Cultural Property (Protection in Armed Conflict) Act 2012

1: Title
This Act is the Cultural Property (Protection in Armed Conflict) Act 2012.
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
2: One or more Orders in Council may be made appointing different dates for the commencement of different provisions and for different purposes.
3: An order under this section is secondary legislation ( see Part 3 OIC SR 2013/192 2013-07-01 Cultural Property (Protection in Armed Conflict) Act 2012 This Act brought into force on 1 July 2013 by SR 2013/192. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) brought into force 1 July 2013 clause 2 Cultural Property (Protection in Armed Conflict) Act Commencement Order 2013 Section 2(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Preliminary provisions
3: Interpretation
1: In this Act, unless the context otherwise requires,— Convention Schedule 1 First Protocol Schedule 2 First Protocol Party grave violation offence section 7 Minister New Zealand national
a: a New Zealand citizen; or
b: a body corporate established by or under the law of New Zealand Second Protocol Schedule 3 Second Protocol Party serious violation offence section 7
2: Reference in this Act to a territory includes a reference to any part of a territory.
3: To avoid doubt, reference in this Act to New Zealand, in relation to the place of any act or omission amounting to the commission of an offence, includes a reference to the waters within the outer limits of the territorial sea of New Zealand (as defined by section 3
4: Meaning of cultural property and enhanced protection property
1: In this Act, cultural property
a: movable or immovable property of great importance to the cultural heritage of every people:
b: buildings whose main and effective purpose is to preserve or exhibit movable property mentioned in paragraph (a):
c: centres containing a large amount of property mentioned in paragraph (a) or buildings mentioned in paragraph (b).
2: Examples of property that may fall within subsection (1)﻿(a) include—
a: monuments of architecture, art, or history (whether religious or secular):
b: archaeological sites:
c: groups of buildings that, as a whole, are of historical or artistic interest:
d: works of art:
e: manuscripts, books, and other objects of artistic, historical, or archaeological interest:
f: scientific collections:
g: collections of books or archives or of reproductions of anything mentioned in paragraphs (a) to (f).
3: Examples of property that may fall within subsection (1)﻿(b) include—
a: museums:
b: large libraries:
c: depositories of archives:
d: refuges intended to shelter movable property mentioned in subsection (1)﻿(a) in the event of armed conflict.
4: In this Act, enhanced protection property
5: Occupation of territory
1: References in this Act to occupation of a territory (or to occupied territory) must be read in accordance with this section.
2: In determining whether a territory is occupied, regard must be had to Article 42 of the Regulations respecting the Laws and Customs of War on Land annexed to the Convention respecting the Laws and Customs of War on Land (Hague IV), done at The Hague on 18 October 1907.
3: The fact that occupation of a territory meets with no armed resistance does not prevent the territory from being considered occupied.
6: Act binds the Crown
This Act binds the Crown.
2: Serious violations of Second Protocol
Offences
7: Serious violation offences
1: A person commits an offence if—
a: the person intentionally does an act (whether in or outside New Zealand) mentioned in subsection (2); and
b: the act is done in a relevant situation of hostilities; and
c: the property in relation to which the act is done is property protected under the Convention or the Second Protocol; and
d: the person knows or has reason to believe that the property is,—
i: in the case of an act mentioned in subsection (2)﻿(a) or (b), enhanced protection property:
ii: in any other case, cultural property.
2: The acts are—
a: making enhanced protection property the object of attack:
b: using enhanced protection property, or its immediate surroundings, in support of military action:
c: the extensive destruction or the extensive appropriation of cultural property:
d: making cultural property the object of attack:
e: stealing, appropriating, or vandalising cultural property.
3: Reference in subsection (2)﻿(b) to the use of property or surroundings in support of military action includes use for purposes that are likely to expose the property to destruction or damage in the event of armed conflict.
4: A person does not commit an offence against subsection (1) if the person is acting by imperative military necessity or otherwise in accordance with the Convention and the Second Protocol.
5: In this section,— relevant situation of hostilities vandalising
8: Acts ancillary to serious violation offences
1: A person commits an offence if the person—
a: does or omits an act for the purpose of aiding any person to commit a serious violation offence; or
b: abets any person in the commission of a serious violation offence; or
c: incites, counsels, or procures any person to commit a serious violation offence.
2: A person commits an offence if the person—
a: conspires with another person to commit a serious violation offence; or
b: attempts to commit a serious violation offence; or
c: is an accessory after the fact to a serious violation offence.
3: Subsections (1) and (2) apply—
a: whether the conduct mentioned in any of paragraphs (a) to (c) of those subsections occurs in New Zealand or elsewhere; and
b: whether the serious violation offence is or is intended to be committed in New Zealand or elsewhere.
4: A person does not commit an offence against subsection (1) or (2) unless the person is a person who could be liable for the serious violation offence in question.
9: Jurisdiction in relation to offences outside New Zealand
1: No proceedings for an offence against section 7 8
a: is a New Zealand national; or
b: is a person who is subject to the Armed Forces Discipline Act 1971
c: has been found in New Zealand, has not been extradited, and is to be charged with, or in relation to, a grave violation offence.
2: To avoid doubt—
a: sections 8 400
b: paragraph (a) does not affect the application of those sections in cases where proceedings are excluded by subsection (1).
10: Superior orders
1: In any proceedings for an offence against a provision of this Part, it is a defence for the defendant to show that the defendant—
a: was under a legal obligation to obey orders of a government or of a superior (whether military or civilian); and
b: was acting under an order of that government or superior; and
c: did not know the order was unlawful.
2: For the purposes of subsection (1), the defendant must be taken to have shown those facts if—
a: sufficient evidence is adduced to raise an issue with respect to them; and
b: the contrary is not proved by the prosecution beyond reasonable doubt.
3: The defendant may not rely on the defence in subsection (1) if the order in question was manifestly unlawful.
4: It is a question of law—
a: whether an obligation is a legal obligation:
b: whether an order is manifestly unlawful.
5: Nothing in this section affects or limits any other defence that may be available to the defendant.
11: Offences by commanders and superiors
1: If an offence against a provision of this Part is committed by forces that are under the effective command and control of a military commander, the commander commits the same offence if it is proved that—
a: the offence committed by the forces was committed as a result of the commander's failure to exercise control properly over the forces; and
b: the commander either knew or ought to have known that the forces were committing, or were about to commit, the offence; and
c: the commander failed to take all necessary and reasonable measures within his or her power to prevent or repress commission of the offence or to submit the matter to the competent authorities for investigation and prosecution.
2: If an offence against a provision of this Part is committed by subordinates that are under the effective authority and control of a superior, the superior commits the same offence if it is proved that—
a: the offence committed by the subordinates was committed as a result of the superior's failure to exercise control properly over the subordinates; and
b: the superior either knew, or consciously disregarded information that clearly indicated, that the subordinates were committing, or were about to commit, the offence; and
c: the offence concerned activities within the effective responsibility and control of the superior; and
d: the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress commission of the offence or to submit the matter to the competent authorities for investigation and prosecution.
3: Reference in subsection (2) to subordinates that are under the effective authority and control of a superior does not include forces that are under the effective command and control of a military commander.
4: In this section, military commander
5: Nothing in this section affects any criminal liability that arises apart from this section. Penalties
12: Penalties for Part 2 offences
1: A person who commits an offence mentioned in subsection (2) is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 14 years:
b: in the case of a body corporate, to a fine not exceeding $500,000.
2: The offences are—
a: a grave violation offence:
b: an offence against section 8(1)
3: A person who commits an offence mentioned in subsection (4) is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 7 years:
b: in the case of a body corporate, to a fine not exceeding $200,000.
4: The offences are—
a: a serious violation offence other than a grave violation offence:
b: an offence against section 8(1)
c: an offence against section 8(2)﻿(a)
5: A person who commits an offence against section 8(2)﻿(b) or (c)
a: in the case of an individual, to imprisonment for a term not exceeding half the maximum term to which the individual would have been liable if he or she had committed the serious violation offence in question:
b: in the case of a body corporate, to a fine not exceeding half the maximum fine to which the body would have been liable if it had committed the serious violation offence in question. Section 12(1) amended 1 July 2013 section 44(2) Section 12(3) amended 1 July 2013 section 44(2) Section 12(5) amended 1 July 2013 section 44(2) Extradition
13: Extradition
1: For the purposes of the Extradition Act 1999 section 15 104
a: was concluded before commencement of this Part; and
b: is in force between New Zealand and another country that is a party to the Second Protocol.
2: Subsection (1) does not apply if the grave violation offence—
a: is already an offence described in the extradition treaty; or
b: is committed by a person who is—
i: a member of the armed forces of a state that is not a Second Protocol Party; or
ii: a national of such a state, unless they are serving in the armed forces of a Second Protocol Party.
3: If a grave violation offence is deemed under subsection (1) to be an offence described in an extradition treaty, no person may be surrendered for that offence in accordance with the provisions of the Extradition Act 1999
4: In this section, country
3: Cultural property removed from occupied territory
Interpretation
14: Interpretation of Part 3
In this Part, unless the context otherwise requires,— home state issuing officer
a: a Judge:
b: a Justice of the Peace, Community Magistrate, or Registrar who is for the time being authorised to act as an issuing officer under section 108 Judge Registrar
a: means a Registrar of the District Court
b: includes a Deputy Registrar of either court remove search warrant section 21(3) seized smuggled property
a: means cultural property that has been removed from the territory of a First Protocol Party in the following circumstances:
i: the territory was occupied by another First Protocol Party at the time of removal; and
ii: the removal was unlawful; and
iii: the removal occurred at any time (whether before, on, or after commencement of this Part) but no earlier than 7 August 1956; but
b: does not include cultural property that has been removed from the territory of New Zealand unlawful Section 14 Registrar amended 1 March 2017 section 261 District Court Act 2016 Offences
15: Removal of cultural property from occupied territory
1: A person commits an offence if—
a: the person intentionally removes cultural property from an occupied territory of a First Protocol Party other than New Zealand; and
b: the removal is unlawful; and
c: the property is enhanced protection property; and
d: at the time of the removal, the person knows or has reason to believe that—
i: the property is enhanced protection property; and
ii: the territory is an occupied territory of a First Protocol Party; and
iii: the removal is unlawful.
2: A person commits an offence if—
a: the person intentionally removes cultural property from an occupied territory of a First Protocol Party other than New Zealand; and
b: the removal is unlawful; and
c: at the time of the removal, the person knows or has reason to believe that—
i: the property is cultural property; and
ii: the territory is an occupied territory of a First Protocol Party; and
iii: the removal is unlawful.
3: Subsections (1) and (2) apply to a person only if the person is—
a: a New Zealand national; or
b: a person subject to the Armed Forces Discipline Act 1971
16: Acts ancillary to removal offences
1: A person commits an offence if the person—
a: does or omits an act for the purpose of aiding any person to commit a removal offence; or
b: abets any person in the commission of a removal offence; or
c: incites, counsels, or procures any person to commit a removal offence.
2: A person commits an offence if the person—
a: conspires with another person to commit a removal offence; or
b: attempts to commit a removal offence; or
c: is an accessory after the fact to a removal offence.
3: Subsections (1) and (2) apply whether the conduct mentioned in any of paragraphs (a) to (c) of those subsections occurs in New Zealand or elsewhere.
4: A person does not commit an offence against subsection (1) or (2) unless the person is a person who could be liable for the removal offence in question.
5: In this section, removal offence section 15(1) or (2)
17: Dealing in smuggled property
1: A person commits an offence if, without lawful authority,—
a: the person deals in enhanced protection smuggled property; and
b: at the time of dealing the person knows or has reason to believe that the property is enhanced protection smuggled property.
2: A person commits an offence if, without lawful authority,—
a: the person deals in smuggled property; and
b: at the time of dealing the person knows or has reason to believe that the property is smuggled property.
3: For the purposes of this section, a person deals
a: imports the property, or arranges for the property to be imported, into New Zealand; or
b: exports the property, or arranges for the property to be exported, from New Zealand; or
c: does any of the following, or arranges for any of the following to be done, in New Zealand:
i: obtains or acquires ownership, possession, or custody of the property:
ii: transfers or disposes of ownership, possession, or custody of the property.
4: Subsections (1) and (2) do not apply to property imported into New Zealand before commencement of this Part.
5: Nothing in this Act affects the application of Part 4
6: In this section,— enhanced protection smuggled property export import Penalties
18: Penalties for Part 3 offences
1: A person who commits an enhanced protection offence is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 5 years or to a fine not exceeding $100,000, or to both:
b: in the case of a body corporate, to a fine not exceeding $200,000.
2: An enhanced protection offence
a: an offence against section 15(1) 17(1)
b: an offence against section 16(1) section 15(1)
c: an offence against section 16(2)﻿(a) section 15(1)
3: A person who commits a non-enhanced protection offence is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 3 years or to a fine not exceeding $50,000, or to both:
b: in the case of a body corporate, to a fine not exceeding $100,000.
4: A non-enhanced protection offence
a: an offence against section 15(2) 17(2)
b: an offence against section 16(1) section 15(2)
c: an offence against section 16(2)﻿(a) section 15(2)
5: A person who commits an offence against section 16(2)﻿(b) or (c) Section 18(1) amended 1 July 2013 section 44(3) Section 18(3) amended 1 July 2013 section 44(3) Section 18(5) amended 1 July 2013 section 44(3) Search, seizure, and forfeiture
19: Liability to forfeiture
1: Smuggled property that is in New Zealand is liable to be forfeited to the Crown (whether or not an offence against any provision of this Part has been or is suspected of having been committed).
2: The forfeiture takes effect when the property is seized.
3: However, property is not liable to be seized or forfeited under this Part if it is imported into New Zealand before the commencement of this Part.
20: Application of Customs and Excise Act 2018
1: The provisions of the Customs and Excise Act 2018
2: However, the following provisions of that Act do not apply to such property:
a: section 182
b: section 186(b)﻿(ii) clauses 1(3)﻿(b) 4(2)﻿(b) 6
c: section 189
3: Subsection (2) has effect whether or not the property is unlawfully imported, or unlawfully exported, within the meaning of the Customs and Excise Act 2018
4: The provisions applied by subsection (1) have effect subject to the following modifications:
a: section 178
i: section 178(2)
ii: section 178(3)
b: section 181(2)﻿(a)
c: subsection (5) of this section applies instead of section 188
5: On conviction of a person for an offence against section 17 Customs and Excise Act 2018
a: the smuggled property in respect of which the offence was committed:
b: any goods forfeited under section 176(3) or (4)
6: The provisions of the Customs and Excise Act 2018 Section 20 replaced 1 October 2018 section 443(3) Customs and Excise Act 2018
21: Police powers of entry and search
1: The power in subsection (2) is exercisable if an issuing officer is satisfied that there are reasonable grounds for believing that there is in or on a place or thing—
a: smuggled property; or
b: property suspected of being smuggled property.
2: The issuing officer may issue a warrant to enter and search the place or thing for the purposes of searching for and seizing the property in question.
3: Any such warrant is referred to in this Part as a search warrant
4: The power to issue a search warrant is exercisable on application made by a constable on oath.
5: A search warrant may be subject to such conditions specified in the warrant as the issuing officer considers reasonable.
6: A search warrant must be directed either to a constable by name or to all constables generally but, in either case, it may be executed by any constable.
7: The period specified by the issuing officer as the period for which a search warrant is to be in force may not exceed—
a: 14 days from the date of issue; or
b: such longer period (not exceeding 30 days from the date of issue) as the issuing officer considers necessary for execution of the warrant.
8: A search warrant may only be executed on 1 occasion during the period in which it is in force unless the issuing officer authorises it to be executed on more than 1 occasion.
9: The issuing officer may only give that authorisation if he or she is satisfied that it is required for the purposes for which the warrant is being issued.
10: A search warrant is to be treated as having been executed when the person executing it—
a: has seized all the items specified in the warrant; or
b: leaves the place or thing being searched and does not return within 4 hours.
22: Application for search warrant
1: An application for a search warrant must contain, in reasonable detail, the following particulars:
a: the name of the applicant:
b: the grounds on which the application is made:
c: the address or other description of the place or thing proposed to be searched:
d: a description of the smuggled property or property suspected of being smuggled property believed to be in or on the place or thing:
e: the period for which the warrant is sought:
f: if the applicant wants the warrant to be capable of being executed on more than 1 occasion, the grounds on which execution on more than 1 occasion is believed to be necessary.
2: The issuing officer may require the applicant to supply further information concerning the grounds on which the warrant is sought.
3: The applicant must disclose in the application—
a: details of any other applications for a search warrant that the applicant knows to have been made within the previous 3 months in respect of the place or thing proposed to be searched; and
b: the result of that application or those applications.
4: The applicant must, before making the application, make reasonable inquiries for the purpose of complying with subsection (3).
5: Except where subsection (6) applies—
a: the application must be in writing; and
b: the application may be transmitted to the issuing officer electronically; and
c: the applicant must appear in person before the issuing officer.
6: The issuing officer may allow the application to be made orally (for example, by telephone call) and excuse the applicant from making a personal appearance if the issuing officer is satisfied that—
a: the delay that would be caused by requiring the applicant to appear in person would compromise the effectiveness of the search; and
b: the information required by subsections (1) to (3) has been supplied to the issuing officer; and
c: the question of whether the warrant should be issued can properly be determined without the applicant's appearance in person.
7: If an application is allowed to be made orally, the issuing officer must record the grounds for the application as soon as practicable.
23: Form and content of search warrant
1: A search warrant must be in the form prescribed by regulations made under section 43
2: A search warrant must contain, in reasonable detail, the following particulars:
a: the name or other individual designation of the issuing officer and the date of issue:
b: the provision authorising the issue of the warrant:
c: that the person executing the warrant may use any assistance that is reasonable in the circumstances:
d: that the person executing the warrant may use any force that is reasonable in the circumstances to enter or break open, or access any area within, the place or thing being searched:
e: the address or description of the place or thing that may be searched:
f: a description of the item or items that may be sought in or on the place or thing:
g: the period during which the warrant may be executed:
h: any conditions to which the warrant is subject:
i: if the warrant may be executed on more than 1 occasion, the number of times that it may be executed.
24: Powers exercisable under search warrant
1: A search warrant authorises anyone who may execute it—
a: to enter and search the place or thing at any time that is reasonable in the circumstances:
b: to request any person to assist with the entry and search (including, without limitation, a member of a hapū or iwi if the place is of cultural or spiritual significance to that hapū or iwi):
c: to use any force that is reasonable for the purposes of the entry and search:
d: to seize any item authorised to be seized:
e: to do any of the following for the purposes of carrying out the entry and search:
i: bring any equipment into or onto the place or thing:
ii: use that equipment in or on the place or thing or use any other equipment found there:
iii: extract such electricity from the place or thing as it is reasonable to extract in order to operate the equipment:
f: to copy any document, or part of a document, that may be lawfully seized:
g: to take photographs or sound or video recordings of the place or thing, and of any item found there, if he or she has reasonable grounds to believe that the photographs or sound or video recordings may be relevant in any proceedings related to the entry and search.
2: The person executing a search warrant may seize any other items found in the course of carrying out the search (in addition to the items described in the warrant) if the person has reasonable grounds to believe that he or she could have seized the items under any other search warrant that could have been obtained by him or her under this Part.
3: The person executing a search warrant may, in the manner and for the duration that is reasonable for the purposes of carrying out the search,—
a: secure the place or thing, any area within it, or any items found within it:
b: exclude any person from the place or thing, or any area within it, or give any other reasonable direction to such a person, if the person executing the warrant has reasonable grounds to believe that the person will obstruct or hinder execution of the warrant.
4: Section 130 subpart 3
5: This section has effect subject to any conditions specified in the search warrant.
25: Duty to announce entry and search
1: The person executing a search warrant must, before initial entry into or onto the place or thing—
a: announce his or her intention to enter and search the place or thing under a statutory power; and
b: identify himself or herself.
2: However, he or she is not required to comply with subsection (1) if he or she believes on reasonable grounds that—
a: no person is lawfully present in or on the place or thing; or
b: compliance with that subsection would—
i: endanger the safety of any person; or
ii: prejudice the successful execution of the warrant; or
iii: prejudice ongoing investigations under this Act.
3: The power to use reasonable force to effect entry into or onto the place or thing is exercisable only if—
a: subsection (2) applies; or
b: following a request, the person present refuses entry or does not allow entry within a reasonable time.
26: Duty to give documents to occupier
1: If the occupier of the place or thing is present when a search warrant is being executed, the person executing it must, before or on initial entry,—
a: give the occupier a copy of the warrant; and
b: produce to the occupier evidence of his or her identity (which may include details of a unique identifier instead of a name).
2: If the occupier of the place or thing is not present when a search warrant is being executed, the person executing it must,—
a: on completion of the search, leave a copy of the warrant and the notice mentioned in subsection (3) in a prominent position at the place or on the thing; or
b: if that is not reasonably practicable, provide a copy of the warrant and the notice to the occupier no later than 7 days after execution of the warrant.
3: The notice is a written notice containing the following particulars:
a: the date and time of the commencement and completion of the search:
b: the name or unique identifier of the person executing the warrant:
c: the address of the office to which inquiries may be made:
d: if nothing was seized, the fact that nothing was seized:
e: if anything was seized, the fact that seizure occurred.
4: For the purposes of this section, the following persons may not be treated as the occupier:
a: a person who appears to be under 14 years of age:
b: a person who the person executing the warrant has reasonable grounds to believe is not the occupier.
5: Reference in this section and in section 27
27: Inventory of items seized
1: If anything is seized in the execution of a search warrant, the person executing the warrant must provide a notice—
a: to each person whom the person executing the warrant knows or has reason to believe is the owner of, or has an interest in, the thing seized; or
b: if any such person is overseas, to his or her agent in New Zealand.
2: The notice may be provided at the time of or as soon as reasonably practicable after the seizure, but no later than 7 days after the seizure.
3: The notice must be in the form prescribed by regulations made under section 43
4: The notice must be accompanied by a copy of the search warrant.
5: The person executing a search warrant must make reasonable inquiries for the purposes of complying with subsection (1).
28: Deferral of or dispensation from notice obligations
1: A Judge may postpone the obligation to comply with a relevant notice requirement for a specified period not exceeding 12 months.
2: The Judge may only do so if he or she is satisfied that there are reasonable grounds for believing that compliance with the obligation would—
a: endanger the safety of any person; or
b: prejudice ongoing investigations under this Act or the execution of the search warrant on subsequent occasions.
3: The power in subsection (1) is exercisable on application by the person executing the warrant, and any such application may be made—
a: at the time of the initial application for the warrant; or
b: at any time before expiry of the period of 7 days after the warrant is finally executed.
4: A person who obtains an order under subsection (1) may apply to a Judge before expiry of that order—
a: for one further postponement of the obligation to comply with the relevant notice requirement; or
b: for a permanent dispensation from that obligation.
5: On an application under subsection (4), the Judge may order a further postponement for a specified period not exceeding 12 months, or a permanent dispensation, if he or she is satisfied that there are reasonable grounds for believing that compliance with the obligation would—
a: endanger the safety of any person; or
b: prejudice ongoing investigations under this Act or the execution of the warrant on subsequent occasions.
6: However, a Judge may not order a further postponement of, or permanent dispensation from, an obligation in respect of something that has been seized, unless the thing seized is—
a: a copy or clone of any information taken or made; or
b: something the possession of which by the person from whom it was seized is prohibited under New Zealand law.
7: A relevant notice requirement
a: section 26(2)
b: section 27
29: Seizure to be treated as seizure under Customs and Excise Act 2018
1: Any item seized in the execution of a search warrant is to be treated for the purposes of subpart 9
2: A notice provided under section 27 section 181 Section 29 replaced 1 October 2018 section 443(3) Customs and Excise Act 2018
30: Relationship with other powers
The powers in this Part to issue and execute a search warrant are in addition to any other powers of entry, search, or seizure that may exist apart from this Part. Retention of seized property
31: Retention by Ministry
1: If smuggled property or property suspected of being smuggled property is seized, the property must be—
a: transferred to the Ministry; and
b: held by the Ministry, in accordance with any directions of the chief executive of the Ministry, until all criminal and civil proceedings under or by virtue of this Act in relation to the property have been finally determined.
2: Subsection (1) has effect despite any provision to the contrary in any other enactment.
3: In this section, Ministry Compensation
32: Application for compensation
1: If smuggled property is forfeited, a good faith purchaser of the property may apply to a court of competent jurisdiction for an assessment of compensation.
2: The application must be made—
a: within the period of 3 months beginning with the date on which notice of seizure is given (or treated as having been given) to the good faith purchaser under section 181
b: if the good faith purchaser does not receive notice under that section, within the period of 6 months beginning with the date of seizure; or
c: within such further time as the court may allow.
3: Notice of the application must be served on the Minister in accordance with rules of court.
4: The good faith purchaser must apply to the court in accordance with those rules for directions as to service on anyone else.
5: On hearing the application under subsection (1), the court must assess whether an amount should be paid to the good faith purchaser by way of compensation and, if so, what that amount should be.
6: In this section, good faith purchaser
a: in good faith for value; and
b: after the property became smuggled property; and
c: without knowledge that the property was smuggled property. Section 32(2)﻿(a) amended 1 October 2018 section 443(3) Customs and Excise Act 2018
33: Application in event of non-payment
1: An assessment under section 32
2: However, if the compensation is not paid to the good faith purchaser within a period of 6 months beginning with the date of the assessment, the good faith purchaser may apply to the court for a further order releasing the property from forfeiture (and from further liability to forfeiture) and ordering the return of the property to the good faith purchaser.
3: In deciding whether to make an order under subsection (2), the court must have regard to (among other things)—
a: the likelihood that the compensation will be paid in the near future; and
b: any indication by the home state that it does not wish to seek the return of the property.
4: An order under subsection (2) may include such ancillary directions as the court thinks fit. Return
34: Return of cultural property
1: To avoid doubt, smuggled property that is seized may not be returned to its home state by the Minister until all relevant proceedings in relation to it under or by virtue of this Act have been finally determined.
2: No customs duties or taxes are payable in respect of smuggled property that is returned to its home state by the Minister.
4: Convention emblem
35: Meaning of Convention emblem
In this Part, Convention emblem
36: Unauthorised use of emblem
1: A person commits an offence if—
a: the person uses the Convention emblem in a manner that indicates or suggests—
i: that property is cultural property protected by the Convention; or
ii: that a person is acting in an official capacity in execution of the Convention; or
iii: that a place or vehicle or other thing has a particular status under the Convention; and
b: use of the Convention emblem in that manner by the person is not authorised.
2: It is immaterial whether the person intended use of the emblem to indicate or suggest any of the things mentioned in subsection (1)﻿(a).
3: A person commits an offence if—
a: the person places the Convention emblem on immovable cultural property; and
b: the person is authorised to use the Convention emblem in that manner; but
c: the person does not at the same time display a copy of that authorisation on the property.
4: For the purposes of this section, use is authorised if it is authorised—
a: by regulations made under section 43
b: by specific authority given by the Minister or a person acting on behalf of the Minister.
5: In determining whether use should or should not be authorised (whether by regulations or specific authority), regard must be had to the principles, objectives, and requirements of the Convention.
6: Use may be authorised by reference to the type of persons who may use the emblem, the type of property or place in respect of which it may be used, the type of use that may be made of it, the circumstances in which it may be used, whether the use involves the distinctive emblem itself or a design resembling it, or by any other means.
7: A specific authority given under subsection (4)﻿(b)—
a: may relate to a particular person or a particular class of persons:
b: may be given subject to conditions:
c: may be withdrawn by the Minister or a person acting on behalf of the Minister.
8: In the case of use authorised by regulations made under section 43
9: In this section, use
37: Exceptions and defences
1: Section 36(1)
a: the use occurs by reason only of using a registered trade mark; and
b: the use is in relation to goods or services in respect of which the trade mark is registered; and
c: the trade mark was registered in relation to those goods or services before the commencement of this Part.
2: In any proceedings for an offence against section 36(1)
3: In any proceedings for an offence against section 36(1)
a: use of the Convention emblem was on goods; and
b: the Convention emblem had been applied to the goods by some other person before the defendant acquired them; and
c: that other person had—
i: manufactured or dealt with the goods in the course of trade; and
ii: lawfully used the Convention emblem on similar goods before the commencement of this Part.
4: Registered trade mark section 5(1)
38: Penalties for Part 4 offences
A person who commits an offence against section 36(1) or (3)
a: in the case of an individual, to a fine not exceeding $5,000:
b: in the case of a body corporate, to a fine not exceeding $50,000. Section 38 amended 1 July 2013 section 44(4)
5: Miscellaneous
Prosecution of offences
39: Attorney-General's consent required for prosecutions
1: Proceedings for an offence against any provision of this Act may not be instituted in any court except with the consent of the Attorney-General.
2: A person alleged to have committed an offence may be arrested or a warrant for his or her arrest may be issued and executed, and he or she may be remanded in custody or on bail, even though the consent of the Attorney-General has not yet been obtained under subsection (1), but no further proceedings may be taken until the consent has been obtained.
40: Liability of directors and officers of bodies corporate
If a body corporate commits an offence against any provision of this Act, every director and every person concerned in the management of the body corporate commits the same offence if it is proved—
a: that the act that constituted the offence took place with his or her authority, permission, or consent; or
b: that he or she knew, or could reasonably be expected to have known, that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
41: Evidence
1: In any proceedings under or by virtue of this Act, a certificate by the Minister of Foreign Affairs in respect of a relevant fact is to be taken to be conclusive evidence of that fact.
2: A relevant fact
a: that a country is or is not, or was or was not at any material time, a First Protocol Party or a Second Protocol Party:
b: that a situation is or is not, or was or was not at any material time, a relevant situation of hostilities:
c: that a territory is or is not, or was or was not at any material time, occupied territory of a First Protocol Party or a territory occupied by a First Protocol Party. Other enactments, etc
42: Relationship with other enactments, etc
Nothing in this Act affects or limits the scope or application of any other enactment, or rule of law, regulating acts or omissions in relation to cultural property. Regulations
43: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations—
a: prescribing the form mentioned in section 20(4)﻿(b)
b: prescribing the form of a search warrant for the purposes of section 23
c: prescribing the form of a notice for the purposes of section 27
d: illustrating the form of the distinctive emblem of the Convention (as described in the Convention):
e: authorising use of the Convention emblem for the purposes of section 36
f: providing for such other matters as are contemplated by or necessary for giving full effect to this Act or for its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 43(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Consequential amendments
44: Consequential amendments to sections 12, 18, and 38
OIC SR 2013/162 2013-07-01 Cultural Property (Protection in Armed Conflict) Act 2012 Sections 12, 18 and 38 of this Act are amended when the Criminal Procedure Act 2011 comes fully into force (1 July 2013 as per SR 2013/162). OIC SR 2013/162 2013-07-02 Cultural Property (Protection in Armed Conflict) Act 2012 This section expires and is repealed on the close of the day when the Criminal Procedure Act 2011 comes fully into force (1 July 2013 as per SR 2013/162). Section 44 repealed 2 July 2013 section 44(5)
45: Amendment to Extradition Act 1999
1: This section amends the Extradition Act 1999
2: Section 101A(2)
j: section 13 OIC SR 2013/192 2013-07-01 Extradition Act 1999 This Act brought into force on 1 July 2013 by SR 2013/192.
46: Amendment to Flags, Emblems, and Names Protection Act 1981
1: This section amends the Flags, Emblems, and Names Protection Act 1981
2: Schedule 3 The following table is small in size and has 2 columns. The table is an amendment to the table in Schedule 3 of the Flags, Emblems, and Names Protection Act 1981 and should be read with that table to provide understanding of the context. Cultural Property (Protection in Armed Conflict) Act 2012: section 36 distinctive emblem of the Convention for the Protection of Cultural Property in the Event of Armed Conflict. OIC SR 2013/192 2013-07-01 Flags, Emblems, and Names Protection Act 1981 This Act brought into force on 1 July 2013 by SR 2013/192.
47: Amendment to Mutual Assistance in Criminal Matters Act 1992
1: This section amends the Mutual Assistance in Criminal Matters Act 1992
2: The Schedule The following table is small in size and has 4 columns. This table is an amendment to the table in the Schedule of the Mutual Assistance in Criminal Matters Act 1992 and should be read with that table to provide understanding of the context. 31 The Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on 26 March 1999. An offence against the following section of the Cultural Property (Protection in Armed Conflict) Act 2012 section subject matter 7 Serious violations of the Second Protocol. OIC SR 2013/192 2013-07-01 Mutual Assistance in Criminal Matters Act 1992 This Act brought into force on 1 July 2013 by SR 2013/192.