LRW- Letter of Advice - Short exercise for the LRW component of the course. PDF

Preview

Summary

Short exercise for the LRW component of the course....

Description

Letter of Advice Dear Ms Peregio, Thank you for attending the consultation last week regarding the export of the artwork in issue. After careful review of current Australian law, international law and Hong Kong law, it is my professional opinion that you cannot take the artwork with you to Hong Kong. Australian Law In Australia, the export of cultural heritage is governed by the Protection of Movable Cultural Heritage Act (Cth) 1986 (“the Act”). According to section 7 of the Act, your artwork is within the definition of a “movable cultural heritage” as it is an object of importance to Australia for artistic reasons. The artwork falls under the category of Fine Art in section 7. Part 5 of the Protection of Movable Cultural Heritage Regulations 2018 sets out what falls within this category. We have confirmed with Graham Toomey that the painting is an acrylic painting. This is consistent with his new artworks found on his website which states the medium is Synthetic polymer paint, an umbrella term for acrylic. The artwork’s estimated current value of $375,000 exceeds the minimum threshold of $350,000. Further, the artwork is an Australia-related object as it made in or outside Australia by Graham Toomey who is an Indigenous Australian from the Wiradjuri and Wongaibon Nations of Western NSW. The artwork is at least 30 years old because it was produced in 1978 and thus satisfies clause 5.2(b)(ii). Therefore, the artwork is classified as a Class B object mentioned in Item 4 Oil and acrylic paintings of Clause 5.4. Class B classified objects may be given an export permit under section 8(2)(b) of the Act. However, we believe our application for a permit will be refused because there is a high chance of the Minister finding the object to be of such importance that its loss would significantly diminish the cultural heritage of Australia. As you have mentioned, Graham Toomey is an artist of increasing prominence and as you are aware the artwork is an important piece of cultural heritage. For these reasons, pursuant to section 10 (5)(b) of the Act, we believe taking this artwork to Hong Kong will diminish the cultural heritage of Australia. International Law The protection of cultural heritage is governed by the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Material. Australia is a party to the Convention after its acceptance on 30 October 1989. China also became a party after its acceptance on 28 November 1989. However, the Convention is not applicable to Hong Kong because it became part of China in 1997, after China’s acceptance. The artwork is within the definition of ‘cultural property’ in Article 1 as it is a property which on religious or secular grounds, is specifically designated by each State as being of importance for art. This category includes paintings produced entirely by hand on any support and in any material.

In Article 6, the Convention requires State Parties to introduce an appropriate certificate specifying that the export of the cultural property in question is authorised and prohibit the export of cultural property without the grant of a permit. This has been fulfilled by Australia and you will not be able to take your artwork to Hong Kong without a permit. Hong Kong Law Upon extensive research into Hong Kong law, it is my conclusion that they have no legislation on cultural property. Therefore, there are no restrictions in Hong Kong in bringing the artwork with you. Recommendations Whilst we note this artwork is the pride of your collection, I suggest you pass on this pride to a trusted family member or sell it. I have checked the online Movable Cultural Heritage Prohibited Exports Register and found that since 2013 similar paintings that were refused an export permit was sold to the National Gallery of Art or to an auction house for the sale of Important Aboriginal and Oceanic Art called Sotheby’s Australia. If you are not satisfied with the above suggestions, we may apply for an export grant, despite the high chance of it being refused. The Movable Cultural Heritage Prohibited Exports Register mentions objects that have been refused export permits twice. If you wish, we may even apply a second time after the first refusal. However please note the process can take many months which could delay your move to Hong Kong. Please note that according to section 9 (1) of the Protection of Movable Cultural Heritage Act (Cth) 1986, unlawful exports or even an attempt to do so will result in the forfeiture of the object. If you have any questions or would like us to assist you in any way, please don’t hesitate to call our office. Yours sincerely,...