Australia: New laws for trading in cultural objects

In Australia, the Ministry for Arts is inviting public comment on proposed new laws to cover the import and export of cultural objects.

A Review led by Shane Simpson has proposed a simpler legislative framework than that currently in place; new standards to define objects being regulated; a risk-based approach to assessment processes; and clearer guidance to decision-makers throughout the process. In his Position Paper, Mr Simpson presented a new model for the regulation of cultural material based on research and consideration of submissions made by the sector to past reviews. “Such legislation must balance the public interest in protecting cultural material with the public and private interests of property ownership and the maintenance of a legitimate trade in such material,” Mr Simpson said. “In many respects, the legislation has not been able to retain that balance.” Minister for the Arts, Senator George Brandis said the Protection of Movable Cultural Heritage Act had not been substantially amended since its enactment more than 25 years ago. [...] Senator Brandis said the laws also provided for the return of foreign cultural property that had been illegally exported from its country of origin. "The Review intends to provide improved clarity on the processes and requirements of those importing and exporting cultural objects in Australia,” Senator Brandis said.

The Position Paper can be accessed at this PS News link and an online Survey seeking views can be found here. This may be read with the AustralianGovernment’s Australian Best Practice Guide to Collecting Cultural Material, the measures of which most foreign collectors do not know (let alone emulate).

The section of interest vis a vis the antiquities trade is 'Part C: Protection of foreign cultural material', pp 65-90.

It begins with setting out the current provisions of the act,

over the decades some shortcomings have become apparent and , as the Act has not been meaningfully amended, Australia’s legal framework has remained stagnant in the face of rapid change in the international trade in cultural material. Since 1987, the volume and nature of this trade has increased enormously and with the introduction of the UNIDROIT Convention 1995 and the Second Protocol to the Hague Convention 1954, the international framework has also shifted. Issues identified include the lack of clarity and transparency around the processes for demonstrating that objects have been illegally exported and the out - dated provisions relating to enforcement mechanisms. 

Would that every country would revise their antiquities legislation every two and a half decades to take into account changes in the market. The document proposes five key principles that should be at the centre of the new model for the protection of foreign cultural material under Australian law, clarity; due diligence (which is defined p. 76); transparency; appropriate responsibility; and consolidation of Australian legislation. Dealers and collectors will take note of one aspect of the new proposal, there is no 'presumption of innocence', but a presumption that further investigation is necessary:

Under the current provisions, a request for seizure must come from the country of origin of the material. This has proved to be a weak point in Australia’s ability to combat illicit trafficking in these objects. In an increasingly globalised world, trafficked commodities may move through a variety of jurisdictions to mask their point of origin, before being sold in Western countries. The proposed model should include a power to seize cultural objects that appear to be illegally exported or stolen without the need to wait for a formal request from a foreign government . This will permit them to be 'safeguarded' for a time - limited period (for example, up to three months and provide an opportunity for further investigation and discussions with both the relevant foreign government and the Australian owner. 

The section ends with a consideration of ethical principles relating to collecting cultural property.

Well worth a thorough read to see where current trends are heading.