Discussion paper (PDF - 459 KB)

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