Protected Objects Amendment Bill

The National Party will be supporting this amendment bill. I have to say that when I first came across this slightly Orwellian title I was a little confused about what precisely might be the objects that needed to be politically protected. I wondered whether it was the Associate Minister for Arts, Culture and Heritage. No, I do not think that is the case. Was it perhaps the former Minister of Immigration, Taito Phillip Field, or was it perhaps the entire Labour Party—the Prime Minister’s list of the walking dead, politically speaking? I think that through a careful examination of Part 1 we can put some of this to rest.

Of course I have to say that amongst the list of the Labour Party walking dead, members will probably realise I was particularly concerned about the fate of the former Minister, Mr Jim Sutton, and I wondered about the impact of this on his negotiating position. But I notice that Part 1 refers to rare collections and objects of palaeontological interest. I quickly came to the conclusion that I do not think we can describe Mr Sutton as having yet attained the status of palaeontological, so I think we can lay that concern to rest. In fact, I want to congratulate him on negotiating a very successful exit strategy. I understand that the Prime Minister is a skilled taxidermist, but he finally did manage to negotiate an acceptable arrangement.

With respect to the detailed provisions of the arrangement, rather than go through them in some arid and rather academic way, I would like to examine them against an actual. Mr Finlayson, as he said, promises to give members an arid and academic analysis and he is excellent at that, I am sure. I would like to try to examine this with respect to an actual incident of cultural piracy, the Elgin Marbles, and ask ourselves, had this excellent legislation been on the books of the authorities at the time would it have stopped the problem?

I want to remind members of the particular circumstances surrounding the Elgin Marbles. Let us imagine that it is a hot and humid day in Athens—

💬 Hon Tau Henare: No!

Well, it often is, but air pollution, which is of course atrocious in Athens, was somewhat limited in 1799, because motorcars had not been invented. Let us say that one is Thomas Bruce, the 7th Earl of Elgin and ambassador to the Ottoman Empire, and one has, as perhaps befits the 7th Earl of Elgin, a certain noblesse oblige attitude towards life and cultural objects—a little bit like some of the Ministers in this Government who have been around power a little bit too long. So one goes along to the Parthenon with one’s flunkies, looks at these marbles, and says: “Well, this would look rather nice in my country estate in Surrey and, more to the point, this will annoy enormously the 6th Duke of Norfolk who will covet these marbles.” I will be able to say to him: “Not in your dreams.” So one says to one’s flunkies: “I want these marbles.” The question is: had this legislation been in place in the Ottoman Empire would it have prevented that? Well, I think we can trace the logic through.

First of all, we know that Lord Elgin then applied to the Ottoman Empire for what is called in Islamic law a firman, which was the piece of paper or the authority to take the marbles away. Now, of course, the procedures of the Ottoman Empire of the day were, one could say, Byzantine, but this is essentially a royal decree. Had this legislation been in place at the time, the Earl of Elgin would have had to apply to the chief executive of the Ministry of Arts, Culture and Heritage, which the provisions in Part 1 make quite clear has the sole authority to authorise the export, under very strict conditions. What is more, the chief executive must also have regard to expert opinion. If we examine section 7B in new Part 1, inserted by clause 9, which covers the modern-day equivalent, we will see that the chief executive alone has to consult experts on what issues are truly relevant to the day. Furthermore, there are detailed provisions for a process of review. So I think by examining this issue we can see that the bill has a lot of built-in protection. Some of the provisions are merely designed to bring a few things up to date, such as the provisions in clause 11 that change “his” to “his or her”. I do not think we need to explore the ground in between. But basically this is sensible legislation that addresses an issue of importance to New Zealand.

This is very useful legislation that amends the Antiquities Act 1975. As I said in my second reading speech, this country has long acknowledged the need to protect our cultural heritage. It is interesting to observe that over the years there has been a significant growth in the trade of illicit items of significant cultural value. Indeed, in 2004, I understand, Interpol estimated that the illicit trade in art and artefacts worldwide was valued at somewhere between US$4 billion and US$10 billion. In my second reading speech I referred members to the well-known case of Attorney-General of New Zealand v Ortiz, which went all the way to the House of Lords in England. The Attorney-General of New Zealand tried to do something about recovering a Māori taonga by reference to the Antiquities Act but failed because he was essentially seeking to enforce, in England, New Zealand legislation, and that was contrary to international law.

The Protected Objects Amendment Bill deals with a number of key provisions, and I will discuss those briefly tonight. I will not go through the definitional clause, which is, really, reasonably straightforward, but I will talk about the first provisions, which deal with preventing, or prohibiting, the export of protected New Zealand objects from New Zealand unless the person seeking to export the goods has obtained permission. The chief executive of the ministry is the person from whom permission should be obtained, and failure to obtain permission without reasonable excuse in the circumstances will mean that the person exporting the goods commits an offence and will be liable to substantial fines.

In order to assist the chief executive to make up his or her mind about whether prohibition should be ordered on export of a particular object, expert examiners may be called to provide assistance. The term “expert examiner” is not defined in the legislation except in a fairly cursory way—it may include “a body corporate or an association of persons”—and whether a person is an expert in a particular area will depend, obviously, on the circumstances. Those people who are granted permission to export will obtain a certificate of permission, and a register of objects will be kept. So I believe that this regime is a very sensible regime. This bill brings the Antiquities Act up to date, and I heartily endorse it and, indeed, say it is overdue.

Clause 13 is the one that I find particularly interesting. If someone brings into New Zealand the equivalent of my friend Mr Groser’s Elgin Marbles or an unlawfully exported protected foreign object, then for the first time steps may be taken in New Zealand to seek recovery of those objects and the return of those objects to the country whence they came. This is dealt with in clause 13.

I would like to refer to just a couple of matters, and maybe my friend Mr Fairbrother may care to comment on a couple of points that I will raise, as well. The first is that there is an import prohibition on bringing unlawfully exported objects into New Zealand. If they are brought in within the limitation period set out in section 10B, inserted by clause 13, then a reciprocating State may bring a claim in a court of competent jurisdiction—that will probably be the High Court—for the return of the goods. The limitation period specified is 3 years from the date on which the claimant knew the location in New Zealand of the object and the identity of the person who possessed it, and 50 years from the date on which the object was unlawfully exported.

The point I am not very clear about—and this is one that Mr Fairbrother may care to comment on—relates to the fact that the court must order the return of the unlawfully exported protected foreign object if the claimant establishes that the removal infringes in some way on the foreign law. The bill does not state whether the claimant is required to prove the circumstances set out in the clause beyond reasonable doubt or on the balance of probabilities. I would have thought it would be on the balance of probabilities, although the seriousness of the claim could well bring it within the ambit of a standard of proof of beyond reasonable doubt. If the return of the unlawfully exported protected foreign object is ordered, then the court may require the relevant reciprocating State to pay fair and reasonable compensation in the circumstances that are set out in section 10C, inserted by clause 13. So there is an interesting question as to how one assesses that compensation. Very important in the bill is the provision for what happens if foreign protected objects are stolen. I think the regime provided there is, likewise, a very useful addition.

So, in conclusion, I think it is well past the time that we acceded to bringing into New Zealand domestic law the Unesco and International Institute for the Unification of Private Law conventions—they are well overdue. That will address the kind of mischief that was outlined for New Zealand in Attorney-General of New Zealand v Ortiz. The rest of the bill simply brings the Antiquities Act 1975 up to date by substituting various terms, and I will not waste time on that. These were the key points I wanted to make, although, as I said, there are some interesting questions about whether it is beyond reasonable doubt or the balance of probabilities that needs to be proved. There will also be some interesting questions about how one assesses reasonable compensation in the circumstances.

I think this is an incredibly important bill that is along the lines of what this Government is trying to achieve in terms of protecting the New Zealand identity. I have been dealing with an issue in my electorate regarding the loss of a Hinemihi pare, a very significant carving to the Tuhourangi people in Rotorua. The carving was gifted—it was not illegally exported—and went under the care of the UK National Trust. We are now in the invidious position of trying to purchase it back for this country, and we simply cannot afford it. Prices on the international market have become so inflated that it will become a difficult task for us to ever be able to get such objects back once they hit the market and cannot be sent back through trust and museum agreements.

I think it is time for us to stop that bleeding of our cultural taonga internationally. I am very pleased to see this bill in the Committee at last. We will no longer see in future generations—and this is vital for intergenerational identity and cultural identity—the trading of taonga that this country will never be able to afford to retrieve. We have tried to recover the Hinemihi pare; we cannot go on the open market. There is no way we can get it back at $US1.9 million. We have trusts in Rotorua, all of whom say the pare is a part of our identity—in fact, it is Hinemihi’s body, which was lost at the Tarawera eruption—and we are just grieving about that in our community. Benefactors went out and raised a substantial amount, but nowhere near the target, and there was no way we could afford to get the pare back. Those are the sorts of situations that this legislation will protect us against for generations to come.

I congratulate the members of the Government Administration Committee; I think they have done a wonderful job on this bill.

That little story reminds us of our New Zealand stories and of why we cling to all the things that we hold dear. This is a wonderful bill. It is a very significant bill, and I am glad that the Opposition supports it.

Like the member who has resumed her seat, Steve Chadwick, I too support the Protected Objects Amendment Bill. I acknowledge the fine contributions to this debate tonight from my two colleagues Chris Finlayson and Tim Groser. I think that at this stage we should probably remind ourselves of the origins of this debate tonight. My reading of it is that the emotion that brought this issue to a head—and I hope members will not mind the pun—was the shrunken head debate that took place in this country about the return of such artefacts in the mid-1990s. I think my good colleague the Hon Tau Henare may have been the Minister at the time who participated in some of that debate and discussion. I see the Minister in the chair, Judith Tizard, has some anxiety about what I am saying. I am not sure whether that is because she thinks she may be protected under this bill. I am not sure about that, but maybe she will take a call and clear that matter up for us. But that is my understanding of the situation.

The bill brings New Zealand into line with an internationally recognised Unesco set of standards. That, in itself, and the reciprocal nature of that, so that we are able not only to negotiate the return of some of our artefacts but also to reciprocate when people bring other nations’ icons or treasures to New Zealand, is something I think we should all be a part of. The bill also brings us into line with the various other conventions that exist internationally and add strength to this legislation—for example, the International Institute for the Unification of Private Law (UNIDROIT) convention, which has some history now. It was passed in 1995 in Rome—on 24 June, I see here in clause 6 of the bill. So this bill is obviously overdue and, for that reason, I am pleased the Committee is quite unanimous in its support for it. I am not sure whether there are any dissenting voices in the Committee, at all—there may be; I am not sure—but it seems as though the House is fairly unanimous in its support for this legislation.

The Chief Executive of the Ministry for Culture and Heritage will be given some powers that will have to be monitored, and some people who submitted to the Government Administration Committee raised concerns about that. But I think the protections put in place under the legislation with regard to that, and the very high tests that have to be met, should help those who have concerns in that area.

As far as I can tell, the bill also brings quite clear definition to what could be described as Māori cultural artefacts. Of course, there is a lot of debate in New Zealand at the moment as to the meaning of the various terminology used in some of the legislation in that area. Because we are dealing with physical objects, this legislation will bring clarity to that issue. I am sure that those who submit to the chief executive, through the various avenues they will have, will be able to bring expertise to his deliberations on what actually represents an artefact.

There have been some quite erudite speeches about international experiences. The one that I spoke of in the first reading was an event that took place in Taranaki, which I think my good colleague Chris Finlayson referred to. That case made its way right to the House of Lords in England. It was decided in the High Court in London that it was impossible for a foreign jurisdiction to implement what was clearly intended in New Zealand law. In enabling New Zealand to sign up to the Unesco convention and the UNIDROIT convention, the bill provides clarity and reciprocity in respect of international law in terms of what can and cannot be decided at the various points in the judicial system, when such things are debated.

If the Minister in the chair has any concerns about some of the comments made by various members tonight, she should take a call and clear them up. I know she probably has no understanding whatsoever of the bill, which is in her name, so I am not expecting a learned speech. But if she has some concerns—and I have seen a certain amount of head-shaking and guffawing by her, although no knitting—then she should take a call and clear up those issues.

I move, That the question be now put.

Thank you Madam Chair for your indulgence. I want to pick upon a couple of issues. The first is colloquially known as “shrunken heads”. I travelled—

💬 Hon Judith Tizard: What! Nobody knows it as “shrunken heads”.

The woman who has been playing on her telephone for the last half an hour—texting whoever, not listening to whatever the members have said in the last half an hour—suddenly comes to life, because she has found the “send” button. For goodness’ sake! Members have been making really good speeches, really interesting kōrero, in the Chamber tonight about protected objects but she has to go and ruin it by waking up! I was going to talk about what is called in the business “shrunken heads”, or “stolen shrunken heads” in my—

💬 Hon Judith Tizard: Nobody calls them that, except Brazilian ones.

Here we go! For goodness’ sake! Take the pill and close your eyes.

The CHAIRPERSON (Ann Hartley): Will the member please withdraw and apologise for that remark.

I withdraw and apologise. When I travelled to England and Scotland some years ago to retrieve those taonga—as I believe they are—I thought that what we really needed is legislation to protect everything in this country. I am glad to stand up and support this bill. My colleague referred to the Elgin Marbles but that situation would not have happened if there had been legislation like this and everybody had signed up to the deal. I know, and most members of the House know, that cultural taonga was stolen from this nation hundreds of years ago and they lie in the back offices of museums around the world. My great-uncle, my grandfather’s brother, at the closing stages of the Second World War, talked to a few of his mates in the 28th Battalion and they were on the cusp of doing a raid on some of the international museums, on their way home, to bring some of those taonga back. I am glad that the parties are signing up to the bill.

One matter I want to talk about is Charles Upham’s VCs. There was a bit of a furore not so long ago about who owned them and whether they were taonga to the nation. I see in schedule 4: “New Zealand military history means the history of—” and it lists a definition of that. The bill states “protected New Zealand object means an object forming part of the moveable cultural heritage of New Zealand …”. I am not so sure there is anything in the bill that protects the issue of an individual person’s property, as a taonga that belongs to the person. In the case of Charles Upham his VCs were gifted to his daughters, even though we all believe that he did such a wonderful job and he won two VCs on behalf of the nation. There is nothing in the bill that says that those people who owned those taonga can do what they want with them.

I am glad that the bill states that the Crown can purchase on behalf of the nation. That is absolutely fantastic. There can be a horrible situation where because the nation is interested in a taonga or object, the price is pushed up on the open market and even on the black market. So we have to be careful. Some years ago I proposed that if we were to go down this track in terms of a revamp of the Antiquities Act—at the time I called it the “Taonga Māori Protection Bill”, and that may have been naive of me—a trust should be established whereby not only the Government could put funds towards purchasing protected objects but also the private sector could contribute. Fund-raising could go on, so there would be a fund for those national treasures. It would have taken a hell of a lot of money.

I move, That the question be now put.

I rise to speak in the debate on the Protected Objects Amendment Bill, which is a useful bill in its amendment of the Antiquities Act 1975. It seeks to regulate and prohibit the permanent export of protected New Zealand objects that are of such significance that their export would diminish New Zealand’s cultural heritage. I support my National Party colleagues, and will turn to some of their comments later. We have not heard any disagreement in the Chamber tonight about the importance of the bill. It is about the protection of—

💬 Shane Ardern: Only from the Minister.

That is true; the Minister did have a dissenting voice before. The bill is about the importance of the protection of our cultural heritage in the form of objects. It brought to mind a recent visit that I paid to Māori rock drawings near Temuka in South Canterbury, and the reason it brought that to mind was, of course, that those particular—I guess we should say—objects are, very fortunately, way too big to export. I think that that is fortunate indeed, because we would hate to see those objects of such important cultural heritage and value spirited away overseas.

That brings me to the point of this bill. We, as New Zealanders, know that we value cultural heritage and we value objects immensely, and this bill allows us to have some redress from those who seek to export them illegally. Having not had the pleasure of being present in the Government Administration Committee for the process, my comments will be general in nature around Part 1. It is abhorrent to New Zealanders that someone, or anyone, should seek to profit, no less, or seek ownership outside New Zealand, illegally and, many would say, immorally, of objects of rare and unmistakable value to the people of New Zealand—all the peoples of New Zealand. So this bill will provide a mechanism to shut down or to deem illegal such exports, and to give teeth to the law dealing with the illicit export of protected objects.

I guess it also brings to mind that it is probably quite unfortunate that the bill is not retrospective in its nature, and that those objects New Zealand has already lost, and that New Zealand citizens mourn, will not, unfortunately, be protected by this bill.

It is pleasing that the export prohibition in new section 5, proposed to be inserted in the principal Act by clause 9 in Part 1 of the bill, puts the onus of care on the exporter to make sure that the object it is exporting is not a protected New Zealand object. There will be few excuses that could be deemed reasonable in the circumstances, and that is good for the protection of our cultural heritage and objects.

Also reasonable is that new section 7, also to be inserted by clause 9, will allow for temporary export, because New Zealanders love to show the rest of the world their cultural heritage and the objects that are very precious to them. New Zealanders will be able to apply to the chief executive of the Department of Internal Affairs to have a temporary export of an object of cultural significance, and that temporary export will allow a certain period of time in which that object can be away overseas. So we will celebrate and continue to show the world our celebration of our heritage in those objects.

The other section of Part 1 that interests me in particular is the new section 7E, “Register”, which is also to be inserted by clause 9. The main point of this section is that if an item or object is on the register, it may not be exported permanently, and new section 7F allows the chief executive of the Department of Internal Affairs to take action if, in fact, that object or item has been exported illegally, in order to return that object to New Zealand.

That brings me to the reciprocity aspect of this bill, where New Zealand will be able to join with other nations to help each other to protect objects of important cultural value to us and to other nations. We will be able to help other nations to have their objects of cultural significance returned to their shores, just as we will be able to seek their assistance in the return of our special treasures.

Of importance also relating to the register, although it will not be published, in order to not put out there in black and white the sort of illegal trade that those who seek to do this awful thing might look at and deem that those are the objects that should be stolen, there will be enough public information about the types of objects that are captured within the definition. Therefore, it will fall on the shoulders of those people who are exporting goods to make sure that an object is not on the list.

I move, That the question be now put.

Thank you very much for the opportunity to take a call tonight on the Protected Objects Amendment Bill. I say “thank you” because it is important that the public of New Zealand understands that National is very, very much committed to the protection of our taonga. So, in that sense, we welcome the bill and we support it.

One of the things the bill has done is to make members in this House, as representatives of New Zealanders, think very clearly about the things that are important to us as New Zealanders. As a Māori, in particular, as there is so much of our cultural heritage that is Māori and unique, obviously, to New Zealand, I think it is very timely that this country takes steps to make sure that those things we consider worthy of protection because they contribute to our nationhood and our identity are protected.

In this day and age, it is neat that we all have the opportunity to think about what matters to us, and what matters to us is that we protect those things that help to identify us as New Zealanders. So many of those protected objects—those taonga—are Māori-based. We appreciate that all of those things belong to all New Zealanders, and that we all have a collective responsibility to make sure they are protected, not only for ourselves in our time but for the coming generations. Obviously, in a time of increasing globalisation, when States have a bit of a concern about the loss of their own identities, it is activities and legislation such as this bill that make it important for us to understand that we are New Zealanders, that we have things that identify us as such, and that we need to protect those things.

National is very committed to the underlying concept that there are certain things that we as New Zealanders hold dear to ourselves, because they identify us, and they make a statement about our sense of belonging to this place and to these islands in this part of the world. It is because those things are unique to us that we as lawmakers take the proper steps to make sure those things are protected. So it is absolutely proper, for instance, that Part 1—which we are debating now—places prohibitions on the export of certain objects, and that a process exists through which people who wish to export certain taonga must go to seek approval, which they may or may not get. That is right and proper.

Although it is not in order for us to congratulate the Minister—and I was not here for the earlier part of the debate—National supports the steps that have been taken. They are timely and they are important to us as New Zealanders. That is why we support the measure being debated tonight.

Also, I want to give a bit of tautoko to my colleague Tau Henare. We were in Government and Cabinet together when he took steps to have those taonga returned to New Zealand. That is proper, too. Those taonga may be of Māori cultural importance, but I do not think Māori take them for themselves. We look to all New Zealanders to take pride in what belongs to us. We look for the support of all New Zealanders to understand and appreciate the importance of things that, though they come from our culture, belong to us all as New Zealanders. On that basic premise I will not congratulate but will commend the Minister for bringing this legislation to the House.

I rise to indicate that New Zealand First will be supporting the passage of the Protected Objects Amendment Bill through the Committee stage and offer just a couple of comments.

Firstly, I agree with everything that has been said thus far by all the members who have spoken. This is very timely and appropriate legislation. It is legislation one wishes had existed many, many years ago. One might say that given the shape and tendency of New Zealand, and the way we behaved in the past, one might be quite surprised that such legislation should eventually be passed by this House. But time moves on, and Māori artefacts that were always considered to be taonga by Māori and to be curios by other people will finally, through this legislation, have the protection they have long needed.

It is a tragedy that my whanaunga, Te Arawa people, are having to deal with the issues of raising $1 million, $2 million, or $3 million—I do not know how many millions of dollars—simply to acquire something that is theirs and should never have been removed either from their rohe or from Aotearoa in the first place. We can surmise, guess, and speculate as to how such a taonga ended up where it did. The fact is that it left our borders, and that should never have been permitted. This bill is like shutting the gate after 1,000Kaimanawa horses have bolted, but shut the gate we will.

It is interesting that my longstanding friend the Hon Tau Henare raised the issue of Charlie Upham’s medals. I am an Upham class cadet and proud of it. Charlie Upham is one of my most important role models, and as a16-year-old I got to shape myself on that model. The thought and notion that his medals would be sold and become part of a private collection somewhere in the United Kingdom sent a shudder up my spine. More important, it did not sit well with the survivors of the 20th Battalion, and particularly those who served in his company. It did not sit well with them because they knew that Charlie had always said, from the day he was first nominated and told he had been awarded the Victoria Cross, that the medal was not his. He had always said that. He continued to repeat, until the day he died, that the medals were not his, but they belonged to his men. I have been fortunate in the last month or so to again have had close association indirectly with the Upham family, through the development of the proposal to film the life story of Charles Hazlitt Upham VC and Bar.

I am not able to tell the Committee at this point in time the final decision on those medals, but I am very, very hopeful that a good-news story will come out of it. I know that Phil Goff has had continued discussions in that area. This is one piece of militaria that I believe is part of our history and culture and should be protected by this legislation—whether it is remains to be seen.

I also point to schedule 4. Schedule 4 raises a lot of other questions for me as a former military person, and also as a person who dabbles in collecting military artefacts. There are a lot of taonga out there, held by families of the Māori Battalion, that were brought back into this country and that many people would look at and be aghast to know are here. They are Nazi memorabilia. Most people in this Chamber would be aghast and ask what we could possibly want with Nazi memorabilia in this country. The fact is that they are the spoils of war that were gained with the blood of our ancestors. If nothing else, the continued presence and the retention of those artefacts and taonga will always and forever serve as a reminder to us of the price that was paid for our freedom and right to stand in this Chamber.

My interpretation of schedule 4 is that those artefacts are covered under the legislation. Therefore, I hope that many of those artefacts that were recovered by our veterans—most of them illegally; we know that—and were secreted away but have subsequently come to the fore in private collections will not be forced to be destroyed, buried, melted down, or shipped back to the country from whence they came. I hope that they too will be considered as taonga, as heritage items, that were fought for and paid for with the blood of our forefathers, and that, in time, they will come to be valued taonga by our mokopuna, and their mokopuna as well.

This is very good legislation, and I welcome it.

I am grateful for the many contributions from members tonight. I am particularly grateful to Ron Mark for his useful and thoughtful contribution to this debate. I agree with his point, and I think he reflects very deeply on the fact that international artefacts may well be of deep heritage value to New Zealanders, and important in telling the New Zealand story.

I think that his reflection on the Upham medals is a very good reminder that what is of particular and specific value for one generation may have a very different value for the next generation. I am often reminded of the huge response by New Zealanders to the Te Māori exhibition, which included what is seen by many New Zealanders to be Māori decoration or craft. There was debate about what was art and what was craft—almost as if craft were something that was irrelevant.

When exposed to an international audience, suddenly many New Zealanders finally understood that it was great art on an international scale and fundamental to what New Zealand is. For me, that was a great reminder of how we need to remind each generation of the values, as well as the artworks and often the technology, of a previous generation. The Protected Objects Amendment Bill is about trying to find an international standard by which each nation values what it has, and asks other nations—other cultures—to respect that value and importance. Because only if we have reciprocal arrangements can we get what is valuable to us returned to us.

Progress to be reported presently.

House resumed.

The Chairperson reported progress on the Protected Objects Amendment Bill, and no progress on the Coroners Bill.

Report adopted.

The House adjourned at 9.56 p.m.