Leiboff, Dr Marett (38 KB PDF)

More documents

Recommendations

Info

Submission to the Review of the Protection of MovableCultural Heritage LegislationDr Marett LeiboffFaculty of LawUniversity of WollongongIntroductionThe purpose of my submission is to point out the effect court and tribunal decisions have hadon the policy intentions of the Protection of Movable Cultural Heritage Act 1986 (‘the Act’) andthe Protection of Movable Cultural Heritage Regulations 1987 (‘the regulations’) with respect tothe operation of its ‘cultural significance provisions’. 1 In the only Federal Court decisionconcerning the legislation, Black CJ and Gummow J in Waterhouse v Minister for the Arts andTerritories, 2 held that ‘the Act operates upon established common law concepts of ownershipand possession of chattels’. 3 This principle was taken forward into the leading AdministrativeAppeals Tribunal (‘AAT’) decision of Re Truswell and Minister for Communications and theArts, 4 which imposed a bifurcated system - physical objects would be treated as tangibles (orchattels) while their meaning or value would be treated as intangibles (analogous to intellectualproperty law). 5 Whether used in practice or not, this case added a layer of interpretation tothe cultural significance provisions which does not accord with contemporary practices used toassess the cultural significance of objects, and which, as I have argued elsewhere, has thepotential to allow objects to be misread and misinterpreted. 6It is also apparent that the web of interrelated provisions established by the ‘culturalsignificance provisions’ is complex and if used literally, imposes multiple layers of interpretationthat had not been intended by the framers of the structure, 7 who intended that the List wouldbe used to decide an object’s relative cultural significance. 8 Yet the cases tells us the locus of1 I use the term the ‘cultural significance provisions’ to refer to the web of provisions - sections 7, 8 and 10 of theAct and the National Cultural Heritage Control List located in Schedule 1 of the regulations (‘the List’) decidewhether objects should or should not be granted export permits2 (1993) 119 ALR 89.3 (1993) 119 ALR 89, 95.4 (1996) 42 ALD 2755 Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275, 294 [119] – [120].6 For a fuller exploration of this issue see Marett Leiboff ‘Law's Empiricism of the Object: How Law RecreatesCultural Objects in its Own Image’ (2007) 27 Australian Feminist Law Journal 23.7 See especially the twin cases of Re Jacklin and the Minister for the Arts and the Centenary of Federation [2001]AATA 416 and Re Jacklin and the Minister for the Arts and the Centenary of Federation [2001] AATA 4178 Protection of Movable Cultural Heritage Bill 1985 (Cth) Explanatory Memorandum, Clause 8: National CulturalHeritage Control List:2Dr Marett LeiboffSubmission to the Review of the Protection of Movable Cultural Heritage Legislation
decision-making about the status of an object occurs through the application of sections 7 andsection 10 (6) alone; that the List only has a function as a preliminary filter to establish if theobject is then to be assessed against sections 7 and section 10 (6). 9 In particular, ReTruswell and Minister for Communications and the Arts, 10 stands for the proposition that theList is used to merely identify the object as a physical type, 11 meaning that the List is merely adescriptive listing of objects. It only acts as a first step to the object’s further assessment undersection 10 (6). 12 Thus, it is possible for mistakes to be made because the locus of decisionmakingshifts between too many platforms.For this reason, I have argued that the only way to correct the problems created through thesedecisions is to reframe how cultural significance is ascribed and assessed under the legislation,by replacing the multi-platform method with an accepted form of cultural significanceassessment, 13 as adapted from time to time. Thus my submissions under each of the followingheadings are made with this position in mind.The List will be based on the categories given in clause 7 and will set out for each category those criteriawhich will be used to determine whether or not an object falling within that category may be judged to beof such importance that its loss would significantly diminish the cultural heritage of Australia.(emphasisadded)9 Re Best and Minister for the Arts and Administrative Services (1994) 36 ALD 343; Re J B Hawkins Antiques andMinister for Communications and the Arts (1995) 38 ALD 323; Re Blake and Brain and Minister forCommunications and the Arts (1995) 38 ALD 333; Re Truswell and Minister for Communications and the Arts(1996) 42 ALD 275; Re Hawkins and the Minister for the Arts and Centenary of Federation [2001] AATA 304; ReJacklin and the Minister for the Arts and the Centenary of Federation [2001] AATA 416; Re Jacklin and theMinister for the Arts and the Centenary of Federation [2001] AATA 417; Re Hooper and Minister, Department ofEnvironment and Heritage [2005] AATA735.10 Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275, 291 - 292 [106] – [107].11 Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275, 291 [106].12 Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275, 291 - 292 [106] – [107].13 Jacklyn Marett Leiboff, Reconstructing the Role of Cultural Significance in the Protection of Movable CulturalHeritage Act 1986 (Cth) (2004), unpublished PhD thesis,Chapter 7http://www4.gu.edu.au:8080/adt-root/public/adt-QGU20061101.094917/index.html3Dr Marett LeiboffSubmission to the Review of the Protection of Movable Cultural Heritage Legislation
Page 1: BY EMAILPh: 02 4221 4050Fax: 02 422
Page 5 and 6: 3. Significance and the PMCH Regula

Leiboff, Dr Marett (38 KB PDF)

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?