Protected Objects Amendment Bill

Actually, I thought we were on Part 3, but if we are on the title then that is fine. The title Protected Objects Amendment Bill is, I would suggest, a bit of a misnomer, because the bill is really more about taonga tūturu as opposed to protected objects. I challenge the Minister in the chair, Judith Tizard, to take a call and answer the question of how people are going to know, when they find taonga tūturu, that they will be subject to a fine of $10,000 to $20,000 if they do not identify those objects to the appropriate authority. What sort of education will be provided to the public about their responsibilities in regard to taonga tūturu?

I put it to the Minister that I doubt whether any consideration has been given to any sort of public awareness campaign so that the public—and landowners—will know that they now have some responsibilities following the discovery of taonga tūturu. Nothing has been talked about in terms of how the Government is going to educate the public so that people will know, if they find any of these protected objects—which are taonga tūturu—they will be fined $10,000 to $20,000 if they do not then front up to the proper authority and declare those objects. I put it to the Minister that barely a landowner in this country knows that he or she will have those sorts of responsibilities and will be subject to that sort of a fine. Perhaps, this time, the Minister may like to take a call and explain to me what the Government is going to do in terms of a publicity campaign in that regard. In the principal Act, the fine was absolutely miniscule. It has gone up from something like $500 to $10,000 to $20,000, which is absolutely extraordinary. That is a huge leap and a huge onus of cost on people who, in all innocence, are unaware of the provisions of this legislation. They can be pinged by people who will not give them any due consideration and will find them guilty, regardless of their absolute innocence and unawareness, or lack of knowledge, of this situation.

If one finds any taonga tūturu, that is OK; one has to go and notify the general authority. But if one finds a protected object or a European artefact—if one could call it an artefact, because the word “artifact” is used in the bill only in relation to Māori objects—nobody cares. It is a case of finders keepers—people can destroy the object or do whatever they like with it. But if the object happens to be a taonga tūturu, well, hey, one has to go and notify the appropriate authority or one could be fined $10,000 to $20,000. Yes, if it is a Māori taonga tūturu, if it belongs to Māori, then there is that fine to make sure that the finder does what he or she is told to do: go and see the appropriate authority, or lose $10,000 to $20,000. But, hey, if the object is a European artefact, it does not matter. That is a situation of finders keepers. The finder may burn a European artefact or throw it away; it does not matter.

That is one of the concerns that I have about this bill. It throws out the principle of finders keepers in terms of taonga tūturu, but we still have finders keepers in terms of anything that is a European object or is not classed as taonga tūturu according to the definition in this bill. That concerns me, and it concerns me particularly when such a massive fine is being imposed on unsuspecting landowners who may actually happen to find a taonga tūturu that will now come under the definition of an artefact in the context of this new legislation. Although we are happy to support the protection of taonga tūturu and protected objects, we just wonder how far this bill goes. We wonder what the Minister intends to do about educating the public, and about the potential for massive fines for any landowner in this country—fines landowners can ill afford—who may actually happen to find one of those objects. I do not believe anybody in this country, other than those of us in Parliament, is aware of the significance of this legislation.

I would just like to reacquaint the Committee with the matter that I brought to the Minister before, in relation to the term “artifact” now being changed to “taonga tūturu”. On looking at the definitions in the principal Act, one sees that those definitions are now to be changed. Instead of the definition of “artifact”, we will now have only the words “taonga tūturu” and not the words “protected New Zealand object”. That quite clearly shows that only taonga tūturu, which are Māori protected objects and not New Zealand protected objects, are protected in this instance. In the context of the bill, protected New Zealand objects in the wider sense do not seem to matter as much as taonga tūturu. The elevation of Māori taonga tūturu is huge in comparison with other protected objects.

I really wish honourable members would read the bill that is before the Committee. This legislation will become known as the Protected Objects Amendment Act 2006. It covers protected New Zealand objects, which are defined in clause 6—as we have already debated—as “… 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; …”. It also includes stolen protected foreign objects. As the previous speaker mentioned, taonga tūturu are a new introduction.

The point of the bill we are in the process of passing, which has been considered in great detail over many years by the House, is that we are recognising a range of protected objects—Pākehā, Māori, introduced foreign objects—and we will have to set out to explain to New Zealanders this reasonably modest change to the law. The Government has set aside $185,000 in the 2005-06 Budget for implementation, of which $100,000 is one-off funding for initial implementation costs, with an additional $85,000 appropriated for out-years on an ongoing basis to cover the expected increased administration costs of the Protected Objects Act. The extra $100,000 in the first year is to be spent developing a communications strategy with information reprints, publicity, and website development; training New Zealand Customs Service staff about the new regulations and establishing a national register of protected objects; and identifying and engaging expert examiners.

We recognise that this measure is slightly new, but I have to say that most New Zealanders take a very responsible attitude when they find objects that are obviously of value. Most people take them to their local museum. That is a very good thing for people to do and they should continue to do that, because that is the place where most New Zealanders—who do not have a venal view of our collected heritage, regardless of whether it is Māori or Pākehā—go to view those objects.

The legislation also means that New Zealanders and foreigners will not be able to collect up New Zealand objects and export them. This is an exciting new development. As my friend and colleague Harry Duynhoven has pointed out, this will mean, for example, that vintage tractors and vintage sports cars will not be able to be exported in the rather casual way they have been. They are important parts of New Zealand’s technological heritage.

I am very satisfied with the bill, and I look forward to working with members across the Chamber to make sure that people across New Zealand have good information about this exciting legislation. The bill, of course, is also joining New Zealand up to two major international covenants, which will mean that when New Zealand cultural objects are exported illegally, we can have them returned to New Zealand. That is a very exciting thing. It means that we also have similar obligations to other countries.

💬 Sandra Goudie: How will the Minister educate the public?

I do appreciate the energy of members opposite and suggest that they put some of that energy into reading the bill that is before us.

I am not going to go into the detail, although just on that last point I think the Minister might want to refresh her memory on the definitions of “substantially physically authentic”; I think it might be a little bit different in terms of vintage cars. But, as we are looking at the title, I want to just step back and look at the broader purposes of the legislation. I will not try to go through like a school-ma’m, marking people for their speeches, but I thought that the debate we had when we first went into Committee on this bill was quite interesting, especially to me as a new member of the Parliament. In this rather strange dialectical process on which this is modelled, from time to time one can feel the House come together quite genuinely, I think—not just in a formalistic sense. I had a strong sense of that when we were first in Committee on this bill, and I thought that was noteworthy. We listened to one member tell us, with a degree of justifiable emotion, I thought, about her community’s attempt to get back a treasured taonga for the community—unfortunately unsuccessfully. I think that is the sort of issue we are dealing with.

I agree with the Minister that the bill is related in its broader purpose to New Zealand’s national identity. I have always felt that this country—the last place suitable for human habitation on a large scale in the world, and that was inhabited by human beings—must be considered, above all other countries, as a work in progress. I just have a feeling that the kind of coming together we had in the Chamber on this debate on the last occasion we were in Committee on the bill probably would not have happened 15 years ago. There is a growing consensus about this issue, of which this is merely one part—but, I think, an important part—and it struck me very much at the time.

The National Party is very happy to support the bill. We support the objectives, although, as members will have heard, some of us have questions in our minds about certain definitions. Sensible compromises generally have been struck over some issues that are not necessarily straightforward, such as the definition of “comparable examples” dealt with in clause 6, and the matter I referred to earlier about “substantially physically authentic” in new section 7A of new Part 1 inserted by clause 9.

Although the bill may not be perfect—because some of those definitional boundaries, I guess, are always a little bit hard to draw—we think it is a good one. We think it will do the business. It will bring the terminology up to date with recent legislation and will put in place appropriate penalties for serious breaches. I hope some common sense will be applied by those responsible for that process in the future. It does, indeed, provide a proper process for the registration of protected objects. Some of us have had time to look at the detailed provision on the role of experts and the very important exemption they have from any legal liability for giving their best-endeavours assessment of the historical significance of a contested, protected object. I think there is some reasonable, sound stuff in the bill, which serves the country well.

I am also pleased that the legislation is applicable to foreign protected objects. I have not yet, because of clash of opportunity, been to see the Constable collection—

💬 Hon Judith Tizard: You must go.

I certainly will. I know my colleague went and was obviously hugely impressed. I saw a presentation on it on television. Although perhaps in a technical sense the collection is a huge part of British culture, and it probably has a price tag on it for insurance purposes, in every real sense it is a collection priceless to that culture—a culture that has, of course, played a very important part in the formation of our culture. I am glad that the bill gives practical effect to the controlled import and export of great cultural artefacts, such as the Constable paintings, and, of course, to our own protected objects in that respect.

We know that the matter of illicit trade is one of real moment. I have seen estimates that members have drawn in debates before I arrived in Parliament, between $4 billion and $10 billion, and one could buy a couple of Boeing 747s or Airbuses for that amount. This is not a small issue. In my earlier comments I drew attention to the underlying issue by reference to the notorious example of the Elgin Marbles. The bitterness about the export of the great cultural objects of the Parthenon is still felt, not just in Greece but around the world—in my personal opinion it is obviously shared by many, many other people. So it is not a small issue. What makes us a people is not just material objects, important though they are, but also a sense of identity. This bill is a vital part of that, and I am pleased it will give us the ability to sign up to the International Institute for the Unification of Private Law (UNIDROIT) convention—I never know how to pronounce that acronym in English, but it is pronounced UNIDROIT in French; maybe it is the same in English—and the Unesco convention. I have been told that if ever I speak in French, I will be expelled from the National Party, so I will not do that.

💬 Hon Judith Tizard: What about Latin?

💬 Christopher Finlayson: Latin is fine.

Yes, Latin is fine. The bill allows a person to sue in a foreign court for the return of stolen cultural objects. Also—and I think very importantly, although one has to feel sorry for the poor mug who buys something that is stolen without realising it—we have the convention that outlines the only practical approach, which is that a property right is not extinguished by on-sale. So that is a valuable adjunct to this legislation.

A number of members have drawn attention to the fact that the bill does not have retroactive effect, and I think there is a certain sadness on the part of all of us that this is the case. As members pointed out, it is a bit like shutting the gate after much of the horse has bolted—in this case, some of our own prized cultural objects. I will not make more than a veiled reference to what happened at the World Trade Organization overnight, but this is a prime example of the excellent being the enemy—of the good people walking away from what is actually a good outcome simply because they wanted an excellent outcome. Happily, that is not the case here. So although one can certainly criticise those two conventions as being well short of excellence, particularly in respect of the issue of retroactivity, I think the mood of the Committee is a good start, and we welcome that.

The definitions are quite interesting. Unfortunately, if we take a purist view of it, the bill does not apply to items stolen from private collections, but it applies more broadly than just to museums. I note that the definitions include, for example, religious or secular public monuments, and I am thinking about the recent theft—fortunately temporary—of Pānia of the Reef in Napier. In terms of my own personal history, Napier was a very important place in my upbringing, and I am sure that people who are Napier citizens felt far more strongly than I did. We were lucky we were dealing with rank amateurs there. Probably, the international price of Pānia of the Reef was relatively modest, its emotional significance being far greater. I think our immediate feeling over that was just how the illicit trade—in this case, fortunately, by just a bunch of amateurs—of these objects can strike right at the heart of our citizenry. They are very much a part of us.

This bill is a very good initiative, and National is very pleased to support it.

I am very pleased to take a call on the title and commencement. I hope a number of New Zealanders are listening to this debate—this might be one debate they are interested in. I know from comments I get from outside, in real New Zealand land, that in terms of a lot of the debates that go on in here, a lot of our fellow citizens have no idea, some of the time, what we are going on about. But I think each and every New Zealander has a stake in the Protected Objects Amendment Bill. The things we seek to protect and to forbid the illegal export of, and the penalties we make sure we have for people who deal with our things of value in ways that are not amenable to the protection of our heritage, are, I am sure, of importance to each and every New Zealander. It might be, for a change, that those listening will appreciate what we are doing this evening.

The bill will become the Protected Objects Amendment Act, which will replace the Antiquities Act 1975. I guess, when we think about it, the word “antiquities” is in itself a bit of an antiquity. As long as we have made sure that nothing that was protected in the original Act has been left out by our changes in the current bill, then, hopefully, we will do ourselves, as New Zealanders, and our fellow countrymen and women, a favour. So it will be good when this legislation finally comes into force.

As I have already said, I commend the Government for bringing this bill forward. Our heritage, culture, identity, and sense of nationhood are all tied into the underlying principles of this legislation. I made the comment in an earlier speech that in a time of globalisation, when we are all suddenly becoming as one—but, thank goodness, we are not—those things that we consider unique to ourselves as New Zealanders become all the more important, and it becomes all the more important that we take proper steps to protect them.

I look at schedule 4. The Minister in the chair, Judith Tizard, made some mention of it in giving some level of comfort to my colleague Sandra Goudie, who expressed concerns. I may not get this right, but she seemed to think that all things Māori were protected, and she asked about all things other. As a person who descends from both heritages—my mother’s father was English—I feel proud and privileged to be the inheritor not only of the Māori tradition but also the great tradition of the British. Some people may think, since most of my speeches to this bill have concerned Māori custom and taonga Māori, that I am worried only about taonga Māori, but that is not the case. I was at the opening of the Constable exhibition, as well. It is such a splendid exhibition. I urge those colleagues who are able to go and see it during the time it is at Te Papa to do so. I consider that exhibition to be part of my heritage and my culture vis-à-vis the good fortune of having had a Pākehā—English—grandfather. If that collection belonged to us, I would be as equally concerned that it be protected under this bill as I would be about any of the taonga Māori that I am also fortunate to be a part of through my Māori heritage.

Schedule 4, “Categories of protected New Zealand objects”, refers to archaeological, ethnographic, and historical objects of non - New Zealand origin that relate to New Zealand, and to art objects, including fine, decorative, and popular art. Those are all included and protected in this legislation. I say that just so that my colleague Sandra Goudie feels a measure of comfort. The schedule also refers to documentary heritage objects and ngā taonga tūturu, which latter have been the subject of a lot of the discussion tonight.

💬 Hon Judith Tizard: And incunabula—they are in schedule 3. I want Sandra to be sure of all of them.

Yes, that is in schedule 3, as well. Sorry, I have gone straight to schedule 4. Absolutely, schedule 3 and schedule 4 set out very, very clearly that all those things we—or, presumably, most of us in this Chamber—inherit, are to be protected. It is so difficult at first when members are just brought in as cling-ons to make speeches and have not actually sat in select committees—I did not sit in this committee either, although fortunately National had some very good representatives on it. Members do tend to get a little bit muddled when they are called down to the Chamber to make speeches. They think: “Hang on!”. They may well have thumbed through the pages of this bill thinking: “Well, I cannot see the protection …”.

So I think that Sandra was absolutely right to raise the issues she did, but I am satisfied—as a person of English origin, as well—that those things of importance to Pākehā New Zealanders are as well protected as those taonga tūturu that come from the Māori culture. She is still saying no, but that is OK.

National supports the bill anyway. It is right, it is proper, and, by supporting it, we then align ourselves with the two treaties: the UNIDROIT—my esteemed colleague Tim Groser just did not even want to try to pronounce it, so who am I to think that I could—and Unesco conventions, to which we will become party. Again, that measure would seem like it is long overdue. Those two conventions, obviously, make sure that not only do we have the necessary protections here in New Zealand, but also we have the protections to follow or to retrieve taonga, artefacts, and things of great value to us as New Zealanders, wherever they are.

This bill is to commence—when is this legislation to commence? As soon as possible, I guess. Perhaps the Minister will just—

💬 Hon Judith Tizard: 1 November.

OK—so that is only 2 or 3 months away, and it is very important that it does commence.

I did have a question about the commencement of new section 13, which is provided for in clause 2. That section will come into force on a date appointed by the Governor-General by Order in Council. I would ask the Minister, what does that mean?

💬 Hon Judith Tizard: That means—

When will that be, though?

💬 Hon Judith Tizard: 1 November.

So it will be the same date as the commencement of the Act. Well, that is good. It is all great. This is about our identity and our sense of nationhood, which is so important in a time of globalisation. We could easily lose those things as the global village comes closing in on us. In terms of our culture and our heritage, both Māori and English—and I inherit both; lucky me—both streams will be protected. National supports this bill.

I do not want to disagree with other honourable members, especially with my learned friend who has just spoken and for whom I have enormous respect and affection, but I thought that the Constable exhibition was pretty boring and chocolate boxy myself. But there we are; I have to admit I am a philistine.

As Mr Groser has said, National supports this bill. It amends and improves the Antiquities Act, which provides for a system of domestic control over only the export of cultural heritage objects, but, as the Minister has indicated, does not provide the means to recover objects that have been illegally exported. That is why, as Mr Groser said, the Unesco convention provides specific structures for international cooperation in the cross-border recovery of items that are significant in terms of New Zealand’s cultural heritage. That is also why the International Institute for the Unification of Private Law (UNIDROIT) convention complements the Unesco convention and allows for a person to sue in a foreign court for the return of stolen cultural objects.

This is a very interesting issue, which I am pleased the New Zealand legislature has finally addressed. In previous speeches I have referred honourable members to decisions of the English Court of Appeal and the House of Lords in a very interesting case called Attorney-General for New Zealand v Ortiz. In that case, the then Attorney-General—I think it was Jim McLay—sought possession of a Māori carving and an order for delivery up of that carving. It had been sold to an Englishman and was found to be for sale in London.

But the Court of Appeal in England held that forfeiture to the Crown under the relevant section of the New Zealand Historic Articles Act, which was the precursor of the Antiquities Act 1975, was not automatic, and the act had not happened here. Secondly, the English Court of Appeal stated that the section was, in any event, unenforceable in England. The House of Lords stated that no seizure had taken place by the New Zealand Customs Service or the New Zealand Police and, therefore, the Crown was neither the owner of the object nor entitled to possession of the article in question—although the House of Lords declined to embark upon the difficult discussion of whether the Historic Articles Act was a public law that could not be enforced in England because it was an Act done in the exercise of sovereign authority that would not be enforced outside New Zealand.

It was interesting to observe that almost 30 years ago Lord Denning, in the English Court of Appeal, concluded his judgment by stating: “The retrieval of such works of art must be achieved by diplomatic means. Best of all, there should be an international convention on the matter, where individual countries can agree and pass the necessary legislation. It is a matter of such importance that I hope steps can be taken to this end.”

Actually, Lord Denning’s comments on the issue were themselves the subject of comment by the former President of the New Zealand Court of Appeal in the famous “Spycatcher” case, which was heard in New Zealand in early 1988, and I must say that I have always preferred Sir Robin Cooke’s approach. In that case, Sir Robin stated that the MI6 agent Mr Peter Wright owed allegiance to the Crown in right of the United Kingdom, that New Zealand has the same sovereign as the United Kingdom, and that the Queen’s courts should protect their interests wherever they originate. If that approach to the law had been taken, then that would have been very welcome in this area, especially as between England, Australia, Canada, and New Zealand. But, unfortunately, that is not the way that New Zealand law—and English law—has developed. Hence we have the need for international conventions, incorporating not only Commonwealth countries but other countries, as well. So that is the rationale behind why we have needed an international convention—because otherwise international law would get in the way.

My concluding comments deal with clause 2 of the bill, which deals with the commencement provisions. Subclause (1) provides: “Section 13 comes into force on a date appointed by the Governor-General by Order in Council.” Of course, that is the part that implements the two international conventions. The rest of the legislation comes into force on a specified date. We have just heard from the Minister that that date will be in November, although we do not know when the Order in Council will be signed by the Governor-General.

Members should note also that the new regime has no retrospective effect—and that point was made by Mr Mark the other night. It takes effect only from the date appointed by the Governor-General. Presumably that is the way it will also be enacted in reciprocating States, which means that many valuable objects are already lost to New Zealand and will not be recovered. But from what I can see—and I am sure that the Minister will agree with this—there is no way around that problem. One can only hope that this legislation and the structure it implements will in the future prevent a repeat of the very unfortunate facts that gave rise to the Ortiz litigation.

As I said, National supports this legislation, and the sooner it is in force, the better it will be.

Clause 1 agreed to.

The question was put that the amendment set out on Supplementary Order Paper 48 in the name of the Hon Judith Tizard to clause 2 be agreed to.

Clause 2 as amended agreed to.

Bill to be reported with amendment presently.