM, etc.)? Should immunity from seizure eligibility be open to all importers, including universities,private institutions or organisations such as auction houses, etc.?10. StandardisationShould standard loan forms be introduced for institutions wishing to access immunity guaranteesfrom the Australian Government?Currently, institutions conduct loan negotiations individually and have flexible, individual contractsand loan agreements. The European Union’s Action Plan for the EU Promotion of Museum Collections’Mobility and Loan Standards recommended in 2006 that standard loan forms be developed. It ispossible that Australia could move towards developing standard loan agreements.Are there any issues you can foresee with developing standard loan agreements (with flexibility tochange clauses or parts of the agreements as required)?14
Immunity from Seizure for Cultural Objects on Loan - Discussion Paper 201111. Legitimate claimsThe hypothetical model provided in this discussion paper proposes that a certificate of immunity couldbe granted when a number of factors have been considered including that that no legitimate claim hadbeen made to the property during a publication period.What information would you consider could form the basis of a legitimate claim? What standardsshould be required to show the legitimacy or appropriateness of consultation with Indigenouscommunities has been undertaken by borrowers, to ensure any potential claimants are aware of thematerial entering Australia? Should the basis for a legitimate claim be determining that claimants wereable to file a claim in the jurisdiction in which the property is usually held, or another jurisdiction whichhas the ability to hear and decide on the claim? Should borrowers and lenders have the right to rebutany potential claim before a decision is made on the immunity provisions? What dispute resolutionswould be appropriate for claimants?15
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