Protection of Cultural Objects on Loan Scheme

Australia's Protection of Cultural Objects on Loan Act 2013 provides comprehensive protection for loans of cultural material to Australia. While a number of other countries offer immunity from seizure legislation, there are differences how each operates. Prospective lenders should seek their own advice about the protections afforded to their objects.

Yes. If the lender or lender's details meet the definition under section 5 of the Protection of Cultural Objects on Loan Act 2013 (the Act), objects imported under these types of ownership arrangements can be protected.

Section 5 of the legislation acknowledges that the lender of an object is not always its owner. The lender is the individual or entity that would normally have physical possession, custody or control of the object outside of Australia for the period of the loan. It is the lender that needs to enter into an agreement to be provided protection under the Act.

No. Once the object is imported into Australia under the provisions of the Protection of Cultural Objects on Loan Act 2013, approved borrowing institutions can't stop protection.

Protection applies only while the object is on loan and does not prevent any other action in regard to fraudulent behaviour following its export from Australia. It also does not prevent action in a foreign jurisdiction, for example if the contract were entered outside Australia.

No. Approved borrowing institutions can opt-out of the Scheme if protection is not required for certain objects proposed to be imported for temporary loan (subparagraph 8(1)(g) of the Protection of Cultural Objects on Loan Act 2013). However, the institution must provide a written opt-out notice before the object/s are imported into Australia. Ideally, such a notice should be received by the Office for the Arts at least four weeks prior to importation. It is not possible to opt-out of protection once the object has been imported into Australia.

Yes. Objects imported under the Scheme are protected for up to two years from their date of importation. Under subsection 8(2) of the Protection of Cultural Objects on Loan Act 2013 the Minister for the Arts, or the Minister's delegate, may extend the time period if the approved borrowing institution makes a case for an extension due to exceptional circumstances.

A request for an extension to the period of protection must be made in writing to the Office for the Arts. The application must include an explanation of the circumstances for the extension, and should be submitted at least six weeks prior to the end of the original protection period.

Approvals for extensions beyond the two year period of protection will be provided to the institution in writing and published on this webpage.

As a borrowing institution, legal action could be taken following the export of the object, but the object cannot be seized if it is not in Australia. The Protection of Cultural Objects on Loan Act 2013 provides legal protections to objects on temporary loan to Australia and cease to apply once the object leaves Australia.

The protections provided by the Protection of Cultural Objects on Loan Act 2013 prevent third-party title claims on the object. Once the object has been imported, protection cannot be revoked.

Yes. This is one of the reasons for the Protection of Cultural Objects on Loan Regulation 2014, which ensures borrowing institutions meet best practice standards on each borrowing occasion.

Consultation is an important aspect of the Protection of Cultural Objects on Loan Scheme and it is mandatory under the Protection of Cultural Objects on Loan Regulation 2014.

Borrowing institutions applying to the Scheme are expected to have appropriate consultation policies and procedures in place and must ensure that their consultation policy is available on the institution's website. Specific consultation processes are required when proposing to borrow objects that are relevant to:

• Australian individuals, family groups or communities
• Aboriginal or Torres Strait Islander people, or
• state or territory archives.

Approved borrowing institutions must consider the nature of the object and its relationship to Australian communities and determine the extent of consultation required. Any consultation deemed necessary should be conducted before the proposed loans are imported into Australia.

Depending on the circumstances, you might not need to consult in relation to all loans, but you will need to consult over all proposed loans of Aboriginal and Torres Strait Islander cultural heritage objects. This is because they could hold special values and meanings for individuals and communities.

The publication of information about international loans to be protected under the Protection of Cultural Objects on Loan Act 2013 is an important transparency measure of the Scheme, and is mandatory under the Protection of Cultural Objects on Loan Regulation 2014.

In exceptional circumstances, you can apply to the Minister responsible for the Arts to ask for permission not to publish some or all of the information on an object. You must make the request in writing and set out which information you do not want to publish and your reasoning.

The Scheme's publication requirements include the flexibility to describe a lender or owner as 'private owner' or 'private collection'.

It is the responsibility of an approved borrowing institution to do your due diligence and consider why the lender does not want information to be made available.

Approval as a borrowing institution lasts for only five years. The exact approval dates will be provided in writing when the approval is granted.

After five years, institutions will need to apply again for approval. Your application should be submitted about three months before the end of your existing approval period, otherwise you risk your approval ending before the new approval can be granted.

An approved borrowing institutions  approved status can be revoked, or conditions applied to the approval, if:

• they do not maintain the standards of conduct in relation to matters that were considered at the time of approval
• they have contravened a regulation or any condition of approval.

This includes not upholding appropriate standards in regard to international loans.

The risk of seizures or legal action taking place under the Protection of Cultural Objects on Loan Act 2013 (the Act) is very small.

However, the Act does not provide protection for criminal activities. In recognition of Australia's international obligations, including those under the United Nations conventions against the proceeds of crime, corruption, illicit drug trafficking and organised crime, legal proceedings under the Proceeds of Crime Act 2002 and actions under Part IAA of the Crimes Act 1914 are excluded from the Scheme.

For an object to be protected under the Protection of Cultural Objects on Loan Act 2013 (the Act) it must be imported under a temporary loan arrangement with an approved borrowing institution. The institution must be approved before importation, otherwise the objects are not protected by the Act. It is not possible to obtain retrospective protection.

No. Australian legislation cannot provide protection in foreign jurisdictions.

The Protection of Cultural Objects on Loan Act 2013 provides protection only while the object is in Australian territory, from the time of import until the time of export.

While the Protection of Cultural Objects on Loan Act 2013 stops most types of legal action including seizure and suit (legal proceedings brought to a court of law) and the enforcement of judgements and orders, from the time of import until the export of the object, it is not a guarantee of return. However, it is expected that arrangements for return will be stipulated in loan agreements between the lender and the approved borrowing institution.

Yes. The Scheme aims to facilitate loans of Aboriginal and Torres Strait Islander cultural material from foreign collections and increase access to that material by Aboriginal and Torres Strait Islander peoples.

Loans of Aboriginal and Torres Strait Islander cultural objects provide opportunities to reconnect with culture and facilitate further engagement and relationships between overseas institutions and Indigenous communities.

However, Aboriginal and Torres Strait Islander cultural material categorised as Class A under the Protection of Movable Cultural Heritage Act 1986, are not given protection against seizure, in recognition of their cultural significance within Australia.

No, the Protection of Cultural Objects on Loan Act 2013 does not require specific clauses or a specific type of loan agreement. A legally binding loan agreement is important for many reasons, and borrowing institutions should seek their own legal advice about individual loan agreements.

Yes, protection can apply to an exhibition at a venue which has not been approved under the Protection of Cultural Objects on Loan Act 2013, if there is an arrangement between that venue and an approved borrowing institution.

Protection can apply to all venues of a touring exhibition if at least one venue or partner is an approved borrowing institution under the Act. Protection can also apply to a loan coordinated by an exhibition facilitator, if the exhibition facilitator has an arrangement with an approved borrowing institution in regard to the loan.