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Immunity from Seizure for Cultural Objects on Loan - <strong>Discussion</strong> Paper 2011information which suggests irregularities of ownership/acquisition) would be displayed online. 4 Duringthis period any potential claimants would be able to notify the Australian Government in writing thatthey may make a claim on the object or objects. Should no objections or notifications of an intentionto claim be raised in this period, an immunity from seizure certificate would be granted. 5 The certificatewould only be granted when it had been determined that:A. no legitimate claim had been made to the property during the publication period;B. the import of the objects or objects was not illicit; andC. the loan agreement stipulated that the property must be returned to the lender following theexhibition.If refused an immunity certificate as the result of an objection or claim, applicants may re-apply forimmunity should the objection or intention to claim be found to be invalid, but the publicationrequirement will be required to commence again for the full period. The revocation of the immunitycertificate is possible if the information in the application is found to have been provided with theapplicant being aware that this information was false.Questions to considerHow do you foresee the implementation of a model of this type affecting the current operations ofcollection institutions in Australia? What elements of this model do you consider necessary? Are thereany elements included here that you would exclude from a model of operation for immunity fromseizure? Does the eligibility of only public Commonwealth, state and territory collecting institutionspose potential problems? Should universities or private organisations with public access be included?Are the timelines in this model reasonable? Is the potential administration work involved in thehypothetical model acceptable to collecting institutions? Does the capacity exist for institutions topublish details of incoming objects online? Do you see the publication requirement as a possibledeterrent for lenders, in particular private lenders? What, if any, issues do you see being raised from amodel of this type? Do you have a preferred model, or preferred elements to propose? What type ofinformation would form a legitimate claim? Should borrowers and lenders have the right to rebut anypotential claim made?4The exhibiting institution would be required to publish the information on its own website. A list of all objects or collections which are underimmunity applications would also be on the Australian Government website arts.gov.au, with links to the relevant institution’s website. Private lenders,who specifically request that their name not be publically available, can be published as ‘private’; however this information must be provided as part ofthe application for immunity and will be treated as Protected by the Australian Government.5If a legitimate objection or claim is raised in this period, the Minister can refuse the granting of an immunity certificate. This does not prevent theborrowing institution from continuing negotiations of the loan without comprehensive immunity being provided, in the same way they would under thecurrent circumstances.18
Immunity from Seizure for Cultural Objects on Loan - <strong>Discussion</strong> Paper 2011Australia’s Current Legislative FrameworkAppendix AProtection of Movable Cultural Heritage Act 1986The Commonwealth Protection of Movable Cultural Heritage Act 1986 (PMCH Act) commencedoperation on 1 July 1987. The PMCH Act:• gives effect in Australia to the 1970 UNESCO Convention on the Means of Prohibiting andPreventing the Illicit Export and Transfer of Ownership of Cultural Property; and• specifically protects Australia’s movable cultural heritage objects, and supports the right offoreign countries to protect their heritage of movable cultural objects; and• provides temporary exemption from export control for Australian Protected Objects (APOs,which are established under the PMCH Act Regulations) that are being temporarily importedinto Australia for the purposes of an exhibition or sale, through the granting of a Certificate ofExemption. A Certificate of Exemption does not protect objects from all judicial seizure andapplies only to APOs as defined by the PMCH Act, not objects of international or foreignsignificance which are not also APOs. Importantly, Certificates of Exemption granted under thePMCH Act are not a guarantee of an ability to re-export by the applicant, but instead providean exemption from being subject to the PMCH application and determination process, i.e. theyexempt the importer/exporter from being required to apply for an export permit for thatobject, and therefore prevent the refusal of export or that object.Limitations of the PMCH ActThe PMCH Act offers no immunity from other Commonwealth, state or territory law. Any Australianlaw that might affect property such as ownership laws, customs law and the like, may allow the seizureof objects in certain circumstances, for example as evidence in a criminal or customs matter.Foreign States Immunities Act 1985The Commonwealth Foreign States Immunities Act 1985 provides protection to objects owned by aforeign Government/State (i.e. part of a national collection) brought to Australia for publicnon-commercial reasons. There are exceptions to foreign state immunity in proceedings concerningcommercial transactions. This means that if a third party claiming ownership or interest in culturalproperty which was temporarily in Australia brought legal proceedings against the foreign governmentwhich owned that property, and the loan was found to be commercial, the property would not beprotected under this Act. It is possible that loans to Australian collecting institutions would beconsidered commercial transactions in a court of law, and therefore this Act cannot be considered toprovide protective coverage against seizure for objects on loan.19
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