Protected Objects Amendment Bill

Protected Objects Amendment Bill Government Bill As reported from the Government Administration Committee Recommendation Commentary The Government Administration Committee has examined the Protected Objects Amendment Bill and recommends that it be passed with the amendments shown. Introduction The bill will amend the Antiquities Act 1975 to provide a more precise definition of protected New Zealand objects subject to export regulation, and to prohibit the permanent export of protected New Zealand objects that are of such significance that their export would diminish New Zealand s cultural heritage. The bill also enables New Zealand s participation in the UNESCO and UNIDROIT Conventions, that prohibit the import of unlawfully exported protected foreign objects, and provide for the forfeiture and return of such illegally exported objects. We have recommended a number of amendments to this bill that are minor and technical in nature and we do not comment on these changes. Our commentary covers the substantive issues raised during our examination. Definition of comparable objects Submitters expressed concern that the clause 6(2) definition of comparable objects was not clear enough. It was suggested the 243 2

2 Protected Objects Amendment Commentary definition of comparable objects should be redrafted to clarify its meaning and to establish a clear link to the comparable examples in Schedule 4. We note that clarity in this definition is essential because an offence, punishable by a maximum fine of $100,000 or a maximum term of imprisonment of 5 years or both, is created where a person exports or attempts to export protected New Zealand objects other than in accordance with new section 5, as inserted by clause 9. Although we do not consider that the definition is unclear in respect of the concept that objects may have unique associations, we agree that the terminology in the definition should be amended to comparable examples so that it is consistent with the usage in the new Schedule 4 of the principal Act. Furthermore, we recommend that the definition be amended to clarify that the unique associations in question are with New Zealand activities, events, ideas, movements, objects, persons, or places of importance. It was also suggested that the Schedule 4 requirement that there be at least two comparable examples permanently held in New Zealand public collections should be moved to section 7A, as inserted by clause 9 of the bill, making it one of the criteria the chief executive should consider in deciding whether to grant an application to export. It was also pointed out that, since the offence in new section 5(2) referred to above is an absolute liability offence, it was important for Schedule 4 to be as clear as possible. However, as we recommend the adoption of a defence of reasonable excuse in the circumstances in new section 5(2), as inserted by clause 9, we consider that this renders the suggested change unnecessary. Legal position of koiwi tangata Māori Te Papa sought clarification of the legal status of koiwi tangata Māori under the bill. It was suggested that koiwi (Māori human remains) could be classified as taonga tūturu under the Act and that exclusion could hinder the return of koiwi to iwi, hapu or whanau and even prevent their burial. After due consideration, we are satisfied that the definition of taonga tūturu should not be amended to include koiwi. We note that the definition of taonga tūturu refers to objects that have been manufactured or modified by Māori. While koiwi may have been preserved or embalmed, this would not amount to modification. We also note that including koiwi within this definition could be perceived as culturally inappropriate as koiwi are not merely

Commentary Protected Objects Amendment 3 objects, but human remains. Consequently, we recommend no change to clause 6(2). It was also suggested that the definition of taonga tūturu should include additional wording in paragraph (c) of the definition to the effect that a taonga must be either a certain age or, have been handed down a line of descent of not less than two generations. However, we note that two generations could, in an extreme example, amount to little more than 30 years. Such a provision would make taonga tūturu inconsistent with other categories of protected New Zealand objects where there is an age threshold, and we do not favour widening the definition. Maori Land Court One submitter noted that section 11 of the Act provides for the Maori Land Court to take an active role in the authentication of artifacts found since 1976. It was suggested that museums already perform the role that the Act reserves to the Maori Land Court and that greater clarity of the role museums play under section 16 is required. However, we note that under the Act, the Maori Land Court s role in this respect is to determine applications for ownership or custody of artifacts. This is quite separate from the roles undertaken by museums, which record the details relating to newly found artifacts and authenticate artifacts proposed for sale by traders. As the role of museums in the legislation is clear and distinct from the Maori Land Court, we recommend no amendment to the bill. Export of New Zealand objects Absolute liability offence for illegal export Under new section 5, as inserted by clause 9, the act of exporting or attempting to export a protected New Zealand object will be an offence even where there is a total absence of fault. The New Zealand Law Society expressed concern that it would not be effective to subject those who are without fault to the criminal process and that an absolute liability offence would not be an effective regulatory control because the activity is unlikely to come to light. Although we note that it will be important for as much information about the Act and the definitions to be disseminated publicly so that there are few reasonable excuses for contravening this section, we agree that a defence should be provided on the basis of the fact that

4 Protected Objects Amendment Commentary the onus is on the exporter to determine whether an object is a protected New Zealand object, and the potential severity of the penalties. We recommend that clause 9 be amended by inserting the words without reasonable excuse in the circumstances in new section 5(2). Provision for temporary export There will be occasions requiring the temporary export of protected New Zealand objects, such as in overseas exhibitions. We note that temporary export is already possible under the bill as a result of the requirement in new section 7 for the chief executive to refuse or grant applications for permission to export; but we also note that section 7A specifies that the chief executive may not grant applications for permission to export in certain circumstances. Therefore, we recommend that section 7A as inserted by clause 9 be amended to clarify that the chief executive may permit the export of protected New Zealand objects that otherwise satisfy the criteria of new section 7A, provided that the permit is granted with at least the condition that the object must be returned to New Zealand after a specified time. Physically authentic Physical authenticity is one of the criteria the chief executive must consider under new section 7A when determining whether to grant permission for the export of an object. Some submitters expressed concern that the clause 9 requirement of physically authentic in new section 7A could be narrowly interpreted to mean that only objects that are completely original will come under the protection of the bill. This could permit the export of reconditioned objects, such as traction engines, marine vessels and vintage machinery, which, although no longer physically authentic, may nevertheless still be very valuable to New Zealand s cultural heritage. We agree that such a narrow interpretation would not be appropriate and we recommend that new section 7A(1)(a)(ii) be amended to read substantially physically authentic. We note that there are a number of difficult issues associated with determining physical authenticity, particularly with objects that may have undergone regular repair and replacement of constituent parts. We agree that any assessment of authenticity must allow for repairs and suitable alterations over time, although the criterion of authenticity must also be tight enough to ensure that replicas and heavily

Commentary Protected Objects Amendment 5 modified objects are excluded. We consider that it is the responsibility of expert examiners to advise on these issues, and the chief executive to make the ultimate decision. Register of protected New Zealand objects The register established under new section 7E, as inserted by clause 9 will contain a list of objects which have been refused permission for export, and any other objects which are of such significance to New Zealand that their export would substantially diminish New Zealand s cultural heritage. Under section 15 of the Act, the National Museum is already required to maintain a register of artifacts. A submitter recommended that, given that all taonga tūturu are intended to fall within the category of protected New Zealand objects, the National Museum s register should form part of the chief executive s register. However, we note that the register proposed by new section 7E and the National Museum s register under section 15 of the Act have two very different purposes, and that including the National Museum s list in the chief executive s register would detract from the purpose of that list as a record of the most significant protected objects. Therefore we recommend no change to new section 7E in this regard. Some submitters also expressed concern that the register of objects of national significance will not be available for public inspection. It was suggested that this could provide an opportunity for offending parties to plead ignorance in respect of the protected status of an object. However, we note that, if the register of objects were made available publicly, it would be much easier for thieves or unscrupulous traders to target certain objects. We also note that there will be sufficient public information available about what types of objects are captured within the definition of protected New Zealand object, including new Schedule 4. Expert examiners Under clause 6(2), an expert examiner is defined as including a body corporate or an association of persons. One submitter expressed concern that new section 7B in clause 9 does not provide sufficient guidance about the qualifications or other criteria that must be met by expert examiners. It was noted that expert examiners play

6 Protected Objects Amendment Commentary a significant role in deciding whether an application for permission to export may be granted. After due consideration, we are satisfied that the definition of expert is well understood. Supplying concrete criteria for experts to apply would be very complicated because of the differing requirements of the categories of protected New Zealand object detailed in Schedule 4. However, we consider that there is merit in clarifying who has the responsibility for appointing examiners and we recommend that new section 7B be amended to include a new subsection (3) to ensure that the chief executive must be satisfied that expert examiners are experts in their relevant field. Immunity from prosecution Some submitters suggested that steps be taken to ensure that expert examiners are fully protected from any legal liability that might result from their work. We note that the Ministry for Culture and Heritage has investigated this issue and we recommend that, in order to ensure the efficient administration of the Act, a new section 7DA should be inserted in clause 9 so that expert examiners should receive protection from liability for advice or recommendations that they have provided in good faith. Entitlement by public museums to compensation Section 15 of the Act requires licensed auctioneers and secondhand dealers to notify authorised public museums of an artifact that is put up for sale. At such notification, the museum must issue a certificate of examination. Museums receive compensation for their time and expenses through appropriations in accordance with section 19 of the Act. The wording of section 19 effectively prevents museums from charging a fee to traders, as it specifies all costs of administration must be met through parliamentary appropriation. Although there is a public good element, we have no objection in principle to museums charging for examination services and we recommend that a clause be inserted in the bill to repeal section 19 of the Act. This will remove an impediment to museums charging a fee in future should the Government decide that this is preferable to funding these services through appropriations. We note that the repeal of section 19 would not affect the power to meet expenses incurred under the Act, as section 19 has been superseded by an equivalent provision in the Public Finance Act 1989.

Commentary Protected Objects Amendment 7 Crown ownership One submitter argued that clause 15 of the bill should be amended so that newly found taonga tūturu will not be prima facie the property of the Crown. Instead, it was suggested that taonga tūturu should be held prima facie to be the property of Māori. Although we acknowledge that the phrase property of the Crown may not be viewed positively by Māori, we note that prima facie Crown ownership helps achieve the aims of the submitter by securing any newly found items until custody or ownership can be awarded to the appropriate iwi, hapu or whanau. We also note that clause 15 establishes a new streamlined process for the allocation of ownership of newly found taonga tūturu to Māori. Provided there are no competing claims, the bill will enable orders confirming ownership of taonga tūturu to be made by the Maori Land Court. This will avoid the time and expense of making a claim through the court system which has been a major disincentive to the making of ownership claims in the past. We recommend no amendment to clause 15. Time threshold Some submitters suggested that the 60-year age threshold for protected objects, as defined in Schedule 4, should be reduced to 30 years to bring New Zealand s legislation into line with Australia s Protection of Moveable Cultural Heritage Act 1989. We note that Australia s 30-year threshold is exceptional and that most countries, including Canada and the United Kingdom, have 50- year thresholds for protected objects. Any decision to follow the Australian model could impinge considerably on the legitimate trade in cultural objects, as it would subject relatively contemporary objects to export control. This would make such exports difficult for traders and for Customs officers. However, in order to bring New Zealand into line with general international practice, we recommend that Schedule 4 be amended so that the age threshold is reduced from 60 to 50 years wherever it appears. We also recommend that the definition of taonga tūturu in clause 6(2) be amended accordingly. Offences and penalties Disclosure of information Clause 22, which proposes to amend section 16 of the Act, does not provide for an increase to the fine of $500 imposed in section 16(4).

8 Protected Objects Amendment Commentary Some submitters argued that there should be an increase commensurate with increases in other penalty provisions. We recommend that the penalty in section 16(4) should be increased to a maximum fine of $10,000 for an individual and $20,000 for a body corporate, in line with the rest of the bill. Wilful damage Some submitters suggested that the fines of $10,000 to $20,000 in new section 18A, as inserted by clause 25 are too low to prevent wilful damage and should be consistent with the more punitive levels of punishment for illegal export of $100,000. Another submitter argued that clause 25 does not go far enough in discouraging deliberate damage and takes too much of an after the event approach. It was argued that damage to, or disassembly of, objects must be prohibited, whether they are currently the subject of an export application or have been the object of an unsuccessful export application. We note that wilful damage is considered to be a tier-two offence in the Act, whereas illegal export is a tier-one offence. This is in line with the approach in the Trade in Endangered Species Act 1989, on which the penalty regime in this bill is modelled. Second-tier offences incur lesser penalties and we consider that it would be inconsistent to raise the penalties for wilful damage to match those for a tier-one offence. Nor are we convinced by the proposal to extend the wilful damage provisions to all protected New Zealand objects. This provision is concerned primarily with controlling the export of objects, and not the internal management of cultural and heritage resources. To widen the scope of the Act in this way would be a significant departure from its current purpose. Therefore, we recommend no amendments to clause 25. Regulation-making powers The regulation-making power to specify new categories of protected New Zealand objects was included in new section 22, as substituted by clause 28 as the definition of antiquity provided for in the Antiquities Act 1975 quickly became inadequate. We sought advice from the Regulations Review Committee on this issue and, after due consideration, we are satisfied that any new categories of protected New Zealand objects should be established through amendments to

Commentary Protected Objects Amendment 9 the principal Act, particularly given the substantial increase in penalties provided for in the bill. We recommend that the regulationmaking powers in new section 22(a) and (c), in clause 28, of the bill be deleted, and new section 22(b) be amended to clarify when the powers can be used.

10 Protected Objects Amendment Commentary Appendix Committee process The Protected Objects Amendment Bill was referred to the committee on 5 April 2005. The closing date for submissions was 20 May 2005. We received and considered 15 submissions from interested groups and individuals. We heard 4 submissions. Hearing of evidence took 1 hour and 14 minutes and consideration took a further 1 hour and 10 minutes. We received advice from the Ministry for Culture and Heritage. Committee membership Dianne Yates (Chairperson) Shane Ardern (Deputy Chairperson) Steve Chadwick Hon David Cunliffe Lindsay Tisch

Protected Objects Amendment Key to symbols used in reprinted bill As reported from a select committee Struck out (unanimous) Subject to this Act, Text struck out unanimously New (unanimous) Subject to this Act, Text inserted unanimously (Subject to this Act,) Subject to this Act, Words struck out unanimously Words inserted unanimously

Hon Judith Tizard Protected Objects Amendment Bill Government Bill Contents 1 Title Certificate of permission 2 Commencement 7G Certificate of permission Part 1 10 Conditions imposed by chief Amendments to principal Act executive 3 Title repealed 11 Appeal against chief executive s 4 Name of principal Act changed decision 5 New section 1A inserted 12 Application of Customs and Excise 1A Purpose Act 1996 6 Interpretation 13 New headings and sections 10A to 7 Minister may acquire antiquities 10F inserted 8 Sections 5 to 7 repealed Unlawfully exported protected 9 New Part 1 inserted foreign objects Part 1 10A Import prohibitions Protected New Zealand objects, 10B Claims for return of unlawunlawfully exported protected fully exported protected for- foreign objects, and stolen eign objects protected foreign objects 10C Compensation for and costs of returning unlawfully Protected New Zealand objects exported protected foreign 5 Export prohibition objects 6 Applications for permission to export protected New Stolen protected foreign objects Zealand objects 10D Objects stolen from foreign 7 Chief executive must refuse cultural institutions or grant applications for perforeign 10E Restitution of stolen protected mission to export objects 7A Chief executive may not Application grant applications for permis- 10F Application of certain sion to export in certain sections circumstances 14 New Part heading inserted Expert examiners 7B Expert examiners Part 2 Ngā taonga tūturu ownership and 7C Matters expert examiners Maori Land Court must consider 7D Expert examiners must recof artifacts 15 Establishing ownership and custody ommend that applications for permission to export not be 16 Maori Land Court s jurisdiction granted in certain over artifacts circumstances 17 New Part heading inserted 7DA Protection from liability Part 3 Registered objects Miscellaneous 7E Register 18 Disposal of artifacts 7F Registered object may not be 19 Registration of collectors permanently exported 243 2 1

cl 1 Protected Objects Amendment 20 New section 14A inserted 29 Schedule amended 14A Duties of executors 30 New schedules added 21 Licensing of auctioneers and Part 2 22 secondhand dealers 31 Amendments to Maori Land Court Certificate of examination to be Rules 1994 issued by authorised public museum 32 Consequential amendments to other 23 Disclosure of information 24 Replica of artifact Acts 25 New section 18A inserted 18A Wilful damage Schedule 1 25A Section 19 repealed New Schedules 2, 3, and 4 added to 26 Annual report principal Act 27 Saving of other enactments Schedule 2 28 New section 22 substituted Consequential amendments to other Acts 22 Regulations The Parliament of New Zealand enacts as follows: 1 Title (1) This Act is the Protected Objects Amendment Act 2004. (2) In this Act, the Act that was previously called the Antiquities Act 1975 1 is called the principal Act. 1 1975 No 41 2 Commencement (1) Section 13 comes into force on a date appointed by the Governor-General by Order in Council. (2) The rest of this Act comes into force on (1 July 2005) 1 January 2006. Part 1 Amendments to principal Act 3 Title repealed The Title of the principal Act is repealed. 4 Name of principal Act changed (1) As from the commencement of this section, (a) the principal Act is called the Protected Objects Act 1975; and (b) every reference in any enactment and in any document to the Antiquities Act 1975 must, unless the context otherwise provides, be read as a reference to the Protected Objects Act 1975. 2

Protected Objects Amendment Part 1 cl 6 (2) Section 1(1) of the principal Act is consequentially amended by omitting the word Antiquities, and substituting the words Protected Objects. 5 New section 1A inserted The principal Act is amended by inserting, after section 1, the following section: 1A Purpose The purpose of this Act is to provide for the better protection of certain objects by (a) regulating the export of protected New Zealand objects; and (b) prohibiting the import of unlawfully exported protected foreign objects and stolen protected foreign objects; and (c) providing for the return of unlawfully exported protected foreign objects and stolen protected foreign objects; and (d) providing compensation, in certain circumstances, for the return of unlawfully exported protected foreign objects; and (e) enabling New Zealand s participation in (i) the UNESCO Convention; and (ii) the UNIDROIT Convention; and (f) establishing and recording the ownership of ngā taonga tūturu; and (g) controlling the sale of ngā taonga tūturu within New Zealand. 6 Interpretation (1) Section 2 of the principal Act is amended by repealing the definitions of antiquity, artifact, authorised public museum, and work of art. (2) Section 2 of the principal Act is amended by inserting, in their appropriate alphabetical order, the following definitions: authorised public museum means any public museum specified in Schedule 1 3

Part 1 cl 6 Protected Objects Amendment Struck out (unanimous) comparable objects excludes identical or similar objects that have unique associations New (unanimous) comparable examples excludes identical or similar objects that have unique associations with New Zealand activities, events, ideas, movements, objects, persons, or places of importance craft has the same meaning as in section 2(1) of the Customs and Excise Act 1996 expert examiner includes a body corporate or an association of persons export means (a) placed on board any craft for (export from) transportation to a point outside New Zealand; or (b) taken into a Customs controlled area or customs place for removal from New Zealand; or (c) delivered as a postal article into the control of a postal service provider for removal from New Zealand foreign cultural institution means a museum, religious or secular public monument, or similar institution in a State, other than New Zealand, that is a party to the UNESCO Convention foreign public collection means a group of inventoried or otherwise identified cultural objects owned by (a) a State, other than New Zealand, that is a party to the UNIDROIT Convention; or (b) a regional or local authority of that State; or (c) a religious institution in that State; or (d) an institution that is (i) established for an essentially cultural, educational, or scientific purpose in that State; and (ii) recognised in that State as serving the public interest 4

Protected Objects Amendment Part 1 cl 6 import, in relation to an object, means the arrival of that object in New Zealand in any manner, whether lawfully or unlawfully, from a point outside New Zealand Ministry means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act ngā taonga tūturu means 2 or more taonga tūturu object includes a collection or assemblage of objects protected foreign object means an object in or from a foreign State that is of importance for archaeology, prehistory, history, literature, art, or science and that belongs to the following categories: (a) rare collections and specimens of fauna, flora, minerals, and anatomy, and objects of palaeontological interest: (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists, and artists, and to events of national importance: (c) products of archaeological excavations (whether or not permitted) or of archaeological discoveries: (d) elements of artistic or historical monuments or archaeological sites which have been dismembered: (e) antiquities more than 100 years old, such as inscriptions, coins, and engraved seals: (f) objects of ethnological interest: (g) (h) (i) property of artistic interest, including (but not limited to) (i) pictures, paintings, and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand): (ii) original works of statuary art and sculpture in any material: (iii) original engravings, prints, and lithographs: (iv) original artistic assemblages and montages in any material: rare manuscripts and incunabula, old books, documents, and publications of special interest singly or in collections: postage, revenue, and similar stamps, singly or in collections: 5

Part 1 cl 6 Protected Objects Amendment (j) archives, including sound, photographic, and cinematographic archives: (k) articles of furniture more than 100 years old and old musical instruments protected New Zealand object means an object forming part of the movable cultural heritage of New Zealand that (a) is of importance to New Zealand, or to a part of New Zealand, for aesthetic, archaeological, architectural, artistic, cultural, historical, literary, scientific, social, spiritual, technological, or traditional reasons; and Struck out (unanimous) (b) falls within (i) 1 or more of the categories of protected objects set out in Schedule 4; or (ii) any category or categories of protected objects specified in regulations made under section 22 New (unanimous) (b) falls within 1 or more of the categories of protected objects set out in Schedule 4 reciprocating State means (a) a State, other than New Zealand, that (i) is a party to the UNIDROIT Convention; or (ii) is a party to the UNESCO Convention and provides New Zealand with treatment substantially the same as the treatment New Zealand provides under sections 10A to 10C; or (b) a State that is specified in regulations made under section 22 stolen protected foreign object includes (but is not limited to) an object that was, in accordance with the law of the relevant State, (a) unlawfully excavated; or (b) lawfully excavated but unlawfully retained taonga tūturu means an object that (a) relates to Māori culture, history, or society; and (b) was, or appears to have been, 6

Protected Objects Amendment Part 1 cl 6 (i) manufactured or modified in New Zealand by Māori; or (ii) brought into New Zealand by Māori; or (iii) used by Māori; and (c) is more than (60) 50 years old UNESCO Convention means the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, done at Paris on 14 November 1970, a copy of the English text of which is set out in Schedule 2 UNIDROIT Convention means the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, done at Rome on 24 June 1995, a copy of the English text of which is set out in Schedule 3 unique means not existing in any other identical form unlawfully exported protected foreign object means a protected foreign object exported from a reciprocating State in contravention of its laws; and includes (but is not limited to) an object that (a) (b) has been temporarily exported from a State for purposes such as exhibition, research, or restoration under a permit issued by that State; and has not been returned to that State when required by that permit. (3) Section 2 of the principal Act is amended by (a) omitting from the definition of collector the word artifacts, and substituting the words taonga tūturu ; and (b) omitting from the definition of found the word artifact in each place where it appears, and substituting in each case the words taonga tūturu ; and (c) omitting from the definition of replica of an artifact (i) the words an artifact, and substituting the words a taonga tūturu ; and (ii) the words individual artifact, and substituting the words individual taonga tūturu. (4) Section 2 of the principal Act is amended by (a) inserting in paragraph (a) of the definition of relative, after the word spouse, the words, civil union partner, or de facto partner ; and 7

Part 1 cl 6 Protected Objects Amendment (b) inserting in paragraph (c) of the definition of relative, after the word marriage, the words, in a civil union, or in a de facto relationship. (5) Section 2 of the principal Act is amended by adding, as subsection (2), the following subsection: (2) Every reference in any enactment enacted, and in any document made, before the commencement of the Protected Objects Amendment Act 2004 to (a) the word artifact as defined in this Act before the commencement of the Protected Objects Amendment Act 2004 must, unless the context otherwise requires, be read as taonga tūturu as defined in this Act immediately after the commencement of the Protected Objects Amendment Act 2004; and (b) the word antiquity as defined in this Act before the commencement of the Protected Objects Amendment Act 2004 must, unless the context otherwise requires, be read as protected New Zealand object as defined in this Act immediately after the commencement of the Protected Objects Amendment Act 2004. 7 Minister may acquire antiquities (1) The heading to section 4 of the principal Act is amended by omitting the word antiquities, and substituting the words protected New Zealand objects. (2) Section 4(1) of the principal Act is amended by omitting the word antiquity, and substituting the words protected New Zealand object. (3) Section 4(2) of the principal Act is amended by omitting the word antiquity, and substituting the words protected New Zealand object. 8 Sections 5 to 7 repealed The principal Act is amended by repealing sections 5 to 7. 9 New Part 1 inserted The principal Act is amended by inserting, before section 8, the following Part: 8

Protected Objects Amendment Part 1 cl 9 Part 1 Protected New Zealand objects, unlawfully exported (foreign) protected foreign objects, and stolen protected foreign objects Protected New Zealand objects 5 Export prohibition (1) A person may not export, or attempt to export, a protected New Zealand object from New Zealand (a) (b) unless (i) that person has submitted to the chief executive an application for permission to export that object; and (ii) the chief executive has (A) granted the application for permission to export; and (B) provided that person with a certificate of permission under section 7G to export that object; and (iii) the export conforms with any terms and conditions imposed by that authorisation; or unless the chief executive, by notice in the Gazette, exempts any category or categories of protected New Zealand objects from the provisions of this section if he or she is satisfied that sufficient examples of that category or those categories are held in public ownership in New Zealand. (2) Every person who exports, or attempts to export, a protected New Zealand object, other than in accordance with subsection (1) or without reasonable excuse in the circumstances, commits an offence and is liable on summary conviction, (a) in the case of an individual, to a fine not exceeding $100,000 or a term of imprisonment not exceeding 5 years, or to both: (b) in the case of a body corporate, to a fine not exceeding $200,000. Compare: UNESCO Convention, art 3 9

Part 1 cl 9 Protected Objects Amendment 6 Applications for permission to export protected New Zealand objects (1) An application for permission to export a protected New Zealand object from New Zealand must (a) be in the form prescribed by the chief executive; and (b) demonstrate, to the satisfaction of the chief executive, (i) that the applicant has undisputed title to that object; and (ii) if the object is held in trust, that all of the trustees support the application. (2) Nothing in this section applies to any object lawfully taken and ordinarily kept outside New Zealand but temporarily within New Zealand. 7 Chief executive must refuse or grant applications for permission to export (1) The chief executive must, in writing, (a) refuse to grant an application for permission to export; or (b) grant that application for permission to export (i) unconditionally; or (ii) subject to any terms and conditions that the chief executive considers appropriate in the circumstances. (2) If the chief executive grants an application for permission to export, he or she must provide the applicant with written notice of the terms and conditions imposed under subsection (1)(b)(ii) (if any). 7A Chief executive may not grant applications for permission to export in certain circumstances (1) The chief executive may not grant an application for permission to export if the chief executive determines that the object (a) is (i) a protected New Zealand object; and (ii) substantially physically authentic and (A) made or naturally occurring in New Zealand; or 10

Protected Objects Amendment Part 1 cl 9 (b) is (i) (B) made with New Zealand materials; or (C) used by New Zealanders; or (D) related to New Zealand; and associated with, or representative of, activities, events, ideas, movements, objects, persons, or places of importance to New Zealand; or (ii) important to New Zealand for its technical accomplishment or design, artistic excellence, or symbolic, commemorative, or research value; or (iii) part of a wider historical, scientific, or cultural collection or assemblage of importance to New Zealand; and Struck out (unanimous) (iv) defined by any additional relevant criteria that may be prescribed in regulations made under section 22; and (c) is of such significance to New Zealand or part of New Zealand that its export from New Zealand would substantially diminish New Zealand s cultural heritage. New (unanimous) (1A) Despite subsection (1), and without limiting section 7(1)(b)(ii) or section 8(1), the chief executive may grant an application that meets the criteria specified in that subsection if the grant is subject to the condition that the object be returned to New Zealand by a specified date. (2) In making a determination under subsection (1), the chief executive must have regard to the advice of 2 or more expert examiners. Expert examiners 7B Expert examiners (1) When determining an application for permission to export, the chief executive must consult 2 or more expert examiners. (2) For the purposes of subsection (1), the chief executive must establish and maintain a register of expert examiners. 11

Part 1 cl 9 Protected Objects Amendment New (unanimous) (3) The chief executive must be satisfied that the expert examiners with whom he or she consults are experts in the field relevant to the particular application for permission to export. 7C Matters expert examiners must consider With respect to examining an object subject to an application for permission to export, the relevant expert examiner must have regard to the matters specified in section 7A(1). 7D Expert examiners must recommend that applications for permission to export not be granted in certain circumstances An expert examiner must provide the chief executive with a recommendation not to grant an application for permission to export if the protected New Zealand object is of such significance to New Zealand or part of New Zealand that its export from New Zealand would substantially diminish New Zealand s cultural heritage. New (unanimous) 7DA Protection from liability No expert examiner may be held personally liable for any advice or recommendation that the expert examiner provides in good faith in relation to sections 7A to 7D. Registered objects 7E Register (1) The chief executive must establish and maintain a register of objects, or categories of objects, of national significance. (2) The register (a) must include (but is not limited to) any protected New Zealand object in respect of which the chief executive has refused to grant an application for permission to export; and (b) may include any protected New Zealand object 12

Protected Objects Amendment Part 1 cl 11 (i) that its owner submits for inclusion in the register; and (ii) that is of such significance to New Zealand or part of New Zealand that its export from New Zealand would substantially diminish New Zealand s cultural heritage. (3) An object may only be removed from the register if it no longer meets the criteria specified in subsection (2). (4) The register is not available for public inspection. 7F Registered object may not be permanently exported (1) A registered object may not be permanently exported from New Zealand. (2) If a registered object is permanently exported from New Zealand, the chief executive may take any appropriate action that he or she thinks fit to seek to have the object returned to New Zealand. Certificate of permission 7G Certificate of permission If permission is granted by the chief executive for the export of a protected New Zealand object, a certificate must be issued to the applicant under the hand of the chief executive. 10 Conditions imposed by chief executive Section 8(1) of the principal Act is amended by omitting the word antiquity in each place where it appears, and substituting in each case the words protected New Zealand object. 11 Appeal against chief executive s decision (1) Section 9(1) of the principal Act is amended by omitting the word his, and substituting the words his or her. (2) Section 9(1) of the principal Act is amended by omitting the word antiquity, and substituting the words protected New Zealand object. (3) Section 9(1) of the principal Act is amended by omitting the word he, and substituting the words the Minister. 13

Part 1 cl 12 Protected Objects Amendment 12 Application of Customs and Excise Act 1996 (1) Section 10(1) of the principal Act is amended by omitting the word antiquity, and substituting the words protected New Zealand object. (2) Section 10(1) of the principal Act is amended by omitting the words other than section 235, and substituting the words except sections 229, 235, 236(2) to (4), and 237 of that Act. (3) Section 10 of the principal Act is amended by inserting, after subsection (1), the following subsections: (1A) The powers conferred on Customs officers under the Customs and Excise Act 1996 (except sections 229, 235, 236(2) to (4), and 237 of that Act) apply in relation to the export of a protected New Zealand object. (1B) The forfeiture of an object under subsection (1) is not dependent on the seizure of that object. (4) Section 10(2) of the principal Act is amended by (a) omitting the word antiquity in each place where it appears, and substituting in each case the words protected New Zealand object ; and (b) omitting the word condemned, and substituting the word seized ; and (c) omitting the word Minister in each place where it appears, and substituting in each case the words chief executive ; and (d) omitting the word Minister s, and substituting the words chief executive s. (5) Section 10 of the principal Act is amended by adding the following subsections: (3) Subject to the provisions of this Act, (a) the provisions of the Customs and Excise Act 1996 relating to unlawful imports (except sections 229, 235, 236(2) to (4), and 237 of that Act) apply to an unlawfully exported protected foreign object; and (b) that object is to be treated as a prohibited import under section 54 of that Act. (4) If the New Zealand Customs Service seizes an unlawfully exported protected foreign object or a stolen protected foreign object, that object must be (a) transferred to the Ministry; and 14

Protected Objects Amendment Part 1 cl 13 (b) held by the Ministry, in accordance with the directions of the chief executive (if any), until any proceedings related to that object under this Act or the Customs and Excise Act 1996 are completed. (5) Despite anything in the Customs and Excise Act 1996 or any other enactment, (a) (b) a prosecution for an offence under this Act or the Customs and Excise Act 1996 with respect to a protected New Zealand object (i) may be commenced at any time within 5 years from the date on which that offence was committed; but (ii) may not be commenced after the expiration of 5 years from the date on which that offence was committed; and no customs duties or taxes are payable in respect of a protected foreign object whose return is ordered by a court under section 10B or section 10E. 13 New headings and sections 10A to 10F inserted The principal Act is amended by inserting, after section 10, the following headings and sections: Unlawfully exported protected foreign objects 10A Import prohibitions A person may not import into New Zealand an unlawfully exported protected foreign object. Compare: UNESCO Convention, arts 3, 7 10B Claims for return of unlawfully exported protected foreign objects (1) A reciprocating State may bring a claim in a court of competent jurisdiction for the return of an unlawfully exported protected foreign object against the person who possesses that object within (a) 3 years of the date on which the claimant knew (i) the location of that object; and (ii) the identity of the possessor of that object; and (b) 50 years of the date on which that object (i) was unlawfully exported; or (ii) should have been returned to that State under a permit for temporary export issued by that State. 15

Part 1 cl 13 Protected Objects Amendment (2) The court must order the return of the unlawfully exported protected foreign object if the claimant establishes that (a) the removal of that object from the claimant s territory significantly impairs 1 or more of the following interests: (i) the physical preservation of that object or its context: (ii) the integrity of a complex object: (iii) the preservation of information, including (but not limited to) information of a scientific or historical character: (iv) the traditional or ritual use of that object by a tribal or indigenous community; or (b) the object is of significant cultural importance for the claimant. Compare: UNIDROIT Convention, art 5 10C Compensation for and costs of returning unlawfully exported protected foreign objects (1) If a court orders the return of an unlawfully exported protected foreign object, the relevant reciprocating State must, at the time of the return, pay fair and reasonable compensation to the person who possesses that object, provided that (a) the object was acquired after it was unlawfully exported; and (b) the person did not know, and could not reasonably be expected to have known, that the object, at the time it was acquired, was unlawfully exported. (2) In determining whether the person knew, or could reasonably be expected to have known, that the object was unlawfully exported, a court must have regard to the circumstances of the acquisition, including (but not limited to) the absence of an export certificate issued under the law of the relevant reciprocating State. (3) If the relevant reciprocating State agrees, the person required to return an unlawfully exported protected foreign object may, in lieu of compensation, (a) retain ownership of that object; or (b) transfer ownership, gratuitously or against payment, to a person who (i) resides in that State; and 16

Protected Objects Amendment Part 1 cl 13 (ii) provides any guarantees required by that State. (4) The relevant reciprocating State must, without prejudice to its right to recover costs from any other person, meet the cost of returning an unlawfully exported protected foreign object under this section. (5) Despite anything in this section, if a person required to return an unlawfully exported protected foreign object acquired that object gratuitously (by inheritance or otherwise), that person may not be placed in a position more favourable than the position of the person from whom that object was acquired. Compare: UNIDROIT Convention, arts 6, 9(1) Stolen protected foreign objects 10D (Stolen protected foreign objects)objects stolen from foreign cultural institutions (1) This section applies if (a) a protected foreign object that is documented as being part of the inventory of a foreign cultural institution is stolen and imported into New Zealand; and (b) the relevant reciprocating State provides New Zealand with the documentation and other evidence to establish its claim for the recovery and return of that object to the chief executive. (2) If this section applies, the chief executive must, (a) at the request of the relevant reciprocating State, ask the New Zealand Customs Service to (i) seize that object pursuant to its powers under the Customs and Excise Act 1996 (except sections 229, 235, 236(2) to (4), and 237 of that Act); and (ii) transfer that object to the Ministry; and (b) if that object is seized, return that object to that State if that State pays (i) just compensation to any person who (A) has valid title to that object; or (B) is an innocent purchaser; and (ii) all costs with respect to the return and delivery of the object. Compare: UNESCO Convention, art 7(b)(ii) 17

Part 1 cl 13 Protected Objects Amendment 10E Restitution of stolen protected foreign objects (1) A person in possession of a stolen protected foreign object must return that object to its rightful owner. (2) A claim for the restitution of a stolen protected foreign object against the person who possesses that object may be brought in a court of competent jurisdiction within (a) 3 years of the date on which the claimant knew (i) the location of that object; and (ii) the identity of the possessor of that object; and (b) 50 years of the date on which that object was stolen. (3) Subsection (2)(b) does not apply if (a) (b) that object (i) forms an integral part of an identified monument or archaeological site in the relevant reciprocating State; or (ii) is part of a foreign public collection; or that object (i) was made by a member or members of a tribal or indigenous community for traditional or ritual use by that community; and (ii) is to be returned to that community. (4) Except as provided in section 10D(2)(b), no compensation is payable for the restitution of a stolen protected foreign object. (5) Despite anything in the Limitation Act 1950, any claim that the person who possesses the stolen protected foreign object may have against the person from whom that object was acquired may be brought within 2 years of the date on which the order for restitution was made. Compare: UNIDROIT Convention, arts 3, 4 Application 10F Application of certain sections (1) Sections 10A to 10C only apply to unlawfully exported (foreign) protected foreign objects that are unlawfully exported from a reciprocating State on or after the commencement of this section. (2) Sections 10D and 10E only apply to stolen protected foreign objects that are stolen on or after the commencement of this section. 18

Protected Objects Amendment Part 1 cl 15 (3) Sections 10A to 10C do not apply if (a) the export of a protected foreign object is no longer unlawful in the relevant reciprocating State at the time that the object is imported into New Zealand or its return is requested; or (b) the protected foreign object was exported from the relevant reciprocating State during the lifetime of the person who created it or within a period of 50 years following the death of that person. (4) Despite subsection (3)(b), sections 10A to 10C apply if (a) a protected foreign object was made by a member or members of a tribal or indigenous community for traditional or ritual use; and (b) that object is to be returned to that community. (5) In any proceedings under sections 10B or 10E, or in support of any similar proceedings in a reciprocating State, the court may grant any interim relief that it considers appropriate. Compare: UNIDROIT Convention, arts 7, 8(3), and 10. 14 New Part heading inserted The principal Act is amended by inserting, before section 11, the following Part heading: Part 2 Ngā taonga tūturu ownership and Maori Land Court. 15 Establishing ownership and custody of artifacts (1) The heading to section 11 is amended by omitting the word artifacts, and substituting the words ngā taonga tūturu. (2) Section 11(1) of the principal Act is amended by omitting the word artifact in each place where it appears, and substituting in each case the words taonga tūturu. (3) Section 11(2) of the principal Act is amended by (a) omitting the word artifact in each place where it appears, and substituting in each case the words taonga tūturu ; and (b) omitting the word Minister, and substituting the words chief executive ; and 19