Finlayson Christopher: Protected Objects Amendment Bill — In Committee 
Finlayson Christopher: Protected Objects Amendment Bill — In Committee 
[Volume:632;Page:4392] 
CHRISTOPHER FINLAYSON (National) 
: 
 I do not want to disagree with other honourable members especially with my learned friend who has just spoken and for whom I have enormous respect and affection but I thought that the Constable exhibition was pretty boring and chocolate boxy myself. But there we are; I have to admit I am a philistine. 
As Mr Groser has said National supports this bill. It amends and improves the Antiquities Act which provides for a system of domestic control over only the export of cultural heritage objects but as the Minister has indicated does not provide the means to recover objects that have been illegally exported. That is why as Mr Groser said the Unesco convention provides specific structures for international cooperation in the cross-border recovery of items that are significant in terms of New Zealand’s cultural heritage. That is also why the International Institute for the Unification of Private Law (UNIDROIT) convention complements the Unesco convention and allows for a person to sue in a foreign court for the return of stolen cultural objects. 
This is a very interesting issue which I am pleased the New Zealand legislature has finally addressed. In previous speeches I have referred honourable members to decisions of the English Court of Appeal and the House of Lords in a very interesting case called  
Attorney-General for New Zealand 
 v  
Ortiz 
. In that case the then Attorney-General—I think it was Jim McLay—sought possession of a Maori carving and an order for delivery up of that carving. It had been sold to an Englishman and was found to be for sale in London. 
But the Court of Appeal in England held that forfeiture to the Crown under the relevant section of the New Zealand Historic Articles Act which was the precursor of the Antiquities Act 1975 was not automatic and the act had not happened here. Secondly the English Court of Appeal stated that the section was in any event unenforceable in England. The House of Lords stated that no seizure had taken place by the New Zealand Customs Service or the New Zealand Police and therefore the Crown was neither the owner of the object nor entitled to possession of the article in question—although the House of Lords declined to embark upon the difficult discussion of whether the Historic Articles Act was a public law that could not be enforced in England because it was an Act done in the exercise of sovereign authority that would not be enforced outside New Zealand. 
It was interesting to observe that almost 30 years ago Lord Denning in the English Court of Appeal concluded his judgment by stating: “The retrieval of such works of art must be achieved by diplomatic means. Best of all there should be an international convention on the matter where individual countries can agree and pass the necessary legislation. It is a matter of such importance that I hope steps can be taken to this end.” 
Actually Lord Denning’s comments on the issue were themselves the subject of comment by the former President of the New Zealand Court of Appeal in the famous “Spycatcher” case which was heard in New Zealand in early 1988 and I must say that I have always preferred Sir Robin Cooke’s approach. In that case Sir Robin stated that the MI6 agent Mr Peter Wright owed allegiance to the Crown in right of the United Kingdom that New Zealand has the same sovereign as the United Kingdom and that the Queen’s courts should protect their interests wherever they originate. If that approach to the law had been taken then that would have been very welcome in this area especially as between England Australia Canada and New Zealand. But unfortunately that is not the way that New Zealand law—and English law—has developed. Hence we have the need for international conventions incorporating not only Commonwealth countries but other countries as well. So that is the rationale behind why we have needed an international convention—because otherwise international law would get in the way. 
My concluding comments deal with clause 2 of the bill which deals with the commencement provisions. Subclause (1) provides: “Section 13 comes into force on a date appointed by the Governor-General by Order in Council.” Of course that is the part that implements the two international conventions. The rest of the legislation comes into force on a specified date. We have just heard from the Minister that that date will be in November although we do not know when the Order in Council will be signed by the Governor-General. 
Members should note also that the new regime has no retrospective effect—and that point was made by Mr Mark the other night. It takes effect only from the date appointed by the Governor-General. Presumably that is the way it will also be enacted in reciprocating States which means that many valuable objects are already lost to New Zealand and will not be recovered. But from what I can see—and I am sure that the Minister will agree with this—there is no way around that problem. One can only hope that this legislation and the structure it implements will in the future prevent a repeat of the very unfortunate facts that gave rise to the Ortiz litigation. 
As I said National supports this legislation and the sooner it is in force the better it will be. 
Clause 1 agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 48 in the name of the Hon Judith Tizard to clause 2 be agreed to. 
Clause 2 as amended agreed to. 
Bill to be reported with amendment presently.