Discussion paper (PDF - 459 KB)

Immunity from Seizure for Cultural Objects on Loan - Discussion Paper 2011Immunity from Seizure in the Australian ContextThe Australian Government is aware that Australia’s current lack of comprehensive immunity fromseizure legislation is a matter of growing concern in the collecting sector. The issue has been raisedwith the Australian Government by a number of collecting institutions and professional bodies acrossAustralia over the past 18 months. Feedback from Australian collecting institutions has suggested thatthey are experiencing increasing reluctance by overseas institutions and individuals to lend objectsfor exhibition in Australia, due to concerns about their potential seizure by third party claimants. Suchclaims may relate to objects that are nationally significant and could trigger attempts to have themremain permanently in Australia or to foreign culturally significant objects that may be claimed to havebeen illegally acquired from their original owners, illegally exported from their country of origin orclaimed as part of an unrelated legal dispute (or judgment against the owner in a foreign court) withthe current owner, the lending institution or the country in which the lending institution is located.To respond to the concerns of lenders, some Australian collecting institutions offer ‘letters of comfort’which outline the Australian legislative framework applicable to objects on loan. However, feedbackfrom the collecting sector suggests that lenders are increasingly finding these insufficient, and areasking for immunity guarantees, as well as raising questions about the limitations of the protectionsoffered by existing provisions.Current legislative frameworkAustralia’s existing legislative measures offering protection from seizure apply only in specific andlimited circumstances. These are established by the Protection of Movable Cultural Heritage Act 1986(Cth) (PMCH Act), and the Foreign States Immunities Act 1985. Summaries of these measures can befound at Appendix A.Impact on loansThe galleries, libraries, archives and museums sector has argued that the absence of comprehensiveimmunity legislation in Australia is hampering the capacity of Australian institutions to compete forloans when such legislation exists in a growing number of other countries.The Australian Government has been provided with several instances in which the request for the loanof a particular object or work has been refused due to Australia’s lack of immunity provisions, or whereexpected works have not been received by a borrowing institution due to the lenderwithdrawing the loan at the last minute. In recent years, the request for the provision of immunityprotection by overseas lenders has increased significantly, with many Australian collecting institutionsfinding it increasingly difficult to seek and proceed with loans.5