Publications

Reports - Operation of the Protection of Movable Cultural Heritage Act 1986

• Download the Annual Report as a PDF file
• Purpose of the Act
• UNESCO Convention
• National Cultural Heritage Control List
• Liaison with Australian Customs Service
• National Cultural Heritage Account
• Export permit applications
• Certificates of exemption
• Refusal of export permits
• National Cultural Heritage Committee
• Register of Expert Examiners
• Review of the Protection of Movable Cultural Heritage Act, Regulations and administration
• Illegal trade in cultural material and overseas requests for return of material illegally exported from the country of origin
• Appendix I: Summary of export applications and assessments 2002-03
• Appendix II: Export permits issued in 2002-03

This annual report is prepared in accordance with section 47 of the Protection of Movable Cultural Heritage Act 1986 and covers the operation of the Act from 1 July 2002 until 30 June 2003.

Purpose of the Act

The Protection of Movable Cultural Heritage Act regulates the export of cultural heritage objects from Australia. The purpose of the Act is to protect, for the benefit of the nation, objects which if exported would significantly diminish Australia's cultural heritage. The Act also includes provisions that allow Australia to respond to an official request by a foreign government to return objects that have been illegally exported from their country of origin.

The Act defines certain heritage objects as 'Australian protected objects' and implements a system of export permits. Some Australian protected objects of Aboriginal, military heritage and historical significance cannot be granted a permit for export under any circumstance. Other Australian protected objects may be exported provided a permit or certificate has been obtained. Permits are granted by the responsible Minister, currently the Minister for the Environment and Heritage, on the advice of the National Cultural Heritage Committee and expert examiners. Heritage objects located overseas may also be defined as Australian protected objects under the Act, and a certificate of exemption may be issued for such an Australian protected object to enter Australia and return overseas without restriction.

UNESCO Convention

There are 100 states party to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970). The Act was passed as the necessary implementing legislation prior to Australia's accession to the convention, which occurred on 30 January 1990.

National Cultural Heritage Control List

The National Cultural Heritage Control List sets out the categories of objects classed as Australian protected objects and the criteria defining each of these categories. These criteria include historical association, cultural significance to Australia, representation in an Australian public collection, age and financial thresholds.

The Control List includes Class A objects which cannot be granted a permit for export and Class B objects that may be granted a permit for export.

Class A objects for which a permit cannot be granted include:

• some of the most significant items of Aboriginal and Torres Strait Islander heritage including bark and log coffins, human remains, rock art, dendroglyphs (carved burial and initiation trees), and sacred and secret ritual objects;
• Victoria Crosses awarded to Australian recipients; and
• the objects comprising the suit of armour worn by Ned Kelly at the event known as the siege of Glenrowan in 1880.

Class B objects which may be exported subject to a permit include:

• archaeological objects;
• objects of Aboriginal and Torres Strait Islander heritage not covered under Class A;
• natural science objects;
• objects of applied science or technology;
• objects of fine or decorative art;
• objects of documentary heritage;
• numismatic objects and medals not covered under Class A;
• philatelic objects; and
• objects of historical significance not covered under Class A.

Liaison with Australian Customs Service

The Department continues to work closely with the Australian Customs Service to ensure compliance with the Act. A number of inquiries were undertaken in respect of objects being imported and exported.

National Cultural Heritage Account

The National Cultural Heritage Account was established under section 5 of the Protection of Movable Cultural Heritage Amendment Act 1999 and in accordance with the regulatory requirements of the Commonwealth Financial Management and Accountability Act 1997. Its purpose is to facilitate the acquisition of Australian protected objects for display or safekeeping.

A total of $308 000 was allocated to the account in 2002-03 and the account will be maintained at a level of $500 000 through annual top-ups as necessary.

Of the three funding applications that were under consideration at 30 June 2002 two were withdrawn. Funding of $125 000 was provided to the South Australian Museum to assist in the acquisition of Master Blackburn's Starter and Cosh.

Two applications were received in 2002-03. One was withdrawn; $18 000 was provided to Museum Victoria to assist with the acquisition of a Cliff and Bunting Steam Traction Engine c.1908.

Export permit applications

• Permits for permanent export (including conditional permits)
• Permits for temporary export
• Letters of clearance
• Applications withdrawn

A total of 5074 objects were assessed under 293 applications (including requests for letters of clearance) during 2002-03. A statistical summary of all applications processed in 2002-03 is at Appendix I. As in previous years, a range of material was covered by the permits issued, which are listed at Appendix II.

There were 32 applications covering 42 objects under consideration at 1 July 2002 and 35 applications covering 36 objects under consideration at 30 June 2003.

Permits for permanent export (including conditional permits)

Permits were issued to export permanently 33 cultural heritage objects covered by 32 applications (including 11 conditional permits). In general, the exporters were seeking to sell the objects on the international market or to exchange the objects with overseas collectors.

Eleven conditional permits were granted for the export of a number of Australian Aboriginal artworks on the condition that a high quality colour transparency of each work and, where applicable, historical documents relating to each work be forwarded to the Department for future research purposes.

Permits for temporary export

Permits were issued in response to three applications to allow the temporary export of five Australian protected objects for exhibition or assessment purposes.

Letters of clearance

A total of 212 letters of clearance were issued covering a total of 4718 objects. Of the total, 162 letters covering 168 objects resulted from applications for export permits where the objects were found not to meet the Control List criteria and the Act therefore did not apply to them. In addition, 50 letters covering 4550 objects were issued as a result of discussions with prospective applicants prior to the lodgement of a formal application, where it became evident that the objects would not meet the Control List criteria.

Applicants may obtain a preliminary assessment of certain natural science objects. Expert examiners have indicated that the vast majority of these applications relate to material that is of little or no scientific or cultural significance, or to material that is adequately represented in public collections by objects of equivalent quality. In such cases a letter of clearance allowing the export is issued by the expert examiner.

In cases where the object is assessed as being of high scientific or cultural significance and is not adequately represented in public collections it is subject to the full assessment process, including consideration by the National Cultural Heritage Committee.

Applications withdrawn

Fourteen applications were withdrawn in the year under review.

Certificates of exemption

Six certificates of exemption covering 264 objects were issued during the year. Certificates of exemption allow Australian protected objects that are currently overseas to be imported into Australia and subsequently re-exported. Owners of Australian protected objects located overseas are encouraged to repatriate them to Australia for display or sale. Objects imported for exhibition allow the Australian public access to elements of their cultural heritage that would otherwise be unavailable. Objects returned for sale provide opportunities for Australian residents to purchase and return these objects to the Australian domain. A certificate provides owners with security that their objects can be re-exported on completion of the exhibition or if sale to a resident of Australia is unsuccessful.

As an example, during 2002-03 certificates of exemption were issued for Aboriginal busts; five Antarctic artefacts used by Sir Douglas Mawson and Carsten Borchgrevinck; and 214 Aboriginal paintings and artefacts from the John McCaffrey Collection of West Kimberley art and artefacts.

National Cultural Heritage Committee

The Act provides for the Minister to appoint the National Cultural Heritage Committee. The committee is responsible for advising the Minister on permit applications and on the administration of the Act, including the National Cultural Heritage Control List, the Register of Expert Examiners, and the National Cultural Heritage Account.

Committee members during the year were:

Dr Philip Jones, Senior Curator, Department of Anthropology, South Australian Museum, from 26 October 1995 (Chair)
Dr Kenneth McNamara, Senior Curator, Invertebrate Paleontology, Western Australian Museum, from 26 October 1995
Mr Simon Molesworth AM QC, Barrister-at-Law, Victoria, from 29 January 1996
Professor Di Yerbury AO, Vice-Chancellor, Macquarie University, Sydney, from 12 October 2000
Ms Deborah Tranter, Deputy Director, Cobb & Co Museum, Queensland, from 24 April 2000
Ms Carol Henry, Chief Executive Officer, Art Exhibitions Australia, NSW, from 15 February 2000
Ms Jennifer Sanders, Associate Director, Powerhouse Museum, Sydney, from 4 May 2000
Ms Kylie Winkworth, Museum and Heritage Consultant, from 12 August 2002
Ms Avril Quaill, Associate Curator, Indigenous Australian Art, Queensland Art Gallery, from 1 October 2002
Mr Bill Bleathman, Director, Tasmanian Museum and Art Gallery, from 25 February 2003
The appointment of Mr Roger McIlroy, Chairman and Managing Director of Christie's Australia, expired on 13 December 2002.

Committee meetings were held in Canberra on 8 to 9 August 2002 and 6 to 7 March 2003 and telephone conferences were held on 28 October 2002, 16 December 2002 and 7 April 2003 to consider contentious applications and issues under the Act. Additionally, a considerable volume of committee business was conducted out of session, including the consideration of export applications and formulating recommendations and advice to the Minister.

Committee-related expenditure for 2002-03, including travel for attendance at meetings and sitting fees, was $35 079.

Register of Expert Examiners

The Register of Expert Examiners was maintained by the committee in accordance with section 22 of the Act. The committee continually seeks to invite individuals with appropriate expertise to join the register to ensure that it is balanced, comprehensive and representative.

The committee wishes to express its sincere gratitude to the expert examiners, who do not receive remuneration, for giving the benefit of their wide experience and practical support throughout the year. Their specialised knowledge and advice in preparing reports for consideration by the committee and the Minister are vital in the protection of Australia's significant movable cultural heritage, as is the specialist advice they provide to the Australian Customs Service and the Australian Federal Police.

Review of the Protection of Movable Cultural Heritage Act, Regulations and administration

With the passage of the legislation in 1986, the Government indicated an intention to regularly review its operation. The legislation was last reviewed in 1995, which led to amendments to the Act and Regulations being passed in May 1999.

Since the passage of the amendments a number of administrative difficulties have been identified and in accordance with the Government's original intentions it was considered timely for another review of the Act to be conducted. On 9 December 2002 the Minister approved a further review of the Act which is expected to be completed in 2004.

This review will consider whether amendments to the Act are needed and will aim to simplify the Control List and to update the age and monetary threshold criteria contained therein used for determining whether an object is an 'Australian protected object'.

It is anticipated that amendments to the Act and simplification of the Control List will provide a higher level of certainty for exporters as to whether a permit is required and therefore lead to greater compliance and more effective and efficient enforcement of the Act.

A widespread formal consultation process will be undertaken, targeting specific interest groups and industries.

All exporters of movable cultural heritage should benefit from the outcomes of the review.

Illegal trade in cultural material and overseas requests for return of material illegally exported from the country of origin

• Illegal imports
• Illegal exports

Illegal imports

During the year the Department continued to receive enquiries from within Australia and overseas regarding possible illegal imports. The Department worked in cooperation with the Australian Federal Police and Australian Customs Service officers to investigate these enquiries. Under the Act, objects illegally exported from another country contrary to cultural heritage laws of the country of origin, and imported into Australia, may be subject to seizure and forfeiture to the Commonwealth for return to the requesting government. Actions taken included negotiating with overseas governments on these cases.

The Department received a request from the Embassy of the People's Republic of China for the return of illegally exported fossils including dinosaur eggs. The Department is working with the Australian Federal Police and Australian Customs Service on this matter.

In response to the looting of heritage objects from Iraq the Department activated the provisions of the Protection of Movable Cultural Heritage Act, through a request to the Australian Embassy in Baghdad, to seek a list of looted objects; to confirm that the Iraqi Antiquities Heritage Law No. 55 of 2002 is still the applicable law (Interpol has provided an English translation of the law to the Department); and to obtain from the Iraqi authorities a formal request for Australia to seize and return any looted antiquities that may appear in Australia.

The Department of Foreign Affairs and Trade arranged for passage of Regulations under Australia's Charter of the United Nations Act 1945. The Iraq (Reconstruction and Repeal of Sanctions) Regulations 2003 were signed into law by the Administrator of the Commonwealth on 28 May 2003. The Regulations make it an offence for Australians to traffic in looted Iraqi cultural objects, and require persons in Australia or Australians overseas who may be in possession of such items to hand them over to the appropriate authorities.

Illegal exports

The Department, in conjunction with the Australian Federal Police and the Australian Customs Service, seized two consignments alleged to have been exported in contravention of the Act: one located in Sydney and one in Brisbane. The consignments consisted of a Marshall Road Locomotive and a Fowler Stump Puller.

Appendix I:

Appendix II: