1Short title
This Act may be cited as the Protection of Cultural Objects on Loan Act 2013.
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Bill homepage (APH)This Act may be cited as the Protection of Cultural Objects on Loan Act 2013.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 14 March 2013 |
2. Sections 3 to 21 | A single day to be fixed by Proclamation. However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 14 September 2013 |
This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
The main object of this Act is to encourage lenders to lend objects for temporary public exhibition in Australia under arrangements involving certain institutions.
This Act seeks to achieve that object by limiting the circumstances in which ownership or physical possession, custody or control of the objects in Australia can be affected by:
legal proceedings; or
the enforcement of a judgement or order of a court; or
an action taken under a law of the Commonwealth, a State or a Territory; or
the operation of such a law.
The following is a simplified outline of this Act:
This Act deals with objects that are normally in a foreign country but are imported into Australia on loan for temporary public exhibition under arrangements made by certain institutions approved by the Minister.
While the objects are in Australia, Part 2 limits the circumstances in which lenders, exhibition facilitators, exhibiting institutions and people working for any of them can lose ownership or physical possession, custody or control of the objects because of:
legal proceedings in Australian or foreign courts; or
the exercise of certain powers (such as powers of seizure) under Commonwealth, State and Territory laws; or
the operation of such laws.
Part 3 deals with the approval of institutions by the Minister, and the end of such approval.
Part 4 deals with miscellaneous matters.
In this Act:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
Australia, when used in a geographical sense, includes the external Territories.
borrowing institution means an organisation (whether a person or not) that:
collects and publicly exhibits in Australia objects that are of interest for archaeological, artistic, ethnological, historical, literary, scientific or technological reasons; and
is either:
established by a law of the Commonwealth, a State or a Territory, except a law prescribed by regulation for the purposes of this subparagraph; or
prescribed by regulation as a borrowing institution.
For prescription by class, see subsection 13(3) of the Legislation Act 2003.
exhibiting institution for an object means the borrowing institution that has made arrangements for the temporary public exhibition of the object in Australia.
exhibition facilitator for an object means a person who:
has a temporary loan arrangement for the object with a lender of the object; and
has a temporary loan arrangement for the object with:
an exhibiting institution for the object; or
the parent of such an institution; and
is not a lender of the object, an exhibiting institution for the object or the parent of such an institution; and
carries on a business (whether or not for profit) of making arrangements for temporary public exhibitions in Australia of objects from collections outside Australia.
heritage law means a law of the Commonwealth, a State or a Territory that relates to heritage, whether or not the law relates to:
heritage of a particular community, such as Aboriginal or Torres Strait Islander heritage; or
heritage of a particular kind, such as:
objects associated with historic shipwrecks; or
records of government; or
other archival material.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
lender of an object means a person who:
is:
an individual who is not ordinarily resident in Australia; or
a corporation incorporated by or under the law of a foreign country; or
a body politic of a foreign country (or part of a foreign country); and
is a party to a temporary loan arrangement (the head arrangement) for the object with a borrowing institution, the parent of a borrowing institution or a person who:
has, or may reasonably be expected to have in future as a result of the head arrangement, a temporary loan arrangement for the object with a borrowing institution or the parent of a borrowing institution; and
is not an exhibiting institution for the object or the parent of such an institution; and
carries on a business (whether or not for profit) of making arrangements for temporary public exhibitions in Australia of objects from collections outside Australia; and
would reasonably be expected to have physical possession, custody or control of the object outside Australia for the period of the loan under the head arrangement, apart from that arrangement.
loan of an object includes an arrangement for:
the temporary transfer of the physical possession, custody or control of the object directly or indirectly from one person to another person, whether or not any consideration is provided for the transfer; and
the transfer of the physical possession, custody or control of the object directly or indirectly from the other person back to the first person.
parent of a borrowing institution that is not a person means:
if the institution is a Department of State, or part of such a Department, of the Commonwealth, a State or a Territory—the Commonwealth, State or Territory (as appropriate); or
if the operations of the institution are a distinct part of the operations of a body corporate—that body.
protected person for an object means:
a lender of the object; or
an officer, employee or agent of a lender of the object who accompanies the object for some or all of the time it is on loan; or
an exhibition facilitator for the object, an exhibiting institution for the object or the parent of such an institution; or
a person who is:
an officer, employee, agent or delegate of an exhibition facilitator for the object; or
an officer, employee, agent or delegate of an exhibiting institution for the object or the parent of such an institution; or
a person engaged by a lender of the object, an exhibition facilitator for the object or an institution or parent described in paragraph (c) to do any of the following:
transport the object from one place in Australia to another or between Australia and a foreign country;
carry out conservation work on the object in Australia;
store the object in Australia;
provide security for the object while it is being transported between Australia and a foreign country or while it is in Australia;
provide a service that relates to the object and is prescribed by regulation; or
an officer, employee, agent or delegate of a person described in paragraph (e).
temporary loan arrangement for an object means an arrangement for the loan of the object for temporary public exhibition of the object in Australia under arrangements made by a borrowing institution.
This Act binds the Crown in each of its capacities.
This Act extends to every external Territory.
This Part applies to an object if:
the object is imported into Australia on loan under a temporary loan arrangement between a lender of the object and either or both of the following:
an exhibiting institution for the object or the parent of such an institution;
an exhibition facilitator for the object who has an arrangement with either an exhibiting institution for the object or the parent of such an institution; and
the object is imported only or mainly for the purpose of temporary public exhibition of the object in Australia under arrangements made by the institution; and
the institution is approved under Part 3 when the object is imported; and
one or more of the following circumstances exist:
the loan is in the course of trade or commerce between Australia and a foreign country;
the lender of the object is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution;
the institution, the parent of the institution or the exhibition facilitator is a corporation to which paragraph 51(xx) of the Constitution applies or a corporation established by a law of the Commonwealth or a Territory;
the parent of the institution or the exhibition facilitator is the Commonwealth or a Territory;
the public exhibition of the object is to occur, is occurring or has occurred in a Territory;
the public exhibition of the object is to occur, is occurring or has occurred in a place acquired by the Commonwealth for public purposes within the meaning of paragraph 52(i) of the Constitution;
this Part is appropriate and adapted to giving effect to Australia’s obligations under an agreement that is between Australia and one or more foreign countries or international organisations and that is relevant to the loan of the object by the lender; and
the import does not contravene a law of the Commonwealth prescribed by regulation for the purposes of this paragraph; and
the object is not a Class A object as defined in the Protection of Movable Cultural Heritage Act 1986 when the object is imported; and
the object is not specified in a written notice that:
was given by the institution or its parent to the Minister before a time that was prescribed by regulation and was before the object is imported; and
was in a form approved by the Minister; and
has not been withdrawn before the object is imported.
A law is to be prescribed for the purposes of paragraph (1)(e) only if it gives effect to an international agreement: see section 21.
This Part ceases to apply to the object:
when one of the following events occurs:
the end of 24 months starting on the day the object is imported into Australia;
the export of the object from Australia; or
if, before an event described in paragraph (a) occurs, the Minister declares by notice published on the Department’s website that this Part ceases to apply to the object at a time that:
is worked out in accordance with the declaration; and
is at least 24 months after the day the object is imported into Australia;
at the time worked out in accordance with the declaration.
The Minister may make a declaration for the purposes of paragraph (2)(b):
only on application by the exhibiting institution; and
only if the Minister is satisfied that exceptional circumstances justify the making of the declaration.
A declaration made under subsection (3) is not a legislative instrument.
Certain movements of objects are not import or export
For the purposes of this section, the object is neither imported into Australia nor exported from Australia merely because the object is moved between an external Territory and either a State or an internal Territory (whether the movement is to or from the external Territory, State or internal Territory).
Actions in personam
Proceedings for an action in personam relating to the object cannot be started against a protected person for the object.
If such proceedings have been started before this Part applies to the object, a judgement or order made in the proceedings cannot be enforced while this Part applies to the object: see section 10.
Actions in rem
Proceedings for an action in rem relating to the object cannot be started.
If such proceedings have been started before this Part applies to the object, a judgement or order made in the proceedings cannot be enforced while this Part applies to the object: see section 10.
Exception for protected persons starting proceedings
Subsections (1) and (2) do not prevent a person who is a protected person for the object because of a particular paragraph of the definition of protected person in section 5 from starting proceedings against a person who is a protected person for the object because of that paragraph, or a later paragraph, of that definition.
An exhibiting institution can start an action against a person it engages to transport the object, because:
the exhibiting institution is a protected person because of paragraph (c) of the definition of protected person; and
the person engaged to transport the object is a protected person because of paragraph (e) of that definition.
Exception for certain proceedings
Subsections (1) and (2) do not apply to:
proceedings under the Proceeds of Crime Act 2002; or
proceedings prescribed by regulation for the purposes of this subsection.
This section applies to starting of proceedings in any way
This section applies to the starting of proceedings in a federal court or a court of a State or Territory by claim, cross‑claim or otherwise.
An act cannot be done in relation to the object to enforce a judgement or order of a federal court or a court of a State, Territory or foreign country that:
is a judgement or order in personam against a protected person for the object; or
is a judgement or order in rem relating to the object.
Exception for some foreign judgements and awards
Subsection (1) does not prevent an act from being done:
under Part 2 of the Foreign Judgments Act 1991 to enforce a judgement of:
a superior court of a country in relation to which that Part extends; or
an inferior court to which that Part extends; or
under Part 7 of the Trans‑Tasman Proceedings Act 2010 to enforce a judgement of a court of New Zealand; or
under Part II of the International Arbitration Act 1974.
Exception for judgements and orders favouring protected persons
Subsection (1) does not prevent an act from being done to enforce a judgement or order in favour of a protected person for the object, unless:
that person is a protected person for the object because of a particular paragraph of the definition of protected person in section 5; and
the judgement or order is against a person who is a protected person for the object because of an earlier paragraph of that definition.
Exception for certain other judgements and orders
Subsection (1) does not apply to:
an order made under the Proceeds of Crime Act 2002; or
a judgement or order made in proceedings prescribed by regulation for the purposes of this subsection.
The object cannot be seized under a law of the Commonwealth, a State or a Territory.
Subsection (1) does not prevent seizure under:
Part IAA of the Crimes Act 1914; or
Part 3‑5 of the Proceeds of Crime Act 2002; or
a law of the Commonwealth, a State or a Territory that gives a police officer (however described) a power of seizure and does not give that power to anyone other than a police officer; or
a law of the Commonwealth, a State or a Territory prescribed by regulation for the purposes of this subsection.
The object cannot be forfeited because of a law of the Commonwealth, a State or a Territory.
Subsection (1) does not prevent forfeiture (or the possibility of forfeiture) because of:
Part IAA of the Crimes Act 1914; or
Part 2‑2 or 2‑3 of the Proceeds of Crime Act 2002; or
a law of the Commonwealth, a State or a Territory prescribed by regulation for the purposes of this subsection.
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