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CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
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.
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.
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.
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.
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.
-
- S. Shearing, 'Protecting Movable Cultural Heritage',
Environmental and Planning Law Journal vol. 13, no. 6,
1996, p. 477.
- E. Evatt, Review of the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984, 1996, p. 232.
- 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').
- Ibid. p. 1.
- Shearing, op. cit., p. 480.
- Annual Report, p. 3.
- Waterhouse v Minister for the Arts and Territories
(1993) 43 FCR 175 at 185 per Black CJ and Gummow J.
- Annual Report, p. 6.
- Waterhouse v Minister for the Arts and Territories
(1993) 43 FCR 175 at 185 per Black CJ and Gummow J.
- Shearing, op. cit., p. 480.
- Arts for Australia's Sake, 18 September 1998, Liberal
Party of Australia,
http://www.liberal.org.au/election98/policy/arts/arts.html
- The Financial Management and Accountability Act 1997
was recently amended by the Financial Management Legislation
Amendment Act 1999.
- Bob Bennett, 'Financial Management Legislation Amendment Bill
1999', Bills Digest no. 130, Department of the
Parliamentary Library, 1998-99.
- Explanatory Memorandum, Protection of Movable Cultural
Heritage Amendment Bill 1999, p. 3.
- Ibid. p. 4
- 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.
Fiona Walker
8 June 1999
Bills Digest Service
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ISSN 1328-8091
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