Australian Cultural Property law Impotent?

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The federal government in Australia (The "Department of Regional Australia, Local Government, Arts and Sport" [sic]) is now considering changing the legislation designed to prevent the transfer of ownership of looted cultural artefacts. Legal experts say the existing legislation is unworkable following a recent Federal Magistrates Court judgment. The case concerns a dealer mentioned on this blog previously. The Australian Protection of Movable Cultural Heritage Act includes a provision for inspectors to seize artefacts that their countries of origin have deemed to be culturally significant and prohibited from export.

Federal officers raided Melbourne's BC Galleries three times this year at the request of the Chinese and Phillipine governments, seizing 43 items believed to be of dubious providence. They included ceramic and bronze sculptures from the Han, Qi and Tang dynasties and a human skull [...] that was mounted as a trophy by Filipino head hunters.

So more trading in human remains by antiquity dealers.

But BC Galleries took action against the federal government in relation to nine of the confiscated items, claiming they had been legally imported from Hong Kong, and that it was impossible to prove they had originated within current Chinese borders. The federal magistrate Grant Riethmuller found the federal government was unable to establish on the balance of probabilities that the objects were liable to be forfeited, and they were returned to the gallery in August [...] A criminologist who specialised in the trade of antiquities, Duncan Chappell, said the judgment meant it would now be difficult for federal officers to carry out such actions. The ruling placed the onus of proof on the federal government to show the items were illegally exported and not on the person from whom the items were seized, he said. ''It means that the act as it stands is almost unworkable,'' said Professor Chappell, who gave evidence for the government. [...] BC Galleries dealer, Francesco Botterio [recte Bottaro PMB], declined to comment.

This was a blow to the Australian authorities, who said that it was the first time that the section of the act had been tested in court, and they were disturbed by the prospect that the laws might be impotent. Over the past twelve years, according to Arts Minister, Simon Crean, there had been 19 seizures of illicit cultural goods that had not been challenged in the courts (he apparently thinks that's good - see here for one example also from Melbourne). Even in this last case: ''It's important to point out that [...] of the 43 pieces that were seized, 34 were successfully returned to their country of origin' (he apparently thinks that is good too).


Harriet Alexander, 'Gallery win sends looted cultural artefacts law back to the drawing board', Canberra Times November 22, 2012

Vignette: kangaroo legislation for portable antiquities.