Finlayson Christopher: Protected Objects Amendment Bill — In Committee 
Finlayson Christopher: Protected Objects Amendment Bill — In Committee 
[Volume:632;Page:4261] 
CHRISTOPHER FINLAYSON (National) 
: 
 This is very useful legislation that amends the Antiquities Act 1975. As I said in my second reading speech this country has long acknowledged the need to protect our cultural heritage. It is interesting to observe that over the years there has been a significant growth in the trade of illicit items of significant cultural value. Indeed in 2004 I understand Interpol estimated that the illicit trade in art and artefacts worldwide was valued at somewhere between US$4 billion and US$10 billion. In my second reading speech I referred members to the well-known case of  
Attorney-General of New Zealand 
 v  
Ortiz 
 which went all the way to the House of Lords in England. The Attorney-General of New Zealand tried to do something about recovering a Maori taonga by reference to the Antiquities Act but failed because he was essentially seeking to enforce in England New Zealand legislation and that was contrary to international law. 
The Protected Objects Amendment Bill deals with a number of key provisions and I will discuss those briefly tonight. I will not go through the definitional clause which is really reasonably straightforward but I will talk about the first provisions which deal with preventing or prohibiting the export of protected New Zealand objects from New Zealand unless the person seeking to export the goods has obtained permission. The chief executive of the ministry is the person from whom permission should be obtained and failure to obtain permission without reasonable excuse in the circumstances will mean that the person exporting the goods commits an offence and will be liable to substantial fines. 
In order to assist the chief executive to make up his or her mind about whether prohibition should be ordered on export of a particular object expert examiners may be called to provide assistance. The term “expert examiner” is not defined in the legislation except in a fairly cursory way—it may include “a body corporate or an association of persons”—and whether a person is an expert in a particular area will depend obviously on the circumstances. Those people who are granted permission to export will obtain a certificate of permission and a register of objects will be kept. So I believe that this regime is a very sensible regime. This bill brings the Antiquities Act up to date and I heartily endorse it and indeed say it is overdue. 
Clause 13 is the one that I find particularly interesting. If someone brings into New Zealand the equivalent of my friend Mr Groser’s Elgin Marbles or an unlawfully exported protected foreign object then for the first time steps may be taken in New Zealand to seek recovery of those objects and the return of those objects to the country whence they came. This is dealt with in clause 13. 
I would like to refer to just a couple of matters and maybe my friend Mr Fairbrother may care to comment on a couple of points that I will raise as well. The first is that there is an import prohibition on bringing unlawfully exported objects into New Zealand. If they are brought in within the limitation period set out in section 10B inserted by clause 13 then a reciprocating State may bring a claim in a court of competent jurisdiction—that will probably be the High Court—for the return of the goods. The limitation period specified is 3 years from the date on which the claimant knew the location in New Zealand of the object and the identity of the person who possessed it and 50 years from the date on which the object was unlawfully exported. 
The point I am not very clear about—and this is one that Mr Fairbrother may care to comment on—relates to the fact that the court must order the return of the unlawfully exported protected foreign object if the claimant establishes that the removal infringes in some way on the foreign law. The bill does not state whether the claimant is required to prove the circumstances set out in the clause beyond reasonable doubt or on the balance of probabilities. I would have thought it would be on the balance of probabilities although the seriousness of the claim could well bring it within the ambit of a standard of proof of beyond reasonable doubt. If the return of the unlawfully exported protected foreign object is ordered then the court may require the relevant reciprocating State to pay fair and reasonable compensation in the circumstances that are set out in section 10C inserted by clause 13. So there is an interesting question as to how one assesses that compensation. Very important in the bill is the provision for what happens if foreign protected objects are stolen. I think the regime provided there is likewise a very useful addition. 
So in conclusion I think it is well past the time that we acceded to bringing into New Zealand domestic law the Unesco and International Institute for the Unification of Private Law conventions—they are well overdue. That will address the kind of mischief that was outlined for New Zealand in  
Attorney-General of New Zealand 
 v 
 Ortiz 
. The rest of the bill simply brings the Antiquities Act 1975 up to date by substituting various terms and I will not waste time on that. These were the key points I wanted to make although as I said there are some interesting questions about whether it is beyond reasonable doubt or the balance of probabilities that needs to be proved. There will also be some interesting questions about how one assesses reasonable compensation in the circumstances.