Bills Digest No. 195  1998-99 Protection of Movable Cultural Heritage Amendment Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Protection of Movable Cultural Heritage Amendment Bill 1999

Date Introduced: 3 June 1999

House: House of Representatives

Portfolio: Communications, Information Technology and the Arts

Commencement: Royal Assent or 1 July 1999, whichever occurs later.

 

Purpose

To establish a National Cultural Heritage Account to replace the as yet unfunded National Cultural Heritage Fund. The Account's purpose is to provide public access to objects of cultural heritage value, using money appropriated by the Parliament, as well as any money received from other sources.

 

Background

The first recorded instance of cultural property leaving Australia occurred in 1623, when Jan Carstenz, a Dutch explorer, removed ethnographic items from a Cape York beach.(1) Since that time, the volume of Aboriginal cultural material removed from Australia has been a significant concern of Aboriginal people.(2) Attempts to export other items of cultural heritage, such as Victoria Cross Medals, have also provoked concern about the diminishing of Australian cultural heritage.(3)

Commonwealth legislative protection for movable cultural heritage

The Protection of Movable Cultural Heritage Act 1986 (PMCH Act) regulates the export from Australia of cultural heritage objects, and also provides for the forfeiture of protected objects of cultural heritage illegally exported from other countries and subsequently imported into Australia.(4)

The PMCH Act implements Australia's obligations under the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, to which Australia acceded on 30 January 1990.

Movable cultural heritage is defined in section 7 of the PMCH Act as 'objects that are of importance to Australia, or to a particular part of Australia, for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons'. Section 8 provides for regulations to establish a 'Natural Cultural Heritage Control List'. The Control List defines the categories of objects protected by the Act, and divides objects into Class A and Class B objects. Export permits cannot be granted for Class A objects, but may be granted for Class B objects.

In the past, a number of export permit applications under the Act have been refused,(5) although in the 1997-1998 reporting period, only three applications for permits to export were refused.(6) The Federal Court has held that the refusal to grant a permit to export does not constitute an acquisition for the purposes of paragraph 51(xxxi) of the Constitution.(7)

National Cultural Heritage Fund

Section 25 of the PMCH Act provides for a National Cultural Heritage Fund to facilitate the acquisition of Australian protected objects, as well as to facilitate any purpose prescribed by regulations. The Fund is intended to assist in the transfer of objects which have been refused an export permit from private ownership to public institutions.(8) The Fund is not required to acquire or attempt to acquire an object from an owner who has been refused an export permit under section 10.(9)

Since the PMCH Act was enacted, no appropriation has been made in respect of the Fund. Commonwealth and State and Territory Ministers are reported to have agreed in principle in 1988 that the States and Territories would match the Commonwealth's contributions to the Fund, however in 1992 the States and Territories apparently decided against this course of action.(10)

The Coalition Government's Arts policy for the 1998 federal election campaign, Arts for Australia's Sake, included a commitment to establish the National Cultural Heritage Fund. The policy committed an initial $500,000 to assist collecting institutions to acquire items of cultural heritage significance, with annual 'top-ups' as necessary.(11) The Protection of Movable Cultural Heritage Amendment Bill 1999 is consistent with this election commitment.

 

Main Provisions

Clause 2 provides that the Bill commences on the day it receives Royal Assent or on 1 July 1999, whichever occurs later. This is to ensure that the Bill does not commence before the new accounting and reporting requirements of the recently amended Financial Management and Accountability Act 1997(12) come into force on 1 July 1999.

Schedule 1 amends the Protection of Movable Cultural Heritage Act 1986 (PMCH Act).

Item 1 repeals the definition of 'Fund' in the PMCH Act. Item 2 replaces the definition with a definition of the 'Natural Cultural Heritage Account'. The National Cultural Heritage Account is defined as the Account established by section 25 of the Act.

Item 5 repeals section 25 of the Act, which currently provides for the National Cultural Heritage Fund. It replaces the Fund with the Natural Cultural Heritage Account, and specifies that the Account is a Special Account for the purposes of amendments to the Financial Management and Accountability Act 1997 which will take effect on 1 July 1999. The amendments provide that Special Accounts are accounts within the Consolidated Revenue Fund (CRF). They may be viewed as separate ledgers within the CRF.(13) As of 1 July 1999, section 39 of the Financial Management and Accountability Act will allow money from a Special Account to be invested in authorised investments.

Proposed subsection 25A(1) credits to the Natural Cultural Heritage Account any money appropriated by the Parliament for an outcome of the Department. The Explanatory Memorandum states that the relevant outcome is 'a cultural environment that enriches the lives of all Australians'.(14) Proposed subsection 25A(2) ensures that amounts equal to all money received from a State or Territory or an authority of a State or Territory, as well as money received by way of gift, bequest, and interests on investments made using Account money, are credited to the Account. This amendment addresses the uncertainty under the current provisions of the PMCH Act regarding the status of funds provided to the National Cultural Heritage Fund from sources other than the Commonwealth government.

Proposed section 25B provides that account credits may be spent for the purpose of 'facilitating the acquisition of Australian protected objects for display or safe-keeping'. This purpose is substantively the same as that for the Fund. The Explanatory Memorandum states that 'In practice, it is intended that money given to the Fund will be used to assist cultural organisations in acquiring Australian Class A or Class B objects.'(15) Regulation 11 of the Protection of Movable Cultural Heritage Regulations 1987 currently ensures that payments from the Fund must not be used for the purposes of a private collection. Section 3 of the Act defines 'principal collecting institution' as a public art gallery, public museum, public library or public archives. It is not clear whether the Explanatory Memorandum is referring only to collecting institutions as defined in section 3, or whether the Account is anticipated to benefit a wider range of 'cultural organisations', which would necessitate amendments to the regulations.

Item 7 amends subsection 47(1) so that the obligation to report to the Minister on the administration of the Fund is replaced with an obligation to report on the working of the Act. Section 49 of the Financial Management and Accountability Act requires annual financial statements to be prepared in accordance with orders of the Finance Minister and provided to the Auditor-General.

Item 8 repeals the financial reporting requirements of the Act and replaces them with a requirement to provide a copy of the report on the working of the Act prepared under subsection 47(1) to be laid before each House of Parliament within 15 sitting days of that House after the Minister receives it.

 

Concluding Comments

The painting Bath of Diana was sold to the National Gallery of Australia for $A780,000 after the owner was refused an export permit. This was approximately $A1 million less than the painting's 1989 auction price.(16) This is an indication of the significant amounts of money which may be involved in acquiring items of cultural heritage. $500,000 should be sufficient to cover the start up costs of the National Cultural Heritage Account, but corporate, public, State and Territory donations may be necessary for significant acquisitions.

At present there is no statutory guarantee that any funding provided by the Account will only be made available to organisations which are prepared to follow certain guidelines, or which are public in character. The Protection of Movable Cultural Heritage Regulations 1987 require that the current Fund is used only for the benefit of a 'public institution or authority'. The Explanatory Memorandum refers to assisting 'cultural organisations', which is potentially wider than the eligible bodies set out in the regulations.

 

Endnotes

  1. S. Shearing, 'Protecting Movable Cultural Heritage', Environmental and Planning Law Journal vol. 13, no. 6, 1996, p. 477.

  2. E. Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, 1996, p. 232.

  3. Department of Communications and the Arts, Annual Report on the operation of the Protection of Movable Cultural Heritage Act 1986 and the administration of the Natural Cultural Heritage Fund 1997-98, p. 3. (Hereafter 'Annual Report').

  4. Ibid. p. 1.

  5. Shearing, op. cit., p. 480.

  6. Annual Report, p. 3.

  7. Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 at 185 per Black CJ and Gummow J.

  8. Annual Report, p. 6.

  9. Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 at 185 per Black CJ and Gummow J.

  10. Shearing, op. cit., p. 480.

  11. Arts for Australia's Sake, 18 September 1998, Liberal Party of Australia, http://www.liberal.org.au/election98/policy/arts/arts.html

  12. The Financial Management and Accountability Act 1997 was recently amended by the Financial Management Legislation Amendment Act 1999.

  13. Bob Bennett, 'Financial Management Legislation Amendment Bill 1999', Bills Digest no. 130, Department of the Parliamentary Library, 1998-99.

  14. Explanatory Memorandum, Protection of Movable Cultural Heritage Amendment Bill 1999, p. 3.

  15. Ibid. p. 4

  16. B. Adamovich, 'The Protection of Movable Cultural Heritage and the Waverley System: A Study of the Australian and United Kingdom Export Controls Relating to Cultural Property', Media and Arts Law Review vol. 3, no. 1, 1998, p. 8.

 

Contact Officer and Copyright Details

Fiona Walker
8 June 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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