Why Western Australia’s policy disaster is a lesson to Brussels

Why Western Australia’s policy disaster is a lesson to Brussels

The introduction of the new Aboriginal Cultural Heritage Act 2021 in Western Australia on July 1 has proved such a disaster that it has been scrapped after little more than a month.

Announcing the withdrawal, Premier Roger Cook said: “Put simply the laws went too far, were too prescriptive, too complicated and placed unnecessary burdens on everyday Western Australian property owners.”

As the Brisbane Times concluded: “It’s hard to think of a bigger lawmaking failure in recent political history than the WA government’s impending backflip on its Aboriginal Cultural Heritage Act.”

Why is this of interest to the world of antiquities? Because it deals with the same competing priorities that cause friction between commercial and personal interests on the one hand and heritage campaigners on the other, and because it shows what can happen when you tip the balance too far in one direction.

The news that the 2021 Act would be scrapped came after fears that the legislation, which undermined personal property rights for a huge section of business, farming and the public, in favour of the cultural heritage rights of indigenous peoples, might be extended across Australia.

One example of how enforcement of the law had an immediate and stifling impact was the cancellation of civic tree-planting ceremonies after an Aboriginal land corporation demanded $2.5 million to allow them to go ahead.

WA Premier Roger Cook had come under personal attack over the measures, which he refused to delay after complaints that the law was poorly written and its likely impact unclear.

He introduced the Aboriginal Cultural Heritage Act 2021 (ACH Act) after Rio Tinto destroyed sacred rock shelters at Juukan Gorge while searching for iron ore in May 2020, despite being warned of their significance earlier. Rio Tinto later apologised, and the CEO and other senior executives later resigned over the matter.

Redefining the meaning of Cultural Heritage

Section 18 of the original 1972 Aboriginal Heritage Act, which held sway until now, provided for land owners to proceed with activities that might be severely damaging to cultural heritage interests if granted permission by the government after a review.

The new act redefined the meaning of Aboriginal cultural heritage so that it was no longer limited to places and objects but also included cultural landscapes and intangible elements, although what they might be was uncertain.

It also replaced Section 18 with far tighter restrictions on property over 1,100 sqm, with permissions to be sought via Local Cultural Aboriginal Heritage Services (LCAHS), bodies that have yet to be fully established.

Effectively the Act gave Aboriginal bodies a direct and greater say – tantamount to a veto – over what landowners could do with their land through the oversight of a new Aboriginal Cultural Heritage Council (ACHC) to whom the LCAHS report.

The type of work covered could be as simple as putting up a new fence or updating irrigation works, as well as more complex projects.

Successful applications by landowners would be issued with an ACH permit, while those of greatest concern winning that approval also had to provide a management plan before going ahead.

Even when they had complied fully with all this at their own expense, landowners risked seeing their plans cast aside if new information arose concerning heritage aspects of the site.

New law “suffocates” private property rights

Those opposed to the early introduction of the law said its statutory guidelines, published at the end of May, were not clear.

Sky News political commentator Caroline Di Russo argued the new law was much worse, saying it “suffocates” private property rights of landowners, and adding that it is “the most disproportionate and overblown response imaginable”.

Red tape and ambiguity would plague farmers and industry as they tried to comply under the threat of prosecution and even jail, Russo said. Even where permission was eventually granted, it was unclear how long the drawn-out process would take.

Despite the extended definition of Aboriginal cultural heritage, Western Australia’s planning chief, Anthony Kannis, who had ultimate responsibility for overseeing the changes, was unable to define what would be covered when asked about this in a question-and-answer session with ABC News, saying “…if there is any doubt whatsoever about the advice you’re getting, there are opportunities to consult with us as a department and raise questions with us”.

One farmer whose family had farmed land in the region for over 50 years had deliberately preserved 1,000 hectares of forest country for decades, only to be told by Mr Kannis that a decision to clear it using fire in keeping with Aboriginal tradition was a possibility if the ACH ruled in its favour. “This is about giving Aboriginal people a say, and that shouldn’t be lost in all this discussion,” he countered.

In what the Financial Review dismissed as “farcical scenes”, at a forum hosted by the Association of Mining and Exploration Companies, “one mining executive asked government officials whether planting a tree near the Swan River in Perth would require a site inspection by traditional owners and the preparation of a heritage management plan.

“The officials replied it would depend on the size of the tree.”

The estimated cost of consulting what Mr Kannis described as “knowledge holders” ranged between AUS$80 and AUS$280 per hour (≠ £42/$55) (≠ £140/$150).

However, as the Financial Review also noted, “Junior exploration companies complained of being charged upwards of $200,000 for heritage surveys in the lead up to the new laws coming into force and said the rollout had been shambolic.”

Penalties for those in breach of the law included fines that started at AUS$20,000 for moving or selling ACH objects. An individual seriously harming ACH could be fined AUS$1m, while a corporation could be fined AUS$10m, with both also risking jail terms.

Concern led to scrapping of fines for initial period

Such was the concern over this amid confusion over how the law would be interpreted that Mr Cook scrapped fines for the first 12 months of enforcement while the legislation bedded down.

The WA government dismissed calls for a review, even after a petition launched by the Pastoralists and Graziers Association demanding a six-month delay raised 27,000 signatures.

Mr Cook ruled out any delay to the new regulations, despite the widespread concern, saying: “The laws are about a simpler, fairer, like-for-like transition of the current laws already in place.”

However, reality soon struck, with the impact on mining interests, as well as farming, seen as devastating. Support for the government plummeted.

Meanwhile, having secured a cultural hegemony via the new law, Aboriginal Heritage groups are now furious at the WA government change of heart.

In all, this was a textbook case in how not to address the valid concerns of indigenous groups as they fight to protect their culture. The WA government under Roger Cook dismissed the equally valid concerns of ordinary people in protecting fundamental human rights relating to property. In turn, this infringement blighted the economy in such a way that much of it risked grinding to a halt in weeks if not days. And that would have driven a deeper wedge between the competing interests of landowners and indigenous groups.

Add to all this the predictable risk of abuse of power by heritage groups handed almost unlimited say in what landowners could do, and the government had prepared the ground for toxic levels of corruption when it came to consultancy fees.

Now Mr Cook is being forced to re-adopt the 1972 law that he had argued was problematic. Having overseen this catastrophic and avoidable policy change, his credibility in seeking to resolve the issue any time soon is in tatters, and he will be doubtless focused now on shoring up support.

His arrogance in dismissing the loud and valid concerns of farmers and others as he declared the new law “simpler, fairer, like-for-like” won’t be forgotten any time soon.

WA disaster an object lesson for law makers

The WA disaster is an object lesson for law makers across the globe when it comes to balancing commercial and private interests with the demands of heritage groups. Effective policy means a nuanced approach that takes both into account, not throwing one side to the wolves in the hope of ingratiating yourself with the other.

Failure to strike this balance despite being obliged to do so by a clear policy directive does not augur well for the European Union’s import licensing regulation (2019/880) for cultural property, due to be enforced from June 2025. The damage to the international art market, including that of the EU itself, as well as the infringement of ordinary people’s rights, is likely to be widespread if that goes ahead – and Brussels has been alerted to this this often, but continues to ignore the warnings.

Too often laws are ushered through with barely a nod at genuine scrutiny of the concerns of all stakeholders. As the Brisbane Times concluded about the WA affair: “Had there been a robust parliamentary debate the practical issues that eventually emerged may have been ironed out before the laws came into effect on July 1.”

The European Commission would do well to look closely at what has just happened in Western Australia.

Italy rules in favour of private property rights for cultural heritage

Italy rules in favour of private property rights for cultural heritage

Ministry’s legal head reinforces ‘innocent until proven guilty’ principle in interpreting law

The Italian Ministry of Culture has issued a potentially ground-breaking statement, following a court ruling. It challenges current thinking on cultural heritage and patrimony and reinforces private property rights.

Essentially the statement addresses conflicting priorities between private property rights and the Italian state’s desire to protect its cultural heritage, and how this conflict addresses proof of ownership.

Recent years have seen a significant shift in attitudes among state authorities and law enforcement towards the idea of reversing the burden of proof regarding the legitimate ownership of antiquities and ancient coins. This is despite private property rights being enshrined in all fundamental clauses of international human rights conventions and in both common law and natural justice. Guilty until proved innocent has almost become the new normal.

Now, however, comes evidence of a fight back against this fundamentally undemocratic idea. This statement is one of them, and it has an additional welcome twist.

It arose after Italy’s Directorate-General of the Department of Archaeology, Fine Art and Landscape sought advice from the legal department on how to interpret Article 72 of the Cultural Property Act. As Coins Weekly notes: “This article governs the import of archaeological (numismatic) objects originally from Italy and demands extensive proof of origin.”

The legal department’s head, renowned professor of law Antonio Tarasco, came back with a surprising statement, acknowledging competing views. On the one hand, some lawyers argue that protecting Italian cultural heritage is a priority that renders significant objects as state property unless private ownership can be proved (reversal of the burden of proof); on the other are lawyers who argue that private ownership should take priority except in the most exceptional circumstances.

Law professor acknowledges Court of Cassation ruling as precedent

This dichotomy led the professor to look at the part documentation has played over the years in establishing ownership rights for coins in Italy. The first thing he noted was that as late as the 1980s, retaining proof of purchase was highly unusual. But he also noted that in 2009, his department insisted that “proper documentation issued by the countries of origin” was essential in establishing the lawful circulation of objects.

Importantly, this meant that any certification issued on import had to be renewed at the appropriate time or the Italian State might take possession of the item in question.

Fast forward to 2021, however, and Italy’s Court of Cassation – the highest appeal court which focuses only on how laws are interpreted – re-established the priority of private ownership without automatically having to provide supporting documentation (innocent until proven guilty).

Professor Tarasco points out that this meets the test of proportionality and reasonableness (just as the ADA has been arguing needs to happen with the EU import licensing regulation 2019/880). Of particular note is what Professor Tarasco has to say about this: “Forcing citizens (be they collectors or professional numismatists who buy abroad) to provide (almost fiendishly extensive) proof of the legitimate origin of the coins they buy, which must even date back to before 1909 [when Italy’s patrimony law was passed], is ultimately making it more difficult to buy – and therefore import into Italy – significant numismatic material that may one day enter public collections.”

The welcome twist Professor Tarasco adds at the end of his statement argues that making imports more difficult is actually damaging to Italian cultural heritage: “If we look closely, we can see that this approach – even if applied with good intentions – will not result in Italy protecting its national cultural property, but rather losing it.”

A fascinating statement from the head of the legal department of Italy’s Ministry of Culture, then. With all this in mind, how does Professor Tarasco view Italy’s application of Article 4 of the EU regulation 2019/880 from June 2025? It insists on the sort of “fiendishly extensive” documentation and evidence that effectively reverses the burden of proof in the way he decries here. And how does he feel about the Memorandum of Understanding Italy shares with the United States, which does exactly the same?

Professor Tarasco has highlighted the importance of proportionality and reasonableness here – qualities echoed in the European Commission President’s guiding principles for policy. If the Italian government’s leading legal authority on the issue, together with its highest court, acknowledges that private property rights have priority over what may be seen as the national interest in this way, how can it continue to move forward with either the new EU law or its MoU?

How will the EU’s new import licensing for art and antiques affect you? Here’s a brief guide

How will the EU’s new import licensing for art and antiques affect you? Here’s a brief guide

When the new import licensing regulation for cultural goods (2019/880) comes into force in the EU on June 28, 2025, what goods will be affected from the world of art and antiques?

According to the law, relevant items – all of which must have originated from outside the EU – will be split into two types: those that need a full import licence, and those that can be brought in on the basis of an importer statement.

What those items are is set out in a series of three tables in the Annex to the legislation, Parts A, B and C.

Any attempt to import an item covered by Part A will be prohibited if it is deemed to have been exported illegally from its country of origin, whenever that was.

Items included under Part B are more than 250 years old and seen as being at greater risk of looting and trafficking than those covered by Part C, and so are subject to tighter rules – in other words these are the pieces that need an import licence rather than an importer statement, and no minimum value threshold applies. This means that unless customs tell the importer otherwise, a licence will be required for every individual item, even where they might be identical, low-priced pieces imported together in large groups.

It should be remembered that being issued with an import licence conveys no ownership rights or proof of the item being legitimately acquired.

Applicants for a licence will have to demonstrate that the item in question was exported from the country where it was created or discovered in accordance with the laws and regulations of that country at the time (whenever that was – and it could be centuries ago).

Essential licences and certificates

If that country issued export licences or certificates at the time, the applicant must provide the relevant original licence or certificate (even though there has never been any requirement to keep them once used). Otherwise, they must show that no such laws and regulations existed at the time.

Because many of these items will have left those countries decades or more beforehand, that proof may no longer survive, if it was ever there in the first place. So, the law provides a third way of qualifying for a licence: evidence that the item in question has been exported in accordance with the laws and regulations of the last country where it was located for an unbroken period of more than five years.

There are further conditions to this option. Assuming you can prove that the item has spent an unbroken period of more than five years in a single country, you must also show that it wasn’t there for temporary use, or was just there in transit, for re-export or transhipment. You must also show that it was exported from the country where it was created or discovered before 24 April 1972 – when the 1970 UNESCO Convention on trafficking of cultural goods first came into effect.

One cause for customs rejecting the application will be if it has “reasonable grounds” to believe that the item’s original export from the source country was illicit. But the regulation does not say what “reasonable grounds” means in this context.

Items covered by Part C needing an importer statement are all individually valued at €18,000 or more per item and are more than 200 years old.

Financial Action Task Force Report’s anti trade approach rings alarm bells

Financial Action Task Force Report’s anti trade approach rings alarm bells

Just released, the Financial Action Task Force’s new report, Money Laundering and Terrorist Financing in the Art and Antiquities Market, takes a highly irresponsible approach.

The FATF is an independent global body investigating crime whose reports should prove key to policy making. Not this one, however.

Arguably the most salient conclusion it comes to is as follows: “The markets for art, antiquities and other cultural objects are diverse in size, business models and geographic reach. Most are relatively small, and the vast majority of participants have no connection to illicit activity.”

However, this is buried deep in the text, while the FATF has focused on launching the report with a headline grabbing video that gives the clear impression that the art market is awash with criminals committing offences linked to money laundering and terrorism financing.

Needless to say, anti-market forces have leapt on this to condemn the trade and demand further legal restraints, while ignoring the lack of substance in the report or the fact that rigorous anti-money laundering laws already apply in the UK, for instance.

As with so many other reports of this ilk, fact checking has been a casualty. The most important initial independent statistic the report quotes as it launches into its arguments is wrong. In paragraph 3 of the Introduction Background on page 5, it notes that the United Nations Office on Drugs and Crime (UNODC) “has estimated that in 2011, as much as USD 6.3 billion in illicit proceeds could have been laundered through or associated with the trade in cultural objects”. In fact, the figure, which was sourced from House of Commons Select Committee evidence in 2000 – now almost a quarter of a century ago – does nothing of the sort as CINOA’s Bogus Statistics report proves. FATF has simply taken UNODC’s word for it, thereby adding to the dissemination of fake news. This being the case, how reliable is the rest of the report?

The FATF’s work is important, so it is a shame that it, too, appears to have fallen into the trap of putting publicity before purpose in drawing attention to itself to justify its existence.

Further analysis of the report will follow.

Metal detectorist finds extraordinary tudor jewel

Judged to be the most important Tudor find for 25 years, the extraordinary discovery of a gold chain and pendant hit the news this month.

According to Artnet News, metal detectorist Charlie Clarke was searching on a friend’s property in Warwickshire, England, when he found the heart-shaped gold pendant attached to a gold chain.

Apart from its exceptional condition and workmanship, the elaborate piece carried the initials “H” and “K” to the reverse of the pendant – as it turned out they referred to Henry and Katherine. What he had unearthed was a jewel created to mark the marriage of Henry VIII to Katherine of Aragon, which lasted from 1509-33.

With the find reported under the Portable Antiquities Scheme, the British Museum dated the piece to around 1521. The front of the pendant is decorated with a Tudor rose, the emblem for the House of Tudor, entwined with a pomegranate bush, the badge of Katherine of Aragon; underneath, the legend “+ TOVS + IORS” offers a pun on toujours, the French word for “always”.

The “H” and “K” initials are inscribed in red and white enamel, in Lombardic script with decorative lacing common throughout the 16th century.

What cannot be determined is who commissioned the pendant, but its sheer quality means that it would have been someone of high standing, probably a courtier.

Trade bodies condemn UNESCO proposals to regulate art market

Led by CINOA, the international trade federation for art and antiques dealers, industry bodies across the world have reacted strongly to what they see as “very alarming” proposals from UNESCO to regulate the art market.

The proposals have been drafted by a panel of academics, civil servants and legal specialists from countries that have no sizeable art market themselves; they give the impression of having no serious idea of, or interest in, how the art market operates.

The outcome is predictably draconian, unrealistic and extreme, and if passed into law by States Parties to the 1970 UNESCO Convention on illicit trade would constitute an existential threat to much of the wider art market.

Published under the heading Draft Model Provisions on the Prevention and Fight against the Illicit Trafficking of Cultural Property, the proposals even attempt to redefine the meaning of the term ‘cultural property’ so that it has a far wider meaning that that set out in the Convention. This is an early indicator of how UNESCO appears to be sanctioning an upgrade of the Convention without going through the formal process of properly consulting States Parties on it.

It is not the whole set of provisions that cause a problem. In fact, as a whole, Provisions 1 to 13 set out useful proposals for dealing with the scourge of looting and trafficking linked to cultural property. Of particular note are Provisions 6 and 7, in which UNESCO finally targets States Parties over their obligations under Article 5 of the 1970 Convention to protect vulnerable sites from criminals.

Better methods of protection

“This is something that the art market has reiterated for many years,” says IADAA chairman Vincent Geerling, who has been very vocal on the point. “Fulfilling those obligations are the most effective actions in the fight against illicit trafficking and are long overdue, especially the establishment of digital inventories of protected cultural property (Provision 7) and should include the temporary warehousing at archaeological excavations. Photographing and recording archaeological finds before they are stored would provide a more effective means of reporting possible thefts quickly to INTERPOL (as obliged) for uploading onto their database, thereby making them unsaleable and thus preventing trafficking.”

It is when we arrive at provisions 14 to 18 that the trouble starts. These attempt to regulate the art market, something that has nothing to do with UNESCO and should be excised from the proposals.

Provision 15 proposes: “Only private individuals or legal entities, holders of a license issued by the competent authority, can exercise a professional activity directly or indirectly related to the art market.”

This astonishing power grab effectively imposes compulsory licensing on the global art market in a way that it would be impossible to comply with and which, if followed to the letter, would risk exposing art market operators to legal action from their clients.

It also constitutes a serious threat to human rights as, by default, it would remove the commercial value of countless items in private ownership around the world, as well as depriving their owners of the ability to dispose of them how they see fit.

As one art market lawyer responded: “This provision is highly unrealistic. It envisions that only licensed businesses will sell art; however, most countries do not have the capacity or will to create the necessary bureaucracy for such an endeavour. There is an expectation for these individuals to hold legal degrees and be experts in foreign law when such laws are often unavailable or are not consistently applied in practice. They are also expected to maintain a register of movements or transactions, but such record keeping is of little use unless it is maintained in a database, which again would require a major undertaking.”

Risking breach of trust among states parties

The enforcement of this set of proposals would effectively undermine the existing UNESCO Convention because it would supersede its powers and remit. This would constitute a catastrophic breach of trust of States Parties that had not expressly acceded to the changes as formal alterations to the Convention.

Several countries have already made it clear that they will not accede to these proposals. Australia has said it will not oblige dealers to maintain a register of cultural property and those they trade with; Belgium, France, Sweden and the UK do not accept the wider definition of cultural property; and the United States has reserved the right to determine whether or not impose export or import controls and does not accept that the Convention can be applied retroactively. These reservations alone, which include three of the world’s largest art markets, effectively make the proposals unworkable.

It is telling that not only was no member of the art market co-opted onto the panel of ‘experts’ and not one of them hails from a leading art market nation, but also that leading trade bodies such as CINOA were not directly informed or consulted on the matter – CINOA only learned about the proposals because it was tipped off by someone who found out about them.

Reactions from other leading figures and organisations in the market have been equally damning. The European Federation of Auctioneers points out that the industry is already subject to extensive legal restrictions, including over due diligence.

The draft provisions come at the same time as UNESCO is finalising its code of ethics for the art market, another set of rules that it wishes to impose on traders while ignoring the concerns they expressed during the consultation period.

Deeply flawed questionnaire

The questionnaire involved was also deeply flawed because it failed to consider different circumstances for trading artworks, while also assuming that all restitution claims were valid, when so many are not, and that any export not accompanied by a licence is illicit, when that is not the case.

CINOA has pointed out to UNESCO that its consultation over the code of ethics elicited a very poor response from States Parties (only 12%), with only 27 responses from across the entire art market, which it argues “cannot accurately represent the art trade”.

Although UNESCO’s policies are only advisory, many fear that they will be imposed, first by declaring the code of ethics obligatory, then by using that to force through the Model Provisions. While leading art market countries may not support the measures, active source countries like Mexico, who already operate extremist policies regarding cultural property, would be only too delighted with them.

The summary impression conveyed by the UNESCO proposals and the organisation’s approach to these matters is that they are driven by an extreme ideology that is prepared to trample human rights to achieve its ends rather than an honest desire to fight crime and protect the vulnerable. Coupled with numerous examples of breaches of trust – from the fraudulent advertising campaign The Real Price of Art to its continued promotion of bogus data about the art market – UNESCO’s expressed wish to work with the art market ring increasingly hollow.