Cultural Property (Protection in Armed Conflict) Bill

on behalf of the Minister for Arts, Culture and Heritage: I move, That the Cultural Property (Protection in Armed Conflict) Bill be now read a first time. At the appropriate time I will move that the bill be referred to the Government Administration Committee for consideration.

This bill relates to New Zealand ratifying the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, commonly called the 1954 Hague convention, and its two protocols. I am sure that members will be aware that the 1954 Hague convention arose out of the experience in World War II when the Nazis, in particular, were prone to stealing the cultural properties of other nations that they had invaded and occupied. Vast amounts of cultural treasures were translated into Germany, some never to be seen again. New Zealand ratified the convention in Paris on 24 July this year, and the bill enables us to accede to the two protocols to the Hague convention. The convention and its protocols work for cultural property in a similar way that the Geneva convention and its protocols do to safeguard civilians in the event of armed conflict.

The bill has three main, relatively simple purposes: to create a number of criminal offences in relation to cultural property, to prohibit trade in cultural property removed from occupied territory, and to prevent unauthorised use of the convention emblem. Accession to the two protocols will reinforce our participation in the Unesco family as a champion of the protection of cultural property.

National will support the first reading of this bill. As the Minister said, it meets various obligations that are required before New Zealand can accede to the first and second protocols to the 1954 Hague convention, and, as the Minister said, we ratified the convention on 24 July 2008.

The convention was adopted in the wake of massive destruction of cultural heritage in World War II. It is the first international treaty that focuses exclusively on protection of cultural heritage in the event of armed conflict. As can be seen by the bill, the convention covers not only movable but also immovable property, and this includes monuments of architecture, art, or history, archaeological sites, works of art, manuscripts, books, and other objects of artistic, historical, or architectural interest, as well as scientific collections of all kinds, regardless of their origin or ownership.

Indeed the issue of how to protect property in a time of war could be said to be as old war itself. Consider the Punic Wars and Cato the Elder’s famous clarion call: “Carthago delenda est.” The attitude of total warfare toward Carthage resulted in its complete destruction at the end of the third Punic War. The fields were sown with salt and the city was ploughed over. Many years ago I visited St Petersburg, formerly known as Leningrad, then Petrograd. Someone pointed out to me various markers, which were actually not far from the Winter Palace. They showed just how close the Wehrmacht came to the centre of that magnificent city. Places like Tsarskoye Selo, now known as Puskhin, were practically destroyed by the Germans, and the damage done in St Petersburg was also enormous. Think, too, of Stalingrad, Coventry, London, and, of course, what happened to Dresden in the closing months of the Second World War. The beautiful Saxon heritage of the city was laid waste, and, indeed, some buildings, like the Frauenkirche, have only recently been finally restored.

As the Minister mentioned, the theft of paintings, for example, from the Louvre by the Nazis in the Second World War is another illustration of what happens to cultural property in a time of conflict. Goering and others looted museums and art galleries and took their ill-gotten gains back to Germany with them. That is why the issue raised by this bill and the convention is such an important one, and why it behoves this Parliament to deal with this issue. It is a very, very important issue.

One issue we will want to look at very carefully in the select committee is the all-important defintion of “cultural property”. It could be said that one of our biggest cultural treasures is our unwritten, uncodified Westminster constitution, and one may well ask about the damage to our constitution in an intensive period of warfare, namely this election year. Of course, our constitution is the property of the people, not the Government, but this administration treats it as its plaything and as something it can meddle with for its own advantage. I need only mention the Electoral Finance Act, which is possibly the worst legislation ever passed by this Parliament. With breathtaking arrogance, the Government rammed this legislation though the House at the end of 2007, despite opposition from every newspaper, the Human Rights Commission, the Law Society, and thousands of citizens. The Act makes it nearly impossible for those opposed to the Government to campaign against it. It undermines freedom of speech, and, in fact, it is so difficult to interpret that there have even been complaints recently to the Electoral Commission about the Film Archive showing the dancing Cossacks advertisement, which was first screened by the National Party during the 1975 general election. Apparently, some Labour stooge is alleging that it breaches section 5 of the Electoral Finance Act.

If the Act is retained—and let me assure the House that one of the first things a National Government will do is ditch it—one out of three New Zealanders will find his or her speech severely curtailed, all because the Government believes in conspiracy theories and cannot bear the thought of losing an election. So that is a very important issue of constitutional cultural property that we will need to consider during the course of the Government Administration Committee’s deliberations.

Finally, I might observe on the Electoral Finance Act that it was passed in such a partisan manner that the Government threw out the convention of bipartisan support for electoral reform, so I note with irony that the Green Party has finally woken up and realised what a mess it was involved in with the passing of that bill. Indeed, their co-leader recently said that all the confusion could have been avoided if the regulated period had started on 1 April, not 1 January, which is exactly what I attempted to achieve by way of a Supplementary Order Paper, but it was voted down by, among other people, the Greens. Then today we had the most recent assault on our constitution. The Labour Government is intending to appoint another committee of review.

The exact scope of the legislation we will be looking at in the select committee is unclear. Clearly, it will address the issues I mentioned in the first part of my speech about the protection of both movable and immovable property in a time of armed conflict. But it is beyond argument that our constitutional cultural property has also been severely damaged by the Huns and Visigoths on the other side of the House. We have a Government that is disdainful of the constitution and its importance. It has contempt for the rule of law. It has politicised the Public Service. It has breached fundamental human rights, like the right to free speech. Destruction of cultural heritage is a terrible thing indeed. Just as terrible, if not more so, is a decayed Government that passes repressive laws and does not practise what it preaches. Notwithstanding that, we support the first reading of this legislation, and look forward to careful consideration of it at the Government Administration Committee.

💬 Darien Fenton: Oh!

I know that Darien Fenton, who is an assiduous member of that committee, cannot wait for the bill to get there.

I rise to support my most esteemed colleague Christopher Finlayson. National is supporting the Cultural Property (Protection in Armed Conflict) Bill.

When I looked at what this bill actually does, I wondered about what would happen if we were suddenly in the midst of armed conflict. I sincerely hope that the country we are in conflict with, no matter which country it might be, has read the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. I hope it has that piece of paper close at hand and knows that if we are all gathered here in the House with the rest of the population of Wellington, we are safe. If it has not read that United Nations document, I wonder where that would leave us—which creek we would be up and whether we would have a paddle. But if we are in this building and the country has read it, we may be protected. A heck of a lot of reliance is being placed on a piece of paper.

The other thing that really intrigued me was what happens when, in the midst of armed conflict, that country—whether it has read the convention or not—bombs Parliament House. Does that particular country then get hauled through the courts? With the penalties in the bill for criminal offences against cultural property, will their commanders be extradited to New Zealand, where we will take them through a court of law to bring about some justice for the loss of a building? Of course, they would never reinstate the building. However, we may lose some of the very poor legislation that has been put through Parliament over the last 9 years, and we could start afresh—we could certainly do so on the Electoral Finance Act. So actually, when we think about it, we see that there are some positives! I was intrigued to see that a soldier is actually being convicted under the War Crimes Act. We have to wonder how far this type of responsibility will actually go, how many of those in charge would be liable for prosecution, and whether we could bring that into effect.

When I looked further at the support for this convention, I saw that we received only a handful of submissions, including submissions from the Historic Places Trust and one or two people who support our heritage—a worthy cause, of course; we all value our heritage. Only last night I discovered the ship manifest for the Lady Egidia, which docked in Port Chalmers with 400 passengers in 1861. That was a huge number of immigrants to come into New Zealand in 1861. I am quite interested in that type of thing. I value our cultural heritage—as I know many, many New Zealanders do—and it is important to protect it. However, whether doing that is feasible in a realistic sense during a time of conflict remains to be seen.

We have become a signatory to the Hague convention. What does that mean? We now have to go through the process of deciding which of our buildings or cultural heritage assets are the most important to us. For instance, we have to decide whether the building we are now in, Parliament House, is one of the most important places to us in terms of our cultural heritage—I would suggest that it is. Once we have decided, we can at that point put an emblem on the front of the building, identifying it as being protected under the Hague convention.

It is a rather interesting emblem. It looks like an open, upside-down envelope. If we put that on the front of the building, then everybody will know that it is protected under the Hague convention. In the event of conflict, people from another country will see that. In fact, they probably could see it from their own country, because satellites are so powerful these days that we can google anywhere, home in on a street, and see who is there. That is what satellites do, so it is not too silly to suggest that other countries might be able to see the emblem. It is also not too silly to suggest that it might prevent this building from being bombed—or whatever technology is used at that time to destroy something or someone. Advances in technology are such that people can target pretty precisely where they want to do the most damage.

Next we will have to decide which aspects of our cultural heritage we want to protect the most. We will also have to provide a limited number of refuges intended to shelter movable cultural property in the event of armed conflict. Cultural property will need to be moved from one place to another to ensure its protection, and we hope that the site where it is stored will protect it. Under the legislation, certain centres will be defined as “containing monuments”—we must not forget our monuments. A huge number of our monuments pay tribute to all of those who died in wars while protecting our democracy and freedom. Sometimes when we are debating a bill in the House, we feel like we are on the beaches of Dunkirk, trying to hold back yet another tidal wave of poor legislation that is imposing costs on our citizens—the people of New Zealand—by whatever means. That legislation has been brought about through the misjudgment and misguidedness of the current Government as it puts more and more costs on to the citizens of New Zealand.

💬 Mr DEPUTY SPEAKER: Order!

I will come back to the bill, Mr Deputy Speaker. The debating chamber is an important war memorial. It is a part of our cultural heritage. It feels at times as if we are on the beaches of Dunkirk; that evacuation is also a part of our heritage, and the monuments to the world wars are very much a part of it. That is why I refer to the fact that when one is standing here debating bills, it feels very much like one is trying to protect that cultural heritage from an avalanche of legislation that constantly undermines our freedom, democracy, and choice. So that is the linkage to those principles. Unfortunately, they are not protected by the Hague convention from being undermined by the current Government.

We go on to the decision about which cultural property deserves enhanced protection. Well, enhanced protection is of course for “cultural heritage of the greatest importance for humanity;”, as the bill states in article 10(a) of schedule 3. Article 10(b) states that the property must be “protected by adequate domestic legal and administrative measures”. Depending on the degree of intention from a local authority, that could be a light-handed or a heavy-handed approach to the protection of our cultural heritage. The other point, in article 10(c), is that the cultural property must not be “used for military purposes or to shield military sites”. [Interruption] I beg the member’s pardon?

💬 Hon Steve Chadwick: Tell us about the mangrove swamps.

They do not need protection. We have a lot of mangroves around the country. I do not know whether we would really want to claim those to be a cultural heritage plant, because—no, I do not even want to start going there.

As I was saying, article 10(c) ensures that people do not run a war from a cultural heritage site protected by the Hague convention.

I just hope that any nations that decide to wage war upon us have read the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and understand that we have signed up to it—we ratified that convention on 24 July 2008—and that we will meet those obligations. We hope that other countries have read about our commitment to the Hague convention, and will respect our cultural heritage accordingly.

New Zealand First supports the Cultural Property (Protection in Armed Conflict) Bill. I believe that some consideration will have to be given in the Government Administration Committee to the definition of movable and immovable property. This has been touched on by an earlier speaker. “Movable property” and “immovable property” are terms that are not usually used in New Zealand land law. We usually refer to real estate or personal property; movable and immovable property are terms from European civil law. I expect that in the select committee a clearer definition will have to be given of what is intended, and that we will go back to Roman law principles and suchlike. So that matter will need to be clarified.

I suppose that if this legislation had been in force during the Greek civil war, the damage to the Acropolis might not have been undertaken, because the Greeks kept their ammunition in the Acropolis, and one day, inevitably, it blew up to a large extent. One thinks, of course, of New Zealand’s efforts in the Second World War and of what happened at Monte Cassino. The Germans were ensconced there and, of course, the inevitable action was taken to try to get them out. Those problems do arise.

If we read the bill and look at Part 2, which relates to offences, we see that this part makes it clear that an offence is committed only if the act is intentional and the person either knew or had reason to believe that the property was cultural property. In addition, the act must occur in the situation of hostilities. Again, an offence is not committed if the person is acting in accordance with the convention and the second protocol—for example, if the person is acting by imperative military necessary. Imperative military necessity is explained in article 6 of the second protocol.

Further offences relate to cultural property removed from occupied territory. Clause 15 creates new offences of removing cultural property unlawfully from the territory of a party to the first protocol, other than New Zealand, while the territory is under occupation. Clause 17 creates new offences of dealing in smuggled property or in enhanced protection smuggled property. The offences apply only to things done in New Zealand.

This is one of those bills where the bill itself is 32 pages long but the schedules are 54 pages long, and it will be a very interesting time working them all out in the select committee. New Zealand First supports this bill going to the select committee and, on the face of it, it supports it generally.

Tēnā koe. Kia ora tātou katoa e te Whare. On behalf of the Māori Party I rise to make a very short statement on this Cultural Property (Protection in Armed Conflict) Bill, which defines cultural property as the cultural heritage of all people. That includes monuments, archaeological sites, historic buildings, works of art, manuscripts, books, scientific collections, archives, museums, libraries, and refuges. And that is it. There is nothing Māori in here, at all. That is kind of surprising when we are talking about cultural property, and even more surprising when we are talking about protection in armed conflict, given the efforts of Māori involved in armed conflict on behalf of this country, and given also the number of Māori MPs in Labour who allowed this to go through completely de-knackered of any Māori content.

Māori, of course, refer to the claim for Wai 262 when they talk of cultural property—a claim lodged with the Waitangi Tribunal to protect and preserve indigenous flora and fauna and associated cultural and intellectual heritage. It was filed in 1991, on behalf of six claimant iwi, by Dell Wīhongi of Ngāpuhi, Saana Murray of Ngāti Kurī, Te Witi McMath of Ngāti Wai, John Hippolite of Ngāti Kōata, Tama Poata from Te Whānau a Rua in Ngāti Porou, and Katarina Rīmene of Ngāti Kahungunu. The tragedy of Wai 262 is that only one of the claimants is still living today. And still we wait, and we wait, and we wait for a finding.

Wai 262 is code for the exclusive and comprehensive rights to flora and fauna, cultural knowledge, and property as taonga that is protected by article 2 of Te Tiriti o Waitangi. Wai 262 is also a claim that says that the Crown has failed to actively protect the exercise of tino rangatiratanga and kaitiakitanga over indigenous flora and fauna and other taonga, and also over mātauranga Māori; that the Crown has failed to protect the taonga itself; that the Crown has usurped tino rangatiratanga and kaitiakitanga of Māori in respect of flora and fauna and other taonga through the development of policy and the enactment of legislation; and that the Crown has breached the Treaty of Waitangi by agreeing to various international agreements and obligations that affect indigenous flora and fauna, intellectual property rights, and rights to other taonga.

I will not speak for much longer, but I will say that I was also interested to hear the reference made to constitutional significance earlier in this debate. Yet again, unsurprisingly, there was no mention of the foundation of our constitution, Te Tiriti o Waitangi, which gives rise to the thought that perhaps the Māori Party might recommend the inclusion of a Treaty of Waitangi clause in this bill in order to give Labour’s Māori members the opportunity, at least once in the last 3 years, to vote to support the Treaty of Waitangi.

The Māori Party will support this bill going to the select committee, but only because we know that there are a lot of people out there who will want to challenge the racist basis of this bill and the very exclusive way in which cultural property has been defined and valued. Tēnā koe.

I rise to support the Cultural Property (Protection in Armed Conflict) Bill and I am very pleased to do so, because it is certainly time that we acceded to the first and second protocols of the Hague convention that we originally signed way back in 1954 when the world was mourning the loss of cultural heritage that was destroyed in World War II. These days we cannot imagine the effect of the wholesale slaughter of soldiers and civilians that went on during those years from 1939 to 1945, and it was quite common when our parents were young to talk of young women who had lost their sweethearts during the war. Many of them never married, and recently $1.5 million was gifted to Wellington College by 92-year-old Violet Dunn in memory of Tom Paul who was killed during World War II. She wanted to ensure that her beloved’s memory would endure by giving the money to benefit the school he attended from 1931 to 1935.

Similarly, we find it hard to imagine how people felt about the wholesale loss of cultural property during those years. The destruction of heritage buildings, even whole towns, and the artworks, manuscripts, books, and scientific collections contained within, was devastating. Whole museums, libraries, and galleries disappeared and with them the works that were inside. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was signed in 1954 because the high contracting parties believed that peace time was an opportunity to develop a future safeguard for cultural property. Interestingly, this was not the first attempt at the convention. There had already been conventions signed at The Hague—one in 1899, which detailed the laws and customs of war on land and naval bombardment in time of war, and another in 1907. These were followed by the Washington Pact, signed in 1935, which particularly mentioned the protection of artistic and scientific institutions of historic monuments. But obviously none of these had worked. The 1954 convention focused on the protection and safeguarding of cultural property, ensuring respect for cultural property, particularly by any occupying forces, and the protection and transportation of movable cultural property and the personnel who looked after it. The convention also details the use of a distinctive emblem to identify cultural property, to be attached in time of peace.

The first protocol was designed to prevent the exploitation of cultural property from occupied territories. It also requires each high contracting party to take into custody any property that is imported into its territory. The country is then responsible for returning that cultural property to the competent authorities in the territory previously occupied.

The second protocol concerns measures to take in time of peace for safeguarding cultural property against the foreseeable effects of an armed conflict. It includes the requirement to prepare inventories, to have emergency plans to protect structures, and to remove movable cultural property. It also requires the designation of competent authorities to look after all of these measures. It also allows for a waiver in case there is an imperative military necessity. The waiver allows, on the basis of imperative military necessity, the ability to direct an act of hostility against cultural property if the cultural property has by its function been made into a military objective—for example, a group of armed soldiers hiding out in a church and shooting their attackers—and there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective.

The rest of the bill details offences and penalties, and detailed regulations about search, seizure, and forfeiture. It also outlines measures of compensation and the return of cultural property. I am pleased that National is supporting this bill. I hope that the use of its provisions will not be necessary in New Zealand or need to be used in reference to New Zealanders in other, war-torn countries.

Bill read a first time.

Bill referred to the Government Administration Committee.