Protected Objects Amendment Bill

I move, That the Protected Objects Amendment Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Government Administration Committee for consideration.

The illicit trade in cultural objects is a significant international problem, often associated with organised crime, the looting of archaeological sites, and the theft of objects from public and private sources. Interpol estimated in August last year that the illicit trade in art and artefacts worldwide each year is valued at somewhere between US$4 billion and US$10 billion.

Important New Zealand objects have been illegally exported in the past and continue to be vulnerable. The recovery of stolen or illegally exported objects is hindered by a range of legal and practical problems that are best addressed through international agreements. The United Nations Educational, Scientific and Cultural Organization, Unesco, has taken the lead in securing international agreement on measures to protect heritage objects.

Two international conventions have been framed to address the problems. The 1970 Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property provides a framework for cooperative action between State parties. That is complemented by an International Institute for the Unification of Private Law (UNIDROIT) convention—UNIDROIT being the international institute established to provide for the harmonisation of private and commercial laws between States. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects creates a specific judicial framework that aims to unify the private laws of member States in relation to the recovery of objects. In July 2004 the Minister for Arts, Culture and Heritage, the Rt Hon Helen Clark, announced that New Zealand is to sign up to those two international conventions. Some legislative change is required, however, before we can do so.

The Protected Objects Amendment Bill introduces revised provisions for regulating the export of heritage objects. Those provisions update established practice and continue New Zealand’s longstanding commitment to protecting objects of heritage value within New Zealand. For more than 100 years New Zealand has had legislation that has been designed to prevent the loss of certain precious objects and that reflects the principle that the Crown has a legitimate interest in protecting objects of heritage value to New Zealand and, in particular, in regulating the export of such objects, including those in private ownership.

The current legislation, the Antiquities Act, provides for a system of domestic control of the export of cultural heritage objects. The Act does not, however, provide the means to recover objects that have been illegally exported. It has other shortcomings that prevent optimum protection of our removable cultural heritage. As a good international citizen, New Zealand also has an interest in respecting and protecting the cultural heritage of other countries. Participation in both conventions meets our responsibility to recover and return important cultural objects imported here from other countries, as well.

The purpose of the bill, therefore, is to address the shortcomings of the Antiquities Act and to strengthen the safeguards protecting valued New Zealand and international cultural heritage objects. The bill will do that by clarifying meanings and introducing more precise categories that describe the heritage objects for which permission to export is required. It will clarify the processes for applying to export heritage objects and will provide for systematic and accountable advice to be given by recognised experts on heritage objects in that process. The bill will thus ensure we retain those objects that are of such importance that their export would substantially diminish New Zealand’s cultural heritage.

Existing penalties for breaches of the Act are so low right now as to provide little effective deterrent. That is especially true in an age when very high prices can be obtained for rare heritage objects on the international market in stolen and illegally exported items, as well as for those objects that are at present exported legally. That market has taken advantage of technological advances such as trading over the Internet. Under this bill, monetary penalties will be increased to align with those in the Trade in Endangered Species Act, in recognition that both endangered species and cultural objects are vulnerable and irreplaceable world resources. The Government intends those penalties to provide a genuine disincentive to illicitly export our precious heritage objects or to gratuitously destroy any object for which permission to export is not granted.

The bill will also align the legislation with the Customs and Excise Act, ensuring that the New Zealand Customs Service can effectively monitor border compliance in terms of the international conventions. The bill establishes a register of objects in which New Zealand has a national interest, and which may be subject to claims for repatriation through these conventions if they have been illegally exported.

The bill establishes new administrative processes to ensure that ownership can be established over found Māori cultural heritage objects. This will mean that those claiming ownership will not need to enter into costly legal proceedings. This legislation will assign to the chief executive of the administrative department responsibility for consulting appropriately when a Māori cultural heritage object is found. The processes will, it is hoped, dispel concerns that the Crown may be assigned ownership over such newly found objects.

The bill changes the title of the principal Act. The words “antiquities” and “artefacts” as used in the current legislation are outdated and do not reflect the tenor of the bill or its contemporary purposes. The new title recognises that the bill is concerned with the cultural and heritage values of both New Zealand and other States. Although the legislation will continue to be an amendment to the Antiquities Act, on its commencement the title of the principal Act will change from the Antiquities Act to the Protected Objects Amendment Act.

The bill completes a series of reviews of the Act that began in the mid-1980s and addresses issues that have evolved significantly since that time. New Zealand will benefit because international demand for illicitly obtained objects will be reduced as deterrents come into effect. We will also benefit from a more transparent and enhanced environment for the legitimate international trade of cultural objects.

I am very pleased to introduce this bill. It is long overdue, and is the outcome of thoughtful consideration and review. It is now time to ensure that our legislation reflects both the realities of the present day and the value we place on heritage as part of our living culture, as well as the past upon which it has been built. I intend to move that the bill be referred to the Government Administration Committee for consideration.

National will support the Protected Objects Bill going to a select committee. Over the last couple of years we have looked at what has been happening in the illicit trading of objects of value, and the two conventions, the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which the Minister mentioned, are worthy of consideration. Not all countries are members. In fact, I have a list here of those countries that have ratified and acceded to the UNIDROIT convention of 1995. The list is quite interesting. There are 23 countries on it. Countries that one might have thought might be on it, like Canada, the United States, and Australia, are missing. I will mention a couple of those later on, because they do have in their own legislation provisions that protect their objects.

First, I will look at the Unesco convention of 1970, then at the UNIDROIT convention. Much information came to the Government Administration Committee about this time last year, and we will be signing up to these conventions if we pass this legislation. The major point I make is that there is growth in trade of illicit items of significant cultural value, and the Unesco convention provides specific structures for international cooperation between States and for cross-border recovery of items. I think that is significant.

New Zealand has acknowledged the need to protect our cultural heritage since 1901, so it is not something new, but we have not been party to the Unesco convention. The UNIDROIT convention complements the Unesco convention, and allows for a person to sue in a foreign court for the return of stolen cultural objects. It also requires that stolen or illegally exported objects are returned regardless of whether the buyer purchased them in good faith. At present, only 23 States are party to the UNIDROIT convention, compared with 103 countries or States that have ratified the Unesco convention.

So there is a significant difference between the Unesco and UNIDROIT conventions. Neither convention is retrospective in its application; nor will their provisions apply to objects stolen or illegally exported before the date of New Zealand’s accession. We will never be able to get back objects that have been stolen or illegally exported in the past, but I think that from now on in these conventions are worthy of further consideration.

What are the advantages for New Zealand of accession to the Unesco convention? Objects stolen from collections such as those in museums, or from religious or secular public monuments, or similar institutions, in New Zealand would be required to be returned. Accession would support New Zealand’s participation in the legitimate international trade in cultural objects by increasing market certainty. But there are some disadvantages to being a member of this convention. It does not address the problems of New Zealand’s inability to invoke foreign laws for the return of New Zealand objects and for the protection given to good-faith purchases in foreign States. It requires only that objects stolen from collections in museums and similar institutions be returned, and many developing countries do not have their collections listed. It does not provide for the return of objects stolen from private owners, so that is a major handicap.

The advantage of accession to the UNIDROIT convention—which is where the possession of a cultural object by a good-faith purchaser would not extinguish a claim for recovery of a stolen cultural object—would allow New Zealand to recover stolen or illegally exported objects overseas, where this action would not otherwise be available in countries whose laws favour good-faith purchases. Individuals would not have to rely on the New Zealand Government to seek the return of their objects on their behalf. This has two benefits. First, it provides a choice of action for private citizens, and, secondly, it lessens the burden on the New Zealand Government.

The UNIDROIT convention does not require objects to be registered or designated by the State. Objects of which the State has no prior knowledge, such as those illegally removed from archaeological sites or stolen from private collections, can be recovered under the convention. However, there are also disadvantages of accession to the UNIDROIT convention. It has a relatively low ratification rate. Only 23 countries have ratified it, compared with the other convention, which has 103 ratifications. This reduces the convention’s protections, because New Zealand can invoke the convention only against other State parties. Under the UNIDROIT convention the purchaser of a cultural object, even when it is purchased in good faith from a reputable seller, runs a risk of losing his or her property should a claimant take steps to recover the cultural object, and claimants are required to pay a sum in compensation to innocent purchasers for the loss of their property.

So, in summary, there are advantages and disadvantages of both conventions, but National is certainly happy to discuss these further as this bill goes into the select committee. As I am on the Government Administration Committee, I will be looking more closely at the information that we have available. It is probably timely to look at some of the traffic of New Zealand cultural objects that have been taken out of New Zealand. In 1984 New Zealand unsuccessfully attempted to recover, through the English courts, a set of Māori pataka panels, which had been recovered from a swamp in Taranaki, illegally exported, and sent for auction at Sotheby’s in London. The Motunui panels were withdrawn from sale, but remained in the ownership of the purchaser overseas. They were described by the then director of the National Museum as “the single most exciting unit of now the extinct Taranaki carving style” and a “true masterpiece of Maori art”.

There is also the Opito canoe case. This war canoe was found in the mid-1970s at Opito in the Coromandel. It was offered to the Auckland Museum for private sale from the Netherlands for US$10,000. The sale did not proceed. The canoe was on sold to a dealer in Paris. It is not known how or when it left New Zealand. Inquiries here and in Europe by the Government and Interpol proved inconclusive. So there are many examples of where objects of importance to our economy, culture, and heritage have left the country, and what this bill does is to give some credence and backing to a very important part of our heritage. For those reasons, National will be supporting this first reading.

I want to take a brief call at the first reading of the Protected Objects Amendment Bill, because I believe that this bill is of vital importance to the many hundreds, if not thousands, of New Zealanders who play a role in protecting New Zealand’s cultural heritage. I know of people—whom the Minister has had the grace to come and visit—in my own electorate who spend all their spare time ensuring that our cultural heritage is preserved, so that our children and our children’s children can see that heritage in a real form.

This bill will strengthen the Antiquities Act, as the Minister has said. Although that Act now controls the export of cultural heritage through the system we have already heard about, it does not really provide very well for the recovery of objects that have been illegally exported. As the previous speaker mentioned, there are examples of many aspects of New Zealand’s cultural heritage being taken from our shores and of our being unable to recover them for future generations.

This legislation will make a real difference, and I think it is a tribute to all those hundreds of New Zealanders who are playing a role in preserving our cultural heritage for the future. They can feel very proud of what they do for our country, and very proud of a Minister who really has made unstinting efforts on behalf of those people to ensure that the legislative framework can assist them in the work they do. This bill represents a major advance in protecting our cultural heritage. I congratulate the Minister, and I commend the bill to the House.

I also rise to take a short call. I do so on behalf of New Zealand First—and I remind the House again that it is the only non-aligned political party in this House—to speak to the first reading of the Protected Objects Amendment Bill.

The purpose of this bill—to New Zealand First, anyway—appears to be laudable, and appears to give protection to the itemised objects in the bill. We in New Zealand First believe that, given the opportunity, submissions from the public will identify concerns they have regarding this bill.

The collection of artefacts, taonga, and other objects has gone on for decades, and there are a number of prized public and private collections, most of which have been available for public viewing at some stage. But although I talk about artefacts and taonga, I do not believe that cultural heritage is or should be confined to movable or portable artefacts. In this regard, I talk about the land in which we have the privilege of living.

Collectors and other legitimate purchasers may feel constrained by this bill, because it appears to limit their ability to trade freely, both nationally and internationally. The bill has a further impact, in that New Zealanders could become subject to the impact of laws made in other countries with regard to particular objects. The sovereignty enjoyed by New Zealanders becomes a matter of question, and also a matter of the rights of property and title.

One of the changes proposed in the bill concerns the amendments to sections 11 and 12 of the principal Act, proposed in clauses 15 and 16 of the bill, with regard to the substitution of the words “taonga tūturu” for the word “artifact”, and of the words “ngā taonga tūturu” for the word “artifacts”. It is interesting to note that in clause 6, “Interpretation”, the words “taonga tūturu” are not defined, although references are made to them in clauses 15, 18, and 22 where those clauses substitute them for the word “artifact”. However, the words “ngā taonga tūturu” are defined to mean “two or more taonga tūturu”, and I wonder whether the Minister might consider putting forward a Supplementary Order Paper to include the words “taonga tūturu” in the interpretation clause.

I should point out that according to the Williams dictionary “tūturu” means “fixed or permanent”, and “taonga” means “property or highly valued”. It can also mean “treasure”. While talking of taonga tūturu, it is interesting to query whether this bill will be any more effective than the legislation that has seen the continued sale of land here in New Zealand to overseas interests.

New Zealand First will support this bill going to the Government Administration Committee in order for submissions to be made by the people of New Zealand, and in the hope that the bill will return to this House in a more robust state and with more substance than its present language seems to imply.

I rise on behalf of the ACT party to speak to the Protected Objects Amendment Bill, and to oppose the bill. I draw to the attention of the previous speaker, who claims to be from the only unaligned party, the fact he gave a speech that could have been given by either of the two old parties, and I do not believe that he has examined the bill correctly.

The reason the ACT party is opposed to the bill, to put it simply, is because all this bill does is reduce the price of New Zealand art. The Government thinks that by that measure we are somehow encouraging or protecting New Zealand art. Of course, we are not. The idea that this bill somehow encourages New Zealanders to own art, as one of the previous Government members has said, or to spend their energies trying to protect our cultural heritage, seems to me to be transparently nonsense. It is also based on the interesting notion that the best way for New Zealand to protect our unique art and culture is to put it on an island that is subject to earthquakes and volcanoes, and that by making sure none of it can be taken to an alternative site, we are somehow going to protect New Zealand’s culture. That, of course, is not so.

The idea is also based, I think, on the notion that the State has a better record of protecting art, so I just put this notion to members who think that: what private owner would have taken a significant portion of New Zealand’s best cultural artefacts and art to Wellington, a city subject to earthquakes, and then put it in a special museum built by the water—in fact, built in the same place that in 1846, before a tidal wave, would have been some metres under water? Only the State could have done that, and here we are having State bureaucrats tell us yet again that they know better, and that what we need to do in order to protect art is to go along with the latest UN convention. What a load of nonsense!

I have looked at the record to see which countries have most actively pursued the Unesco convention and which ones have been the most active in claiming that the State ought to protect cultural heritage, and that record in fact shows a list of nations with an appalling record of looking after their art. The nation that has refused point-blank to go along with this way is, of course, the United States, which now has, without any doubt at all, the best art collections in the world. There is no doubt about it—if people want to go and look at art, they do not go to Europe; they go to the United States. That is where they will find the best art galleries, and a large number of them are privately owned. Do they protect their art work? They most certainly do.

When we look at this bill, we have to ask: “Where are the incentives for a person who owns a piece of art, or Māori art, that is 59 years old?”. Well, actually, the incentive is to export it immediately, because once it is 60 years old, that person is not allowed to do so. Then there is the question of foreign objects—for some reason or another this bill covers foreign objects in New Zealand. Somehow we are deciding that even though they came here, we need to make sure that that never happens again. That provision covers objects once they are over the age of 100 years, so if a person has something that is 99 years old, it is not covered.

I also make this point to the House. There are actually large numbers of private art collections in New Zealand, and what is their incentive is under this bill? Is the incentive to show that art, to lend it to museums, and to be good public citizens? Of course not. The actual incentive of this bill for someone who owns art or a collection of Māori artefacts is to be secretive about it—certainly to refuse to allow art experts to ever examine it, and not to display it. If owners do that they will escape the provisions of this bill, because people will simply not know whether someone owns art.

I can assure members that I have seen some private art collections in New Zealand that are superb, and they are extremely well looked after. The owners, who have in some cases spent millions of dollars, have actually done a better job of restoring and keeping their art than most of our public museums. I am not making an attack on those museums. As MPs we have all seen museum staff turning up to Parliament to tell us that their institutions are underfunded and that they have collections they are not able to keep properly. They are not always able to keep collections under air conditioning. Many of us have seen art that is not being properly looked after, yet we have this bill, based on socialist arrogance and the belief that people who are private owners will not look after things of value. But, apparently, if we pass laws of this sort—telling owners they cannot export the art and have the international price for it—somehow we will protect our national heritage.

I dispute the notion that the fact that we have some New Zealand art around the world is not of assistance to all New Zealanders. Of course it is. It is of assistance for all sorts of reasons. One reason is that it guarantees an artwork’s survival in the event of a cataclysmic event occurring. We are a nation whose history shows that such events have occurred and could occur again.

💬 Stephen Franks: Pluvial.

Yes, we are pluvial. Also, the largest volcanic eruption in human recorded history occurred in this country. Perhaps people do not care, but I think it would be a good idea if some of our art and history were remembered. The next thing is that having others look at our art, collect it, study it, and think about it adds to the knowledge of this nation. There have been many, many incidents where overseas collectors and appreciators of art and culture have come back to New Zealand and have drawn to our attention the value of our collections. I can remember, for example, when a New Zealand Māori collection was taken to the United States. It was only the reaction of the American art collectors that drew to the attention of many New Zealanders the fact that we have more things of value here than we thought. The thinking behind this bill is that those works of art should never have left this country.

💬 Lianne Dalziel: Oh, nonsense!

That is the thinking behind this bill. Of course it is. There is a notion that by putting in place an export ban, somehow we are protecting this country’s culture. I have read the bill. I say that the bill is a socialist attack. All that it does is reduce the value of every private art collection in New Zealand.

💬 Lianne Dalziel: Oh, nonsense!

The ex-Minister knows that that is so. Even she is not that silly, even though she has demonstrated frequently how stupid she is, which is the reason she is sitting where she is.

💬 Darren Hughes: She never lost her electorate seat.

She did. She gave it up and became a list MP and then went back again. Her voting record does not compare with mine.

💬 Lianne Dalziel: Get over it.

I think the member is having difficulty getting over her present position.

The ACT party is opposed to this bill, for the reasons I have stated. We do not believe that it will carry out any of its objectives. We think it is yet another example of the Government abusing State power.