INTRODUCTION
Lenders of cultural objects have increasingly become reluctant to loan cultural objects to institutions in other states, fearing their seizure by third-party claimants taking advantage of the change in jurisdiction brought about by the movement of the objects. Claims by third parties may arise primarily in one of three ways. First, and perhaps most commonly, a claimant (whether a government, company, or individual) may claim to be the owner of an object, bring legal proceedings to have that ownership recognized, and seek to take possession of the object.Footnote 1 Second, a claimant may seek to have the object seized to enforce a judgment made against the owner. Often the claim will not be related to the object in question, and it is treated merely as an asset for the purposes of enforcing some other claim, usually a debt.Footnote 2 Third, and importantly, the object may be seized as part of a criminal investigation,Footnote 3 including in relation to proceeds of crime legislation.
Immunity from seizure or suit statute essentially seeks to immunize a borrowed cultural object from seizure, by court order or from some other legally imposed restraint on its physical movement or suit in any one or more of the above scenarios. These concerns first arose in the early 1960s when U.S. institutions wished to borrow artworks from the Soviet Union. Fearing that claims might be made against those artworks that had been nationalized after the 1917 revolution, the Soviet Union insisted on some guarantee that the artworks would return to Russia.Footnote 4 In 1965, the Immunity from Seizure Act Footnote 5 was adopted, followed shortly by legislation in New York State.Footnote 6 Canada followed in the 1970s and 1980s,Footnote 7 France in 1994,Footnote 8 and Germany in 1998.Footnote 9 In the last decade, the rate of adoption has increased significantly, with immunity statutes adopted in Belgium in 2002;Footnote 10 Austria in 2003;Footnote 11 SwitzerlandFootnote 12 and LichtensteinFootnote 13 in 2005; IsraelFootnote 14 and United KingdomFootnote 15 in 2007; Finland,Footnote 16 Czech Republic,Footnote 17 and JapanFootnote 18 in 2011; and HungaryFootnote 19 in 2012. Australia has followed suit and adopted the Protection of Cultural Objects on Loan Act in 2013.
THE AUSTRALIAN CONTEXT
With Australia being a geographically isolated yet cosmopolitan and multicultural state, access to art and cultural objects from other states that would otherwise be inaccessible reinforces cultural identity; promotes awareness, sympathy, and understanding of other cultures; and inspires cultural and artistic advancement. And the loan of cultural heritage for public exhibition has, by attracting significant public attendance, generated important economic benefits. The Masterpieces from Paris, an exhibition at the National Gallery of Australia between 2009 and 2010, broke all previous attendance records and boosted the Australian Capital Territory’s economy by more than $90 million. The Winter Masterpieces program resulted in a boost to the Victorian economy of about $130 million,Footnote 20 and the Renaissance exhibition, held at the National Gallery of Australia in 2011, brought an estimated $75 million to the local economy.Footnote 21 In 2012 alone, there were a number of world-class exhibitions of loaned works and cultural objects in Australian, including works of old Spanish masters at the Queensland Art Gallery, works of Picasso at the Art Gallery of New South Wales, works of Toulouse-Lautrec at the National Gallery of Australia, ancient treasures from Afghanistan at Museum Victoria and the Queensland Museum, and 10 centuries of manuscripts at the National Library of Australia.
Surprisingly, with such a demand for loaned cultural objects, there has not been any seizure of foreign cultural objects loaned from abroad. And until recently, there were few occasions where loans had been refused specifically because an immunity statute did not exist.Footnote 22 Australia, therefore, has been quite different from jurisdictions such as the United States, where a great many seizures have occurred,Footnote 23 and rather more similar to the United Kingdom, which needed to adopt legislation to facilitate loans.Footnote 24 As more and more states have adopted immunity legislation, Australia’s role in loan arrangements has come to the fore, and Australian institutions have begun to find it more and more difficult to procure loans without an immunity statute. The Powerhouse Museum, for example, had significant difficulty in borrowing objects from Greece for a major exhibition to coincide with the 2000 Olympic Games in Sydney, having been specifically asked for an immunity guarantee by the Hellenic Ministry of Culture.Footnote 25 Similarly, the Art Gallery of New South Wales, when staging The Mad Square: Modernity in German Art 1910–1937, was unable to borrow two important pieces because Australia lacked an immunity statute.Footnote 26 Anecdotally, other major exhibiting institutions in Australia reported similar difficulties. The impetus for the immunity legislation does not, therefore, appear to coincide with specific actions having been raised in Australia, but rather from the difficulty Australian institutions are beginning to encounter in competing for the right to host significant international exhibitions.Footnote 27 The Protection of Cultural Objects on Loan Act 2013 is therefore a mechanism to limit perceived obstacles to such loans rather than necessarily addressing an emerging threat. The underlying rational for the introduction of an immunity statute in Australia is that the “ability to borrow these [cultural] objects enriches the cultural experience for Australian audiences, draws visitors from far and wide, and delivers significant economic benefits.”Footnote 28
That said, while loans of foreign objects from abroad have not been particularly problematic, the loan of Australian objects from abroad has begun to emerge as a potential problem. A significant number of Australian objects, particularly those of Aboriginal and Torres Strait Islander communities, left Australian shores and can be found in museums around the world, but particularly in the United Kingdom. The communities that lost their cultural objects have increasingly been seeking their return. Given their historical and cultural importance, many of these Australian objects have been loaned to Australian institutions. However, in 2004, the loan of such objects and the communities’ desire to be reunited with their heritage led to the retention of Australian cultural objects on loan. This case, which concerned two bark etchings, dating from 1854, loaned to Museum Victoria by the British Museum and the Royal Botanic Gardens, highlighted the shortcomings of the existing Australian regime, which provided only a narrow and limited immunity, which in turn influenced the impetus to adopt an immunity statute.
AUSTRALIA’S EXISTING IMMUNITY REGIME
The need for an immunity statute in Australia has arisen in part because the existing legislation, in the form of the Protection of Movable Cultural Heritage Act 1986 (Cth)Footnote 29 and the Foreign States Immunities Act 1985 (Cth), offers very limited immunity to cultural objects on loan to Australian institutions.
The Protection of Movable Cultural Heritage Act 1986 was adopted primarily to give effect to the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.Footnote 30 While it addresses, in the main, the export of Australian protected objects,Footnote 31 it is also concerned with the import into Australia of cultural objects illicitly exported from a foreign state. It provides that where a protected object of a foreign country has been exported from that country contrary to the law of that country and imported into Australia, it is liable for forfeiture.Footnote 32 Moreover, the person importing that cultural object knowing this to be the case is guilty of an offence.Footnote 33 However, this does not apply in relation to the importation of an object if the importation takes place under an agreement between the commonwealth, a state, a territory, a principal collecting institution, or an exhibition coordinator and any other person or body (including a government); and the agreement provides for the object to be loaned, for a period not exceeding two years, for the purpose of its public exhibition within Australia.Footnote 34 This “immunity” is limited in that it only applies in cases of illicit export of cultural objects, and not, for example, to those that, while stolen, were legally exported. Moreover, this “immunity” is only applicable to the provision of this act, and not from any other law.
The act also provides that where a person intends to import an Australian protected object for temporary purposes (exhibition) or in circumstances in which the person may wish subsequently to export the object (e.g., where the object is to be put on sale), the person may apply to the minister for a certificate of exemption authorizing the exportation of the object.Footnote 35 Such certification does not, however, protect objects from all judicial seizure and applies only to Australian protected objects as defined by the act. While the act does provide in some cases some immunity from the scope of its application, it does not offer immunity from any other commonwealth, state or territory law. As the Office of the ArtsFootnote 36 discussion paper makes clear, despite the act’s provisions, “[a]ny Australian law that might affect property such as ownership laws, customs law and the like, may allow the seizure of objects in certain circumstances, for example as evidence in a criminal or customs matter.”Footnote 37
The Foreign States Immunities Act 1985 (Cth) also provides rather limited immunity to cultural objects owned by a foreign state and brought into Australia for public, noncommercial reasons. It is not clear, however, whether a loan of cultural objects is a commercial transaction or not. As such, if a third party claiming ownership or interest in cultural property that was temporarily in Australia brought legal proceedings against the owning foreign state, and the loan was found to be of a commercial nature, the property would not be protected under this act.Footnote 38
The Bark Etchings Case
The case itself concerned two bark etchings, dating from 1854, loaned to Museum Victoria by the British Museum and the Royal Botanic Gardens.Footnote 39 A certificate of exemption had been granted pursuant to section 12 of the Protection of Movable Cultural Heritage Act 1986 (Cth), which was supposed to have allowed the etchings to leave Australia at the end of the exhibition, notwithstanding the fact that they were Australian protected objects. However, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) allowed the Victorian minister of Aboriginal Affairs to issue an emergency declaration, valid for 30 days, if an aboriginal object or place was under threat of desecration. Eight successive declarations were made in relation to these etchings, which restrained the museum from returning them to the United Kingdom, as required in the loan agreement and apparently guaranteed by the certificate of exemption issued under the Protection of Movable Cultural Heritage Act 1986 (Cth). The emergency declarations were successfully challenged.Footnote 40 However, the act also empowered the minister to compulsorily acquire the object if satisfied that this was necessary to maintain the relationship between Aboriginal people and that object.Footnote 41 The Dja Dja Wurrung people applied unsuccessfully for a permanent declaration and for compulsory acquisition and, subsequently, unsuccessfully challenged that decision.Footnote 42 While this then allowed the injunction to be lifted, and the etchings returned to the United Kingdom, it focused attention not only on the unintended consequences of the relevant provisions of the two statues in question when acting together,Footnote 43 but clearly illustrated the very limits of the Protection of Movable Cultural Heritage Act 1986 (Cth). This case raised for some in the museum and gallery community the need for a statute of immunity from seizure.
AUSTRALIAN PROTECTED OBJECTS
The importance of Aboriginal and Torres Strait Islander cultural objects, many of which left Australia over the past 300 years, has required attention in structuring such an immunity regime. It was decided to provide immunity for this heritage in order to encourage foreign lenders who hold such objects in their collections to consider lending those objects to Australian institutions for temporary public exhibition. Such loans will “increase awareness of those objects in foreign collections and provide an opportunity for members of Aboriginal and Torres Strait Islander communities to see and connect with objects from their cultural heritage that may not otherwise be loaned to Australian institutions.”Footnote 44 However, certain Aboriginal and Torres Strait Islander heritage objects are considered so significant that no immunity should apply and measures should be taken to return this heritage to Australian permanently. This includes human remains, bark and log coffins, secret sacred ritual material, rock art and dendroglyphs, and those classed as Class A objects in the Protection of Movable Cultural Heritage Act 1986 (Cth). By excluding Class A objects, not only important Aboriginal and Torres Stair Islander heritage objects, but also other iconic heritage such as Ned Kelly’s armor and specified Victoria Cross medals, are not subject to immunity.Footnote 45
The delicacy in providing immunity to Australian cultural objects brought into Australia (other than Class A objects) is addressed through three mechanisms. First, the immunity regime requires that institutes that wish to loan such heritage from abroad have their curatorial and collection management policies and procedures scrutinized and approved prior to the loan. This will include due diligence procedures in relation to ownership and provenance of the loaned cultural objects. Second, the borrowing institution will be required to consult with persons or groups who may have an interest in the proposed loan.Footnote 46 “Requiring consultation prior to importation provides a mechanism for the identification of any issues in relation to a proposed loan as well as opportunities for members of communities to raise any concerns about the proposed loan.”Footnote 47 Third, it is likely that the guidelines that will support the implementation of the act will recommend that borrowing institutions publish information on proposed loans prior to their importation into Australia, enabling any person to raise questions about the object’s history and ownership. “This is an important transparency mechanism and provides information to assist persons who may be victims of human rights violations to locate objects they believe were stolen, looted or otherwise unlawfully taken.”Footnote 48
PROTECTION OF CULTURAL OBJECTS ON LOAN ACT 2013
Objective of the Act
The main object of this act is “to encourage lenders to lend objects for temporary public exhibition in Australia under arrangements involving certain institutions.”Footnote 49 This is more fully explained in the Explanatory Memorandum as follows:
Providing protection to objects that are normally in foreign countries responds to the obstacle that Australia’s major collecting institutions have faced in securing loans of foreign objects. Loans of those objects for temporary public exhibition are essential to the ability of Australia’s major institutions to provide access to a broad range of cultural objects and to deliver their exhibition programs. This impact is most significant on the ability of Australia’s institutions to deliver major international exhibitions, which in turn deliver significant social, economic and cultural benefits to the local economies and communities where the institutions are located.Footnote 50
In this, it is no different to those introduced in a number of jurisdictions.Footnote 51 This act seeks to achieve that object by limiting the circumstances in which ownership or physical possession, custody or control of the objects in Australia can be affected by legal proceedings; the enforcement of a judgment or order of a court; an action taken under a law of the commonwealth, a state or a territory; or the operation of such a law.Footnote 52 It thus has considerable scope. Importantly, the object must be imported under arrangements made only by an institution that has been pre-approved by the minister.
Cultural Objects
With this objective in mind, the short title of the act—Protection of Cultural Objects on Loan Act—is something of a misnomer. It is not really an act that “protects cultural objects”; rather it protects the parties with an interest in a cultural objects from suits or actions that might deprive them of ownership, possession, or control. Nor does the act specify which cultural objects are to be “protected.” Examples of such objects are hinted at in the act’s definition of a borrowing institution, being an organization that “collects and publicly exhibits in Australia objects that are of interest for archaeological, artistic, ethnological, historical, literary, scientific or technological reasons.” These categories go to defining this institution’s purpose, and it is the institution and not the object, that lies at the heart of the immunity statute.
THE IMMUNITY MECHANISM
Institutional Immunity
Immunity arises only when cultural objects are imported under arrangements made between a lender and a borrowing institution that has been approved by the minister. The main impetus for this immunity regime came from Australian lending institutions, and not surprisingly, the resulting regime has these institutions at the center. The idea of institutional immunity was borrowed from that used in the United Kingdom’s Tribunals, Courts and Enforcement Act 2007, Part 6.Footnote 53 In many other jurisdictions, including Canada,Footnote 54 France,Footnote 55 Germany,Footnote 56 and Israel,Footnote 57 immunity is granted following a specific request in relation to specific objects.
Loans of cultural objects are not necessarily a straightforward arrangement between two parties—a lender and a borrower—and the act contains a significant definition section specifying the key players in the legislative scheme.Footnote 58 These key players are identified in the act when setting out the preconditions for immunity. It provides that cultural objects on loan in Australia will only be protected when they are imported under a temporary loan arrangement between a lender of the object and either an exhibiting institution for the object or the parent of such an institution or an exhibition facilitator for the object who has an arrangement with either an exhibiting institution for the object or the parent of such an institution, or both; and the relevant institution is an approved borrowing institution.Footnote 59
Arguably, the most important key player is the borrowing institution, since it is this institution that is approved by the minister for the purposes of immunity.Footnote 60 The act defines a borrowing institution as an organization that collects and publicly exhibits in Australia objects that are of interest for archaeological, artistic, ethnological, historical, literary, scientific, or technological reasons; and is either established by a law of the commonwealth, a state or a territory; or prescribed by regulation as a borrowing institution.Footnote 61 A borrowing institution may, for example, be a commonwealth, state, or territory art gallery, museum, library, or archive.Footnote 62 Institutions that exist for profit are not precluded from the act’s reach. That said, the preconditions for obtaining approval from the minister are likely to be such that it is unlikely that these smaller institutions will actually seek immunity.
The term borrowing institution is therefore used to describe the types of institutions that may apply to the minister for the granting of “immunity.” The application to the minister for such immunity is expected to take place before that institution has actually entered into any loan arrangements. Once the borrowing institution has such approval, it is then capable of entering into a loan agreement to which immunity will apply. At that point, the borrowing institution is referred to in the act as an exhibiting institution, defined as “the borrowing institution that has made arrangements for the temporary public exhibition of the object in Australia.”Footnote 63 The term exhibiting institution is therefore used to explain a borrowing institution’s relationship with an object,Footnote 64 rather than with the lender.
The other party to a loan agreement is the lender. Three criteria underscore the act’s definition of a lender. First, a lender must be a natural person not ordinarily residing in Australia, a foreign corporation, or a body politic of a foreign country. Second, a lender would reasonably be expected to have physical possession, custody, or control of the object outside Australia but for the loan.Footnote 65 Third, the lender must be party to a temporary loan arrangement for the object with one of three possible parties: a borrowing institution, the parent of a borrowing institution, or an exhibition facilitator.Footnote 66
The provision of the exhibition facilitator is a rather unique addition to the scheme, not found in any other state’s immunity legislation. It is defined as “a person who has a temporary loan arrangement for the object with a lender of the object and has a temporary loan arrangement for the object with an exhibiting institution for the object (or the parent of such an institution)” and “carries on a business (whether or not for profit) of making arrangements for temporary public exhibitions in Australia of objects from collections outside Australia”Footnote 67 This inclusion of exhibition facilitators in this immunity scheme is in recognition of the fact that institutions do not necessarily organize all of the exhibitions that they host directly with a lender. An exhibition facilitator may enter into a loan agreement with a lender, and then enter a number of agreements with different exhibiting institutions. Alternatively, there may be a loan agreement involving all three parties to the loan; the lender, the exhibition facilitator and the exhibiting institution.Footnote 68 This is particularly important in Australia because the federal government established, in 1980, Art Exhibitions Australia as a nonprofit organization responsible for developing and coordinating large international exhibitions in Australia.Footnote 69
The final key player, in recognition of the complexity of institutional arrangements, is the parent of a borrowing institution. If the borrowing institution is a Department of State (or part of such a department), then the parent is the relevant commonwealth, state, or territory. Similarly, if the operations of the borrowing institution are a distinct part of the operations of a body corporate, then the parent is the body corporate.Footnote 70 This party had been included to ensure that immunity will apply where the loan arrangement for certain museums and galleries are made by the parent of the borrowing institution rather than that institution itself.
Approval of Institutions
The Australian immunity scheme has taken much from the United Kingdom scheme in that immunity is achieved first by approving the institution that borrows the object, and second by reference to certain preconditions that apply to the loan, rather than considering immunity for the cultural objects themselves.Footnote 71 As such, immunity will only arise in relation to loans entered into by an approved borrowing institution. That is, an organization, whether a person or not, that collects and publicly exhibit cultural objects,Footnote 72 and is either established by the commonwealth, a state, or territory government or is prescribed by regulation as a borrowing institution, which might include nongovernmental private institutions.Footnote 73 This is expansive in comparison to some states, such as France,Footnote 74 Israel,Footnote 75 Belgium,Footnote 76 and Austria,Footnote 77 that limit the application of immunity to state institutions.
To be an approved borrowing institution, the institution has to apply to the minister for approval. As objects brought into Australia under arrangements by an approved institution are automatically immune from seizure and suit in accordance with the act, the integrity of the immunity regime is contingent on the practices and expertise of the approved institutions in curatorial and collection management. Institutions seeking approval must be able to demonstrate the necessary expertise, rigor, capacity, and resources to meet the demands of the act. Essentially, then, approval is dependent on the institution’s due diligence processes that will minimize the risk of exposure to seizure or suit for which immunity is granted. Particularly, in deciding whether to approve a borrowing institution, the minister must consider the institution’s curatorial expertise and expertise in management of collections; the procedures used to identify the provenance of objects collected or exhibited; the procedures used to identify objects in a foreign country that could be the subject of temporary loan arrangements; the procedures used for negotiating temporary loan arrangements for objects that are normally in a foreign country; and whether the institution often publicly exhibits in Australia objects that are normally in a foreign country.Footnote 78
These institutional policies and practices may be supplemented by requirements set out in guidelines, which are likely to require the approved borrowing institution (or its parent) to undertake consultation with “members of communities, or organisations representing them, about proposed loans of objects relating to those communities to the institutions or parents by lenders or exhibition facilitators” and with “persons or bodies responsible for archives of States or Territories about proposed loans of objects relevant to those archives to the institutions or parents by lenders or exhibition facilitators.”Footnote 79 To facilitate such consultation and draw attention to objects that might be brought into Australia, the guidelines may also require that the borrowing institution publish information about objects proposed to be lent to them by lenders or exhibition facilitators.Footnote 80 These requirements are particularly important in the context of Australian objects being loaned from abroad, and seek to avoid the kind of problems that arose in the Bark Etchings case.
While further considerations may be prescribed by regulation or through guidelines, neither these nor those set out in the act limit the matters the minister may consider, which gives the minister relatively wide discretion in approving borrowing institutions. Moreover, the minister may impose, vary, and revoke conditions on the approval of a borrowing institutionFootnote 81 and approval itself.Footnote 82 Approval, revocation, and other decisions by the minister must be communicated to the relevant institution and published on the department’s website.Footnote 83 These decisions are subject to review by the Administrative Appeals Tribunal.Footnote 84
The approval must be for a specified period not more than 60 months. This time limitation was thought necessary to ensure that borrowing institutions’ procedures relevant to loans of cultural objects were reviewable, ensuring each institution’s capacity to satisfy the requirements of the legislation.Footnote 85
Preconditions for Immunity
While the act focuses on the borrowing institution for the purpose of granting immunity, it is also based on a set of preconditions relating to the loan arrangements.Footnote 86 In the first place, it applies to cultural objects that are importedFootnote 87 into Australia on loan under a temporary loan arrangement between a lender of the object and either an approved exhibiting institution for the object or the parent of such an institution or an approved exhibition facilitator for the object who has an arrangement with either an exhibiting institution for the object or the parent of such an institution, or both.Footnote 88 Provided this is the case, it will not matter whether the object is imported into Australia for temporary public exhibition involving a single exhibiting institution or multiple exhibiting institutions. Objects may therefore be moved between exhibiting institutions, whether under the one loan arrangement or consecutive loan arrangements.Footnote 89 Essentially, the objects are free to move around Australia once the borrowing institution that loans that object has satisfied the conditions for immunity.
Immunity only applies to objects on loan. A somewhat unsatisfactory attempt is made in the act to give a more precise meaning to this term. While there is no actual definition for loan, the definition section provides that a loan includes an arrangement for the temporary transfer of the physical possession, custody or control of the object directly or indirectly from one person to another person, whether or not any consideration is provided for the transfer; and the transfer of the physical possession, custody, or control of the object directly or indirectly from the other person back to the first person.Footnote 90 For the most part, this sets out a common understanding of what it means to loan something, and since it is not a definition for loan but merely one exemplar, it is rather unnecessary. Its value, however, lies in reference to consideration, which here refers essentially to the payment of monies by the borrowing institution to the lender in exchange for the loan. By clarifying that consideration is of no import to the nature of a loan for the purpose of the immunity scheme, it ensures that commercial loan arrangements are included within this immunity scheme.Footnote 91
Immunity also only applies to objects loaned by way of a temporary loan arrangement. The act defines this as “an arrangement for the loan of the object for temporary public exhibition of the object in Australia under arrangements made by a borrowing institution.”Footnote 92 This rather circular definition does little to define the term, merely giving effect to the ordinary meaning of the words, and adding that it is an arrangement made with a borrowing institution, and that it is for public exhibition. The latter requirement is qualified in the act itself, imposing as a condition for immunity that the object is imported only or mainly for the purpose of temporary public exhibition.Footnote 93 This qualification allows for cultural objects to remain in Australia for conservation, study, or storage rather than exhibition, for part of the loan period, which cannot, in total, exceed 24 months.Footnote 94 This allows some flexibility for institutions in organizing the actual exhibition and takes into account circumstances, for example, where the cultural objects may arrive in Australia following the end of an exhibition in another country but where the Australian institution is not ready for the immediate exhibition of the object.Footnote 95
As a federation, the Commonwealth of Australia only has certain legislative powers, and property legislation is in the constitutional domain of the individual states of the commonwealth.Footnote 96 To invoke the commonwealth’s jurisdiction, the second precondition requires that the loan of the object arise in one or more of a limited set of circumstances that are within the constitutional power of the Commonwealth Parliament.Footnote 97 That said, these circumstances are such that all international loans will be covered by this regime.
The third precondition is that the import of the loaned object does not contravene a law of the commonwealth prescribed by regulation that gives effect to an international agreement.Footnote 98 This precondition addresses the important interaction between Australia’s existing obligations as a party to the 1970 UNESCO Convention, and those that Australia may become a party to, such as the UNIDROITFootnote 99 Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT Convention)Footnote 100and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage. The interaction between immunity statutes and these obligations have caused concern for a number of states, and are addressed in detail below.
Finally, as preconditions, two exceptions are provided for. The first it that the objects on loan must not be a Class A object as defined in the Protection of Movable Cultural Heritage Act 1986 when the object is imported.Footnote 101 Class A objects are those Australian protected objects whose export are prohibited, and include important Aboriginal and Torres Strait Islander heritage, as well as iconic objects such as Ned Kelly’s armor and specific Victoria Crosses.
The second exception allows for the nonapplication of immunity to cultural objects on loan in circumstances where the institution does not think that immunity is necessary and therefore seeks to opt out of the administrative requirements of the act, such as the publication or consultation requirements that will be specified in the guidelines.Footnote 102 In order to opt out of the immunity scheme, the institution must specify those objects that will be exempt in a written notice given to the minister (in the form approved by the minister). That notice must not have been withdrawn before the object is imported.Footnote 103 In a scheme that provides blanket immunity to approved institutions, this does enable these institutions to more actively arrange immunity depending on the circumstances surrounding that particular object. In the case of those cultural objects whose import might require extensive consultation and due diligence processes but where risk of seizure or suit is very low, opting out of the immunity scheme may be appropriate.
Immunity ceases either at the end of 24 months starting on the day the object is imported into Australia, or upon the export of the object from Australia, whichever comes first.Footnote 104 Immunity will no longer apply if the object is still in Australia after the expiry of 24 months, unless arrangements have been made to extend such immunity beyond the 24-month period. The act allows for such an extension, but only by application by the exhibiting institution and only if the minister is satisfied that exceptional circumstances justify making the declaration.Footnote 105 An extension notice by the minister must be published on the department’s website, and must specify when immunity will cease to apply after the 24-month period. Such a declaration must be made before the end of 24 months, starting on the day the object is imported into Australia.Footnote 106 The Explanatory Memorandum offers two examples of when such an extension might arise:
An example of where the Minister might make such a declaration would be if the exhibiting institution made an application to the Minister that there was a requirement for conservation work to be undertaken to repair damage that had occurred to an object during the loan period, where the time required for that work to be undertaken would result in the object being in Australia for more than 24 months and the Minister was satisfied that the conservation work was an exceptional circumstance that justified making the declaration. Another example may be if the object(s) were part of an exhibition that was touring to multiple venues in Australia and the cumulative period of time the object(s) would be in Australia was to exceed 24 months.Footnote 107
SCOPE OF IMMUNITY
Immunity from Seizure and Suit
The act provides for a very broad immunity. Subject to the prescribed preconditions being met, proceedings for an action in rem relating to the cultural object cannot be started,Footnote 108 nor can proceedings for an action in personam against a protected person relating to the cultural object.Footnote 109 Moreover, cultural objects cannot be seizedFootnote 110 or forfeitedFootnote 111 under a law of the commonwealth, a state, or a territory. These simply stated prohibitions cover a wide immunity from seizure and suit.Footnote 112 This expansive immunity is shared with the immunity regimes of Switzerland,Footnote 113 Germany,Footnote 114 and Israel,Footnote 115 but contrasts with the limited scope of those of United States,Footnote 116 France,Footnote 117 Belgium,Footnote 118 and United Kingdom.Footnote 119
An important part of this immunity is a clarification of the beneficiaries of immunity, which is set out in some detail. Protected person includes a lender; an exhibition facilitator; an exhibiting institution or a parent of such institutions; and their officers, employees, or agents in certain circumstances. It includes, for example, an officer, employee, or agent of a lender of the object who accompanies the object for some or all of the time it is on loan.Footnote 120 It also includes a person (including an officer, employee, agent, or delegate) engaged by a lender, an exhibition facilitator, or an exhibiting institution or parent, to do any of the following: transport the object from one place in Australia to another or between Australia and a foreign country; carry out conservation work on the object in Australia; store the object in Australia; provide security for the object while it is being transported between Australia and a foreign country or while it is in Australia; or provide a service that relates to the object and is prescribed by regulation.Footnote 121 The scope of this immunity is to protect these “protected persons for the object” from suit by a third party. It is not, of course, meant to restrict the ability of one protected person from suing another in certain circumstances, such as a contractual dispute arising out of the transportation or storage of the cultural object. The act ensures that such an interpretation does not arise in a rather complex way.Footnote 122 It provides that a person who is a protected person for the object, because of a particular paragraph of the definition of protected person, can start proceedings against another person who is also a protected person for the object because of that paragraph or a later paragraph. It therefore creates a hierarchy of protected persons such that some protected persons have a higher claim than others to start proceedings, the most important of which is the lender of the cultural object. The lender, for example, may therefore initiate an action to reclaim cultural objects in the physical possession of another protected person lower down the hierarchy, such as a storage provider.Footnote 123 The Explanatory Memorandum provides the following by way of explanation: “[a]t times, people lower in the hierarchy will have physical possession of the object and could elect to retain custody of the object. Without this exception the lender (or a person higher in the hierarchy) would be unable to start an action to reclaim the object.”
Since the lender stands at the apex of the list of protected persons, it gains the widest possible immunity not only from third parties but also from others it engages in relation to the loaned cultural objects. The intention, however, is to address the issue where those lower down in the hierarchy have possession of the object and what is sought is to reclaim it, most obviously by the lender. As such, it is restricted to actions in personam “relating to the object” and not necessarily all claims by the one party against the other. This ought to be narrowly defined so as not, for example, to prevent an action for a breach of contract for nonpayment by the lender for services rendered by a storage provider or security contractor. In this, something of a problem appears to arise in the section as it provides not only that the proceedings for an action in personam “relating to the object” cannot be started against a protected person, but concludes with the phrase “for the object.” At first sight, this might suggest that the action in personam must not only relate to the object but must also be “for the object.” The latter phrase, however, does not relate to the action, but to the protected person, described in the definition as “protected person for the object.” As such, it ought not to limit the scope of the immunity.
There are two exceptions to the wide immunity from seizure and suit. The first is in relation to proceedings under the Proceeds of Crime Act 2002 (Cth). Proceedings under this legislation have been exempted from the act in recognition of Australia’s international obligations in relation to proceeds of crime, specifically the United Nations Convention Against Illicit Traffic in Narcotics Drugs and Psychotropic Substances, the United Nations Convention Against Transnational Organised Crime and Its Protocol, and the United Nations Convention Against Corruption.
The second exception to the broad immunity from seizure and suit merely provides that such immunity will not apply to proceedings prescribed by regulation for the purposes of this subsection.Footnote 124 This open-ended exception will allow for further exceptions that address criminal issues or give effect to Australia’s international obligations.
Enforcement of Judgments
The act provides protection from enforcement of judgments and orders.Footnote 125 Broadly, it provides that nothing can be done to enforce an in personam order or judgment against a protected person or an in rem judgment or order relating to the object, of a federal court or a court of a state, territory, or foreign country.Footnote 126
Immunity from enforcement is not, however, absolute. Australia has engaged in a number of international cooperative measures designed to facilitate the enforcement of judgments and orders. While the very nature of cultural objects has resulted in a scheme that provides immunity when it would ordinarily not apply, the Australian scheme will only provide immunity in circumstances that do not touch upon its existing international obligations. Specifically, it does not prevent an act from being done in accordance with certain parts of the Foreign Judgments Act 1991 (Cth), the Trans-Tasman Proceedings Act 2010 (Cth) or the International Arbitration Act 1974 (Cth) that give effect to Australia’s international obligations.
The Foreign Judgments Act 1991 (Cth) provides for the enforcement of judgments from a number of states with which Australia has reciprocal enforcement arrangements. These include a number of important states in relation to the exchange of cultural objects, including Canada, France, Germany, China, Israel, Italy, Japan, New Zealand, Poland, Switzerland, and United Kingdom. Importantly, the Foreign Judgments Act 1991 (Cth) only applies to the enforcement of money judgments rendered in the first instance by superior courts, and in more limited circumstance, inferior courts.Footnote 127 These money judgments can, however, be enforced against assets within Australia. Recognition and enforcement of judgments from states other than those covered by the Foreign Judgments Act 1991 (Cth) is possible pursuant to common law principles of reciprocity, and while this may be a difficult and onerous undertaking, may still expose cultural objects to some risk. While the latter will be covered by the immunity scheme, the act provides that it does not prevent acts pursuant to Part 2 of the Foreign Judgments Act 1991 to enforce a judgment of a superior court of a country in relation to which that part extends, or an inferior court to which that part extends.
Similarly, the Trans-Tasman Proceedings Act 2010 (Cth) gives effect to a bilateral treaty between Australia and New Zealand that provides for New Zealand judgments and orders to be registered and enforced in Australia.Footnote 128 Immunity will not extend to enforcement of judgments or orders pursuant to this legislation. Nor will immunity extend to enforcement pursuant to the International Arbitration Act 1974 (Cth) which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
A further exception arises in relation to the enforcement of judgments and orders favoring protected persons in certain circumstances.Footnote 129 This exception aligns with the exception that allows protected persons to start proceedings subject to a hierarchy of protected person, the lender being at the top of this hierarchy. The hierarchy means that a judgment or order in favor of a protected person for the object will only be enforced against a protected person in relation to the object if that protected person is in the same paragraph as them in the definition of protected person or a later paragraph. This will allow, for example, a lender to enforce a judgment made again an entity engaged to transport the cultural objects.
Finally, as was the case for immunity from suit,Footnote 130 there is no immunity from enforcement of an order made under the Proceeds of Crime Act 2002 (Cth) or from a judgment or order made in proceedings prescribed by regulation for the purposes of this subsection.Footnote 131
Criminal Seizures
The extent to which immunity from seizure should apply to seizures pursuant to a criminal investigation or breach of a criminal law requires a careful balancing of interests: the direct interest of facilitating the exchange of culture versus the need to fully investigate crimes and to give full effect to the criminal law. A number of states have struggled in setting this balance, the United States in particular.Footnote 132 Several, however, provide immunity from seizures pursuant to the criminal law, including four Canadian provinces,Footnote 133 Germany,Footnote 134 Israel,Footnote 135 Belgium,Footnote 136 Austria,Footnote 137 Switzerland,Footnote 138 and United Kingdom.Footnote 139
The role that a particular cultural object plays, though, can vary considerably. The most obvious case is where the cultural objects lie at the heart of the crime, such as cases of theft of that particular object.Footnote 140 While unlikely, the cultural object may have merely been used in the commission of a crime, perhaps used as a weapon in an assault, or may qualify as obscene.Footnote 141 Increasingly though, cultural objects, often of high value and easily transportable, may be used for money laundering and reflect the proceeds of crime. The Proceeds of Crime Act 2002 (Cth) addresses these issues by providing for a range of measures that allow for the seizure, forfeiture, or restraining of use of property that represent the proceeds of crime.Footnote 142 Its scope is considerably broad. It provides for the forfeiture of property to the commonwealth on conviction of a serious offence where that property was acquired through proceeds of crime or was an instrument of the commission of a crime.Footnote 143 It also provides for forfeiture in some circumstances without a criminal convictionFootnote 144 if the court is satisfied that the property was an instrument of a serious offence or was the proceeds of one or more indictable offences, irrespective of whether that offence is a commonwealth, state, or foreign offence.Footnote 145 That this applies to foreign offences is of some import, given the possibility that a cultural object on loan from a foreign state may be the proceeds of crime in that state.Footnote 146 The act also provides for restraining orders made against property, which provide that the property must not be disposed of or otherwise dealt with by anyone or only by specified persons.Footnote 147 Importantly, “dealt with” includes the removal of property from Australia.Footnote 148 Such a restraining order may prevent, for example, the return of artworks to lenders overseas.Footnote 149
Not surprisingly, the broad immunity granted from seizureFootnote 150 or forfeitureFootnote 151 under a law of the commonwealth, a state, or a territory is qualified in relation to a number of seizures pursuant to criminal laws, particularly the Proceeds of Crime Act 2002. There is no immunity from seizure, suit, or the enforcement of any judgment or order made under the Proceeds of Crime Act 2002Footnote 152and no immunity from seizure pursuant to Part 3-5 of the Proceeds of Crime Act 2002, which governs search and seizure powers in relation to property suspected or found to be the proceeds of criminal activity. Likewise, seizure under Part IAA of the Crimes Act 1914, which gives search, information gathering, arrest, and related powers to police, is not prevented. Moreover, any law of the commonwealth, a state, or a territory that gives a police officer (however described) a power of seizure and does not give that power to anyone other than a police officer is not covered by the immunity.Footnote 153 This section would be relevant in a situation, for example, where a police officer seizes an artwork thought to constitute child pornography. Another example of where seizure may be required would be if an object was used in a crime, or is evidence of a crime, committed during the period of the loan and subject to seizure by a police officer. As in other parts of the legislation, other laws may fall under this part if prescribed by regulation. The exceptions have been included to recognize that there may be circumstances where it is appropriate that police officers retain the ability to seize an object.
An interesting feature of the act is found in section 12, which gives the object protection from forfeiture or the compulsory transfer of title of an object to the state. The act provides for blanket immunity from forfeiture subject to specific exceptions. Part IAA of the Crimes Act 1914 is one exception. The development in this section is the exception for Parts 2-2 and 2-3 of the Proceeds of Crime Act 2002, which provide for forfeiture orders and for forfeiture orders on the conviction for a serious offence under that act.
Immunity from Heritage Laws
In providing a wide a scope of immunity, the act contains a curious provision relating to “heritage laws.” These are defined as encompassing
laws of the Commonwealth, a State or a Territory that relate to heritage, whether or not the law relates to: heritage of a particular community (such as Aboriginal or Torres Strait Islander heritage); or heritage of a particular kind (such as objects associated with historic shipwrecks, records of government or archival material).Footnote 154
It therefore covers a great range of laws that are likely to be relevant to the kinds of cultural objects imported into Australia for temporary exhibition, including, for example, the Protection of Movable Cultural Heritage Act 1986(Cth); the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Historic Shipwreck Act 1976 (Cth).Footnote 155
The act provides that nothing done under a heritage law prohibits in any way a protected person from doing anything in relation to the object for the purpose of giving effect to the loan agreement or meeting the person’s obligations to another protected person who is party to the loan agreement.Footnote 156 Moreover, nothing in, or done under, a heritage law affects ownership of the object, physical possession, custody, or control of the object by a protected person, or the right of a protected person to such physical possession, custody, or control of the object.Footnote 157 The intent is to provide immunity from the application of these heritage laws. The Explanatory Memorandum gives examples of some of the actions that exist in heritage laws and which would be limited by this provision, being “the issuing of declarations in relation to an object, the giving of directions in relation to an object or prohibitions on certain actions in relation to an object.”Footnote 158 Given the scope of the relevant heritage laws, this provision “is most likely to be of relevance to objects of an Australian origin that have entered into foreign collections and that are subsequently proposed to be imported into Australia on loan for temporary public exhibition.”Footnote 159 This directly addresses the problem that arose 2004 in relation to the Bark Etchings case, ensuring that if a similar case arose, the Protection of Movable Cultural Heritage Act 1986 (Cth) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) would not be applicable.
Default Immunity
Finally, the act provides a “catchall” provision that ought to close any gaps in the wide scope of immunity. It provides that in establishing immunity from seizure, forfeiture, suit, and from enforcement of judgments and orders, such immunity will have effect despite any other law of the commonwealth (whether made before or after the commencement of this section) and any rule of common law or equity (including, for example, a rule of private international law).Footnote 160
The act therefore provides a considerably wide scope of immunity, generally fashioned by providing blanket immunity with only specific exceptions carved out. Most of the exceptions apply to Australia’s existing international obligations—the more so when in relation to criminal seizure or forfeiture. To facilitate this, a wide exception is provided for, being anything prescribed by regulation for the purposes of the act.Footnote 161 This allows for the introduction of further exceptions as appropriate, especially in relation to any international agreements that Australia may become a party to in the future. In this context, the possibility of Australia becoming a party to the UNIDROIT Convention and the 2001 Underwater Cultural Heritage Convention becomes particularly important.
IMMUNITY AND AUSTRALIA’S INTERNATIONAL CULTURAL HERITAGE LAW OBLIGATIONS
For immunity to apply, the import of the cultural object must not contravene a law of the commonwealth, prescribed by regulations, that gives effect to an agreement between Australia and one or more foreign countries or international organizations.Footnote 162
The loan of cultural objects between nations has been fostered and encouraged through the international law and “soft law” instruments, including the Declaration of Principles of International Cooperation; the Agreement on the Importation of Educational, Scientific and Cultural Material; the Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character; and the Recommendation Concerning the International Exchange of Cultural Property.Footnote 163 Indeed, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which seeks to eradicate the illicit trade in cultural objects, recognizes that:
the interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations.Footnote 164
Nevertheless, the primary aim of this convention is to ensure that the flow of cultural objects from one state to another does not occur contrary to the laws of the state from which it is “exported.”Footnote 165 Australia is a party to the 1970 Convention and gives effect to it through the Protection of Movable Cultural Heritage Act 1986 (Cth). As such, it gives rise to international obligations that might be impacted upon by the act. For example, article 13(c) of the 1970 Convention requires Australia to undertake to admit actions for recovery of stolen cultural objects brought by or on behalf of the rightful owners. Importantly, this obligation is made subject to the “existing law of each State” Party. Some uncertainty exists as to the exact meaning of this phrase, though the United States has expressed the view that it requires each state to ensure the existence of “a judicial remedy for the vindication of a property right if one exists.”Footnote 166 Uncertainty remains whether an immunity from seizure statute of a State Party that prevents the vindication of an existing property right is in contravention of this obligation since that immunity from seizure statute does not apply to all such claims and forms part of the laws of that state. Nevertheless, immunity statutes like that of Australia that provide for immunity from suit achieve the very opposite to what the spirit of this international obligation requires. This difficulty will be compounded if Australia becomes a party to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Nevertheless, subject to the interpretation of these international obligations, it is expected that guidelines will be adopted that ensure that Australia can give effect to the convention, and that immunity will not apply in these circumstances. This will require borrowing institutions to undertake rigorous due diligence investigations into the provenance of loaned objects if they are to be subject to the immunity regime.
HUMAN RIGHTS IMPLICATIONS
The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires that proposed laws be assessed against Australia’s human rights obligations. These obligations are those that arise out of the international instruments listed in section 3 of that act; the International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; and the International Convention on the Elimination of All Forms of Racial Discrimination. Four specific rights were considered relevant: the right to an effective remedy, the right to self-determination, the right to a fair hearing, and the right to enjoy and benefit from culture. In considering the compatibility of the immunity regime with these rights, a balance is struck between these rights and the objective of the act, which is stated to be for the enhancement of cultural life in Australia and promoting the right to enjoy and benefit from culture by increasing access to objects brought into Australia under loan arrangements for temporary public exhibition.Footnote 167
Specifically, the act engages the right to an effective legal remedy for the victims of human rights violations, provided for in article 2(3) of the International Covenant on Civil and Political Rights. Similarly, it engages article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination which “imposes an obligation on countries to provide everyone in their jurisdiction with effective protection and remedies against any acts of racial discrimination which violate human rights as well as the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”Footnote 168 In limiting a claimant’s right to bring an action, or to enforce a judgment or order, in Australia, the act potentially prevents claims relating to the loss of cultural objects that arose as a result of human rights violations. This includes, for example, claims for objects compulsorily acquired by the state or lost during civil war, or armed conflicts. This concern is exacerbated when the claimants are a minority group or from such a group, particularly those in Australia, such as Aboriginal and Torres Strait Islanders. These concerns also arise in relation to that act’s possible impact on the right to self-determination, particularly the right to pursue cultural development, provided for in article 1 of the International Covenant on Civil and Political Rights and article 1 of the International Covenant on Economic, Social and Cultural Rights.
To alleviate these concerns, the act does three things. First, as discussed above, it does not apply to significant Australian cultural heritage material defined as Class A objects under the Protection of Movable Cultural Heritage Act 1986.Footnote 169 Second, the act provides for regulations (or guidelines) to be adopted that will require borrowing institutions to consult with persons or groups who may have an interest in proposed loansFootnote 170 and third, these regulation (or guidelines) will require borrowing institutions to publish information on proposed loans prior to their importation into Australia, enabling any person to raise questions about the object’s history and ownership.Footnote 171
In light of these measures, the Explanatory Memorandum concluded that:
The degree of limitation on other objects is considered proportionate to the objective of the Bill [Act] as the limitation on the ability to take action while the object is in Australia is necessary to achieve the stated objective of enhancing access to cultural objects. The limitation on the ability to take action through the Australian legal system, for the limited period of the loan, has been balanced against the public interest of the significant social, economic and cultural benefits that can be delivered as a result of Australian institutions being able to secure loans.Footnote 172
The act also potentially impacts on the right to a fair hearing provided for in article 14(1) of the International Covenant on Civil and Political Rights. This provides that all persons shall be equal before the courts and tribunals and that in the determination of any criminal or civil proceedings that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Clearly a statute that provides immunity from suit impacts upon this right. While it does not discriminate against particular groups in limiting the commencement of legal proceedings or the enforcement of judgments and applies equally to all persons within Australia, it is nevertheless a limitation. This, however, was considered “reasonable, necessary and proportionate” in light of the act’s objectives.Footnote 173 The Explanatory Memorandum concluded that the act “merely limits court action and the enforcement of judgments or orders while an object is in Australia and does not prevent claims from being started or action being taken to enforce judgments once the object is exported out of Australia. The protection provided by the legislation in this respect is only temporary.”Footnote 174
Finally, article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to take part in cultural life. To achieve this, article 15(2) requires states to take necessary steps to fully realize this right, which includes taking steps to develop and diffuse science and culture. Furthermore, article 15(4) recognizes the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields. It was concluded that the act gives effect to these obligations. In particular, the act “supports cultural exchange and international co-operation” and overcomes the limitation in existing commonwealth legislation [Protection of Movable Cultural Heritage Act 1986 (Cth)] that provides protection for objects on loan from overseas only in specific and limited circumstances.Footnote 175
CONCLUSION
Certainly, the introduction of such an immunity statute fosters international cultural exchange and greatly benefits Australians in enabling cultural objects to be exhibited in Australia. However, in light of these developments, it remains to be seen whether this statute with such a wide immunity will function as intended. Much will depend on how the borrowing institutions in Australia will react to the requirements imposed on them in the approval process.
The introduction of this immunity statute comes at a time when cultural heritage law in Australia is undergoing significant reconsideration. The federal government is engaged with a review of much of the cultural heritage legislation, including, in particular, the Historic Shipwreck Act 1976 (Cth),Footnote 176 the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth),Footnote 177 and the Protection of Movable Cultural Heritage Act 1986 (Cth).Footnote 178 At the same time, Australia is engaged in debate as to whether is ought to become a party to the UNIDROIT Convention and the Underwater Cultural Heritage Convention. The implementation of this immunity regime is thus made all the more difficult given the changing landscape of Australian heritage law.
ACKNOWLEDGMENTS: The author thanks Rosanna Cuppaidge for her research assistance. The author also thanks the following for discussing the issue of seizure and the Australian legislation: Liz Anderson, Lyn Allan, and Kim Brunoro (Ministry for the Arts, Attorney-General’s Department); Dr. Guy Hansen and Justine van Mourik (National Library of Australia); Carol Henry (Arts Exhibitions Australia) and Dr. Robert Edwards AO; Frank Howarth, Glenn Ferguson, and Scott Mitchell (Australian Museum); Judith Coombes and Katrina Hogan (Powerhouse Museum); and Charlotte Davy (Art Gallery New South Wales). The author also thanks Dr. Nout van Woundeberg for reading an earlier version of this article and providing very useful feedback and Carol Henry, Kim Brunoro, and Charlotte Davy for their close reading of the draft. Any error is that of the author.
