|
Navigation: Previous Page | Contents | Next Page
Protection of
Cultural Objects on Loan Bill 2012
Introduced into the
House of Representatives on 28 November 2012
Portfolio: Regional Australia, Local Government, Arts and Sport
Committee view
1.1
The committee notes that excluding the jurisdiction of Australian courts
represents a significant restriction on the right to access to justice under
article 14 of the International Covenant on Civil and Political Rights (ICCPR).
1.2
Before forming a view on the compatibility of the bill with human rights
the committee seeks clarification from the Minister as to why less restrictive
approaches have not been adopted and how these measures are consistent with
Australia's obligations under other international conventions relating to the
return of cultural objects.
Overview
1.3
The bill provides that where cultural objects are in Australia on
temporary loan from overseas, certain legal proceedings cannot be brought
against those objects. This provides protection in relation to legal actions
brought to recover property that was alleged to have been unlawfully obtained
by the overseas lender, to seize property that may have been the subject of an
order before an overseas court, or enforcement proceedings to seize the
property in satisfaction of a debt or other liability, as well as other
actions.
Compatibility with human rights
1.4
The bill is accompanied by a detailed statement of compatibility which
identifies a number of rights which may be promoted or limited by its
provisions, in particular the right to self-determination and the right to a
fair hearing.
1.5
At present, pursuant to the Foreign State Immunity Act 1985,
certain actions may not be brought before Australian courts in relation to
cultural objects owned by foreign States which are in Australia on temporary
loan or for other purposes. However, the bill significantly extends this
protection by providing for immunity from suit in a wide range of cases in
which overseas cultural objects are on loan in Australia.
Equality and non-discrimination
1.6
The bill proposes to create a category of persons who may not enforce
their rights before Australian courts in relation to particular classes of
moveable property. This engages the right to equal protection of the law and
non-discrimination on the basis of other status guaranteed by article 26 of the
ICCPR, equality and non-discrimination in the enjoyment of the right of access
to the courts guaranteed by article 14(1) of the ICCPR, as well as
non-discrimination in the enjoyment of other rights. In order for the
differential treatment of different categories of potential litigants to be
consistent with these rights, the measures adopted must pursue a legitimate aim
and have an objective and reasonable justification. These requirements overlap
substantially with what must be shown if a restriction on the right of access
to court under article 14(1) of the ICCPR is to be justified.
Right to a fair hearing in the
determinations of rights and obligations in a suit at law
1.7
Under international human rights jurisprudence the guarantee of the right
to a fair hearing in ‘the determination of one’s rights and obligations in a
suit at law’ contained in article 14(1) of the ICCPR has been held to guarantee
not just fair procedures when a case is before a court or tribunal, but also
the right to bring proceedings before a court in relation to such rights (the
so-called ‘right of access to court’). The rights which are encompassed by the
guarantee include rights to property, and to enforce the judgment of a court by
executing against the assets of a person.
1.8
Although article 14(1) does not expressly permit limitations on the
enjoyment of the right, international jurisprudence accepts that some
limitations may be placed on the enjoyment of the right of access to court. Any
limitation must pursue a legitimate aim, must be reasonable and a proportionate
measure to achieve the aim and must not impair the essence of the right.
1.9
The bill pursues what the statement of compatibility states is a
legitimate aim, namely the facilitation of the loan of overseas cultural
objects to Australian institutions for purposes which include exhibitions and
research. The statement notes that this promotes the right of everyone to
participate in cultural life guaranteed in the International Covenant on
Economic, Social and Cultural Rights (ICESCR).[1]
The bill also seeks to support activities such as major international
exhibitions that have economic benefits for the community.
1.10
The justification offered for the removal of the right to access court
for a particular category of potential litigants appears in a number of
statements in the explanatory memorandum (including the statement of
compatibility) and in the Minister’s second reading speech, which states that
it is necessary to ensure that overseas lenders continue to be prepared to lend
objects to Australian institutions and that Australian institutions have been
experiencing difficulties in this respect.
1.11
For example, the Minister, in his second reading speech listed a number
of recent exhibitions with exhibits from overseas and noted:
The ability to borrow these objects enriches the cultural
experience for Australian audiences, draws visitors from far and wide, and
delivers significant economic benefits.
...But, despite the popularity of these exhibitions, in the
past 10 years it has become increasingly difficult for Australia's major
galleries, libraries and museums to secure overseas loans. Australia, unlike
numerous other countries, does not have comprehensive legislation providing
protection for cultural objects on loan from overseas...
The introduction of this legislation will align Australia
with an emerging international standard of providing protection for cultural
objects on loan from overseas.
It will reassure foreign lenders that Australia is a secure
destination for loans and enable our great cultural institutions to
successfully compete for world-class exhibitions.[2]
1.12
The statement of compatibility states that the bill will enhance
cultural life in Australia by addressing a significant obstacle Australia’s
major museums and galleries face in securing the loan of foreign cultural
objects as 'the absence of more comprehensive legislation has made it
increasingly difficult for institutions to secure loans as they are not able to
provide assurances to lenders that objects will be returned at the end of the
loan period'. It accepts that the bill provides a temporary limitation on the
right of a person to commence legal action or enforce a judgment of a court,
but states:
The degree of limitation on other objects is considered proportionate
to the objective of the Bill as the limitation on the ability to take action
while the object is in Australia is necessary to achieve the stated objective
of enhancing access to cultural objects. The limitation on the ability to take
action through the Australian legal system, for the limited period of the loan,
has been balanced against the public interest of the significant social,
economic and cultural benefits that can be delivered as a result of Australian
institutions being able to secure loans.[3]
1.13
There is no further information provided by the supporting documentation
about the extent of difficulties currently being experienced by Australian
institutions and what existing arrangements are used to permit significant
international exhibitions to be brought to Australia. There is also no further
information about why these existing arrangements are inadequate for future
exhibitions and no information about the number or extent of claims lodged in
Australia or elsewhere in relation to cultural objects on loan before the
courts of the borrowing jurisdiction.
1.14
There was a Discussion Paper on this subject issued by the Department of
Prime Minister and Cabinet in 2011,[4]
however, there is no mention of this or the results of the ensuing consultations.
The Minister’s second reading speech noted that there was ‘strong support for
Commonwealth legislation on this issue’ which extended ‘from the collections
sector to state and territory cultural ministers and to the tourism and
hospitality sectors. It reflects an acknowledgement of the direct benefits that
major international exhibitions deliver to the Australian economy.’ There is
no reference to any concerns being expressed by groups whose rights might be
restricted by the proposed measure.
1.15
The 2011 Discussion Paper outlined a number of different models
for providing protection of cultural objects on loan, including legislative
schemes adopted by other countries which are less intrusive on the right to
access the courts than the framework proposed in this bill. The model adopted
by the bill is more restrictive of the rights of potential claimants than the
legislation in Switzerland, Austria, Belgium, the United States, France,
Germany, a number of Canadian provinces, and Israel – the majority of the jurisdictions
referred to by way of comparison in the Discussion Paper.[5]
1.16
The model adopted is closest to that adopted in the United Kingdom,
where loans are subject to a publication requirement, so that a museum or
gallery must publish details of the object to be published online for a period
before and after entry into the UK.[6]
Institutions are also required to provide information to persons who maintain,
not unreasonably, they may have a claim to the object in question. These
arrangements permit notice of claims to be given to the institutions concerned.
Clause 21(3)(c) of the bill provides that that regulations may be made
requiring borrowing institutions to publish information about objects proposed
to be lent to them. This suggests that publication requirements similar to
those which exist in the United Kingdom will be adopted in Australia; however,
this is not explicitly stated in the explanatory memorandum.
1.17
Australia is a party to the UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership
of Cultural Property 1970. This Convention ‘covers a broad range of issues
aimed at protecting cultural objects, including obliging all parties to take
appropriate steps to recover and return stolen or illicitly exported objects,
primarily through diplomatic channels.’[7]
The 2011 Discussion Paper also noted that Australia was considering possible
accession to the to the UNIDROIT Convention on Stolen or Illegally Exported
Cultural Objects 1995 and noted that ‘[a]ny Australian immunity from seizure
provisions would also need to be balanced with the UNIDROIT Convention, should
Australia move to become a party to it.’[8]
1.18
The committee:
(a) notes that the exclusion from the jurisdiction of the Australian
courts of potential claims relating to the cultural objects in Australia
represents a significant restriction on the right of persons to access courts
and tribunals under article 14(1) of the ICCPR, and requires a clear
demonstration of the need for and proportionality of the measures proposed in
the pursuit of the legitimate objective of facilitating the loan of cultural
objects to Australian institutions;
(b) notes that a number of overseas jurisdictions faced with the same
issue have adopted legislation which appears to be less restrictive of the
right of access to court than the system proposed by the bill;
(c) seeks clarification as to why one of these less restrictive
approaches was not adopted; and
(d) seeks clarification of the consistency of the proposed measures with
Australia’s obligations under other international conventions relating to the
return of cultural objects, taking into account that the purpose of those
conventions is also to promote the enjoyment of various human rights, including
the rights of Indigenous peoples and national minorities, and the right to
property.
Navigation: Previous Page | Contents | Next Page
Top
|