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Immunity from Seizure for Cultural Objects on Loan - Discussion Paper 2011Hypothetical ModelFor the purposes of this discussion paper, a hypothetical model outlining a possible operation ofimmunity from seizure in Australia has been developed. This model has been developed for thepurpose of encouraging comments from stakeholders. It is not intended at this stage that this will be amodel proposed by the Australian Government for implementation. Please note that furtherquestions follow the model, which encourage input and suggestions to inform any future developmentof a model.Under this model the Australian Government would provide for the immunity from seizure, immunityfrom suit and immunity from the execution of judgment made in a foreign court relating to culturalobjects not classified as Australian Protected Objects (APOs) which are on loan from overseas only topublic (Commonwealth, state or territory) collecting institutions in Australia upon application 1 .Key points• An immunity from seizure certificate may be granted for each item or collection proposedfor 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 2 , and thegranting of immunity would be subject to particular requirements. These may includethe exhibiting institution’s demonstration of due diligence in their general operations, aswell as specifically in regard to the loan in question, such as compliance with the ICOMcode of ethics; the provision of provenance and acquisition records by the lender; evidenceof the lender’s legal authority to lend the object and confirmation that these have beenchecked by the borrower; confirmation that there has been no breach of anyinternational obligations; that the import of the object does not contravene a prohibition orrestriction on the import of goods (for example CITES); and confirmation that theICOM Red Lists and ‘100 Missing Objects’ list has been checked.• Immunity from seizure would only be granted to objects or collections for which thelender 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 anobject entering Australia. Applications must be made at least 6 months before the objectis due to arrive in Australia.1 The introduction of this model would not affect or prevent the existing operation of loans, as undertaken by individual institutions. Existing protectionsunder the PMCH Act would not be affected and immunity would be a result of application, providing additional protection when necessary to ensure aloan can proceed.2Objects on loan for the sole purpose of exhibition for sale are not eligible.16
Immunity from Seizure for Cultural Objects on Loan - Discussion Paper 2011• The immunity certificate would be current for up to two years 3 , from the date the objectarrives in Australia, with an extension only in the event that conservation or repair workmust be undertaken in Australia as a result of damage incurred to the object during theperiod of the loan. The length of the certificate will be inclusive of travel periods for thetransport to and from the exhibition.• In the case of Australian material that falls within the definition of an Australian ProtectedObject under the Protection of Movable Cultural Heritage Act 1986, a Certificate ofExemption may be sought via the existing process.• As Commonwealth legislation, these provisions would override all state and territory lawsto the extent of any inconsistency, except public records laws which allow state andterritory public record offices to seize and retain ownership of documentary heritagerecords which were created by the relevant state or territory government.Protection• The granting of immunity for an object or collection would prevent third party claimantsfrom lodging petitions to disrupt or terminate the loan of the object or collection inquestion, it would also prevent the enforcement of any judgment or arbitration award, andwould prevent judicial seizure (including criminal seizure) resulting from third party claimswhilst in Australian territory, providing the above requirements are maintained and remaintrue and current for the duration of the loan. It would prevent any court in Australia frommaking any order which deprives the borrower or any person or organisation contracted bythem 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, anyinternational treaty to which Australia is a party.• The provision of immunity from seizure by the Australian Government does not affect ornegate the borrowing institution’s other responsibilities under the loan agreement, anddoes not imply that the Australian Government is responsible for the care andmaintenance of the object or objects on loan.OperationImmunity from seizure would not be automatic under this model. It would be available when lendersinsist on this protection and the loan, or a loan of an object/collection of equivalent significance wasunable to proceed without it. The granting of immunity from seizure would also be subject to a 60 daypublication requirement, wherein images and information about the object or objects for whichimmunity is being sought (including a full ownership history as comprehensive as possible, withexplanations for gaps in provenance, with special consideration of the 1933-45 period and with any3 Imposing a time limit on the provision of immunity lessens the likelihood that providing immunity from seizure potentially deprives a legitimateclaimant of their right to their property. The UK model allows for 12 months of protection and for a new period to commence every time the object/senter the UK. By extending the protection to 24 months it prevents objects being placed at higher risk by needing to leave Australia and re-enter, giventhe greater distances between Australia and its neighbouring countries compared to the UK.17
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