New Zealand currently has no legislation protecting cultural objects on loan from overseas against legal claims. Immunity-from-seizure (IFS) legislation provides lenders with an assurance that objects will be returned to them at the end of the loan period.
Kazimir Malevich's 1913 Bureau and Room artwork which is discussed in the appendix of the discussion paper. Image sourced from Wikipedia.
There have been high-profile cases overseas of legal claims being made on objects on loan. These claims may be based on disputed ownership of objects, or on other grounds. As a result, lenders are increasingly asking for legal protection against such claims. A growing number of jurisdictions have enacted IFS legislation, and such legislation is under consideration in several more countries.
The discussion paper seeks feedback on whether New Zealand should enact IFS legislation and, if so, what form it should take. It covers arguments for IFS legislation, potential risks, and policy issues that would need to be worked through before IFS legislation could be drafted.
Submissions on the discussion paper closed on Monday 24 September 2012.
Immunity from Seizure for Cultural Objects on Loan is available here as a PDF.
Read a related Ministry press release about the discussion paper.
Frequently Asked Questions
What is the Government doing?
The Ministry for Culture and Heritage has released a discussion paper seeking views on whether immunity-from-seizure legislation should be introduced. Once consultation is completed, the Government will decide whether or not to introduce legislation.
What is immunity-from-seizure (IFS) legislation?
IFS legislation would provide protection against legal claims for cultural objects (such as artworks or artefacts) on loan from overseas. New Zealand does not currently have IFS legislation.
What is the discussion paper asking about?
The discussion paper asks whether New Zealand should enact IFS legislation and, if so, what form such legislation should take. It asks a series of questions about issues that would need to be resolved before IFS legislation could be drafted.
Why is immunity from seizure being considered now?
The Ministry for Culture and Heritage is consulting on the possible introduction of IFS legislation now because of:
- growing concern within the museum sector that the absence of such legislation is an obstacle to borrowing objects or exhibitions from overseas
- the enactment of IFS legislation in an increasing number of comparable countries, and its potential enactment in Australia.
Do other countries have IFS legislation?
Countries that already have IFS legislation include the United States (federally and in several states), Canada (at provincial level only), the United Kingdom, France, Switzerland, Belgium, Austria, Germany, Israel and Japan. The Australian Government recently announced that it intends to introduce IFS legislation.
What types of claims are we talking about?
A person could claim to be the rightful owner of an object, and that the lending institution’s claim to ownership is based on an earlier illegal acquisition. A claimant might also seek to have an object seized in order to enforce payment of a debt owed by the lender to the claimant. An object could even be seized as part of a criminal investigation.
Generally, IFS legislation prevents claims that would result in the object being seized and prevented from being returned to the lender. However, it could also cover claims that do not involve the possession or custody of the object, such as claims for damages.
Have there been claims like this in other countries, or in New Zealand?
There have been a number of high-profile cases overseas in which objects on loan have been the subject of legal claims, preventing them from being returned on time, or at all, to lenders. As a result of these high-profile claims, international lenders are increasingly asking for legal protection against claims as a precondition for lending objects.
The Ministry for Culture and Heritage is not aware of any cases in which objects on loan to New Zealand have been claimed, but there is nothing to stop such claims from occurring in future.
Why would someone claim an object while it is on loan to New Zealand, rather than in the country where it is usually held?
A person might claim while the object is in New Zealand because he or she lives here and finds it easier to use the New Zealand legal system. New Zealand law might also be more advantageous to the claimant than the applicable law in the country where the object is usually held.
What types of institutions would be eligible to benefit from immunity from seizure?
Museums and art galleries would certainly be eligible. Depending on the scope of the legislation, it could also apply to other institutions, including libraries and universities.
Under IFS legislation, would there be an opportunity for people to object to the granting of immunity?
There could be a period during which potential claimants could object to the granting of immunity – this is one of the options put forward in the discussion paper.
Would immunity from seizure prevent Māori from repatriating taonga held overseas?
IFS legislation would only prevent claims while an object is in New Zealand on loan. Once the object returns to the lender, claimants are free to lodge claims in the country where the object is normally held.
The discussion paper also asks whether IFS legislation should make special provision for taonga Māori.
What would IFS legislation mean for loans from New Zealand to other countries?
If New Zealand introduces IFS legislation, this will have no effect on loans from New Zealand. The country to which New Zealand is lending may itself have IFS legislation.
What would IFS legislation mean for objects held by New Zealand museums in their own collections?
IFS legislation would have no effect on objects in the collections of New Zealand museums and galleries. IFS legislation would not affect the ability of people to bring claims about objects held by New Zealand institutions.
How can people comment on the discussion paper?
The discussion paper is available on the Ministry for Culture and Heritage website at www.mch.govt.nz/immunity-seizure. Submissions closed on Monday 24 September 2012.
The Ministry for Culture and Heritage will consider responses to the discussion paper before making recommendations about whether or not to proceed with IFS legislation.