Act No. 11 of 1986 as amended

This compilation was prepared on 3 March 2005

taking into account amendments up to Act No. 8 of 2005

The text of any of those amendments not in force

on that date is appended in the Notes section

The operation of amendments that have been incorporated may be

affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,

Attorney-General's Department, Canberra

Contents

Part I-Preliminary 1

1 Short title [see Note 1] 1

2 Commencement [see Note 1] 1

3 Interpretation 1

4 Act to bind Crown [see Note 2] 4

5 Application 4

6 Extension to Territories 4

6A Application of the Criminal Code 4

Part II-Control of Exports and Imports 5

Division 1-Exports 5

7 Movable cultural heritage of Australia 5

8 National Cultural Heritage Control List 5

9 Unlawful exports 6

10 Grant of permits in respect of particular objects 8

10A Grant of general permits for certain institutions 9

11 Permits 10

12 Certificates of exemption 10

13 Variation etc. of conditions and period of permit or

certificate 11

13A Address for service of notices 11

Division 2-Imports 12

14 Unlawful imports 12

Part III-Administration 14

15 National Cultural Heritage Committee 14

16 Functions of Committee 14

17 Constitution of Committee 14

18 Removal and resignation 16

19 Remuneration and allowances 16

20 Disclosure of interests 16

21 Meetings 17

21A Conduct of meetings 17

21B Certain resolutions may be made without meetings 18

22 Register of expert examiners 18

23 Expert examiners 19

24 Delegation 19

Part IV-National Cultural Heritage Account 20

25 Establishment of National Cultural Heritage Account

20

25A Credits to Account 20

25B Purpose of Account 20

26 Taxation 20

Part V-Enforcement of Act 21

27 Interpretation 21

28 Inspectors 21

29 Identity cards 22

30 Search warrants 22

31 Search warrants granted by telephone 24

32 Searches in emergencies 25

33 Powers of arrest 26

34 Seizure of protected objects 27

35 Power of retention 27

36 Notice of seizure 27

37 Court proceedings 29

38 Result of forfeiture 30

39 Production of permit 30

40 Proof of authority 31

41 Foreign country to request return of objects 31

43 Assistance of inspectors 31

46 Indictable offences 32

Part VI-Miscellaneous 33

47 Annual report 33

48 Administrative Appeals Tribunal 33

49 Regulations 33

Notes 35

An Act to protect Australia's heritage of movable cultural objects, to

support the protection by foreign countries of their heritage of movable

cultural objects, and for related purposes

Part I-Preliminary

1 Short title [see Note 1]

This Act may be cited as the Protection of Movable Cultural

Heritage Act 1986.

2 Commencement [see Note 1]

This Act shall come into operation on a day to be fixed by

Proclamation.

3 Interpretation

(1) In this Act, unless the contrary intention appears:

aircraft means a machine or apparatus that can derive support in

the atmosphere from the reactions of the air or from buoyancy.

appoint includes re-appoint.

Australia includes the external Territories other than Norfolk

Island.

Australian protected object means a Class A object or a Class B

object.

certificate means a certificate in force under section 12.

Chairperson means the Chairperson of the Committee.

Class A object means an object included in the class of Class A

objects in the Control List.

Class B object means an object included in the class of Class B

objects in the Control List.

coastal sea, in relation to Australia, means:

(a) the territorial sea of Australia; and

(b) the sea on the landward side of the territorial sea of

Australia.

Committee means the National Cultural Heritage Committee

established under section 15.

condition, in relation to a permit, means a condition to which the

permit is subject.

continental shelf has the same meaning as in the Seas and Submerged

Lands Act 1973.

Control List means the National Cultural Heritage Control List in

force under section 8.

expert examiner means a person whose name is in the register kept

under section 22.

export means export from Australia.

import means import into Australia.

inland waters of Australia includes all waters on the landward side

of the coastal sea of Australia.

inspector means a person who is an inspector by virtue of section

28.

member means a member of the Committee.

National Cultural Heritage Account means the Account established by

section 25.

permit means a permit in force under section 11.

principal collecting institution means:

(a) a public art gallery; or

(b) a public museum; or

(c) a public library; or

(d) public archives;

established under a law of the Commonwealth, a State or a

Territory.

protected object means an Australian protected object or a

protected object of a foreign country.

protected object of a foreign country means an object forming part

of the movable cultural heritage of a foreign country.

structure includes a platform fixed to the seabed or otherwise

operating in the sea.

territorial sea, in relation to Australia, has the same meaning as

it has for the purposes of the Seas and Submerged Lands Act 1973.

vessel means anything capable of carrying persons or goods through

or on water, and includes an air-cushion vehicle or similar craft.

(2) A power conferred on a person by this Act may be exercised in

the discretion of the person.

(3) A reference in this Act to an offence against a particular

provision of this Act, or against this Act, includes a reference to

an offence against:

(a) section 6 of the Crimes Act 1914; or

(b) an ancillary offence (within the meaning of the Criminal Code);

being an offence that relates to an offence against that provision

of this Act, or against this Act, as the case may be.

(3A) A reference in this Act to an offence against this Act includes

a reference to an offence against section 148.1, 148.2, 147.1 or

149.1 of the Criminal Code that relates to this Act.

(4) For the purposes of the application of this Act in relation to

a body corporate, but without prejudice to the liability of any

person other than the body corporate:

(a) a statement made, or document furnished, by a person acting on

behalf of the body corporate shall be deemed to be made or

furnished by the body corporate; and

(b) the knowledge of any person employed by, or concerned in the

management of, the body corporate shall be deemed to be

knowledge of the body corporate.

(5) A reference in this Act to the movable cultural heritage, in

relation to a foreign country, is a reference to objects that are

of importance to that country, or to a particular part of that

country, for:

(a) ethnological, archaeological, historical, literary, artistic,

scientific or technological reasons; or

(b) any other prescribed reasons.

(6) The provisions of this Act relating to the exportation or

importation of an object apply notwithstanding that the object may

have been brought into Australia from a country for the purpose of

transportation to another country or as part of the stores or

equipment of a vessel or aircraft.

4 Act to bind Crown [see Note 2]

This Act binds the Crown in right of the Commonwealth, of each

of the States, of the Northern Territory and of Norfolk Island.

5 Application

This Act applies both within and outside Australia.

6 Extension to Territories

This Act extends to every external Territory other than Norfolk

Island.

6A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against

this Act.

Note: Chapter 2 of the Criminal Code sets out the general

principles of criminal responsibility.

Part II-Control of Exports and Imports

Division 1-Exports

7 Movable cultural heritage of Australia

(1) A reference in section 8 to the movable cultural heritage of

Australia is a reference to objects that are of importance to

Australia, or to a particular part of Australia, for ethnological,

archaeological, historical, literary, artistic, scientific or

technological reasons, being objects falling within one or more of

the following categories:

(a) objects recovered from:

(i) the soil or inland waters of Australia;

(ii) the coastal sea of Australia or the waters above the

continental shelf of Australia; or

(iii) the seabed or subsoil beneath the sea or waters referred to in

subparagraph (ii);

(b) objects relating to members of the Aboriginal race of Australia

and descendants of the indigenous inhabitants of the Torres

Strait Islands;

(c) objects of ethnographic art or ethnography;

(d) military objects;

(e) objects of decorative art;

(f) objects of fine art;

(g) objects of scientific or technological interest;

(h) books, records, documents or photographs, graphic, film or

television material or sound recordings;

(j) any other prescribed categories.

(2) The generality of paragraph (1)(j) is not limited by any of the

other paragraphs of subsection (1).

8 National Cultural Heritage Control List

(1) Subject to subsection (2), the regulations shall prescribe a

list, to be known as the National Cultural Heritage Control List,

of categories of objects that constitute the movable cultural

heritage of Australia and are to be subject to export control.

(2) The Control List shall divide such objects into 2 classes,

namely:

(a) Class A objects, being objects that are not to be exported

otherwise than in accordance with a certificate; and

(b) Class B objects, being objects that are not to be exported

otherwise than in accordance with a permit or certificate.

(3) Subsection (2) does not prevent the division of Class A objects

and Class B objects into sub-classes and other divisions or

categories.

(4) Nothing in this section shall be taken to limit the application

of subsection 33(3A) of the Acts Interpretation Act 1901.

9 Unlawful exports

(1) Where a person exports an Australian protected object otherwise

than in accordance with a permit or certificate, the object is

forfeited.

(2) Where a person attempts to export an Australian protected

object otherwise than in accordance with a permit or certificate,

the object is liable to forfeiture.

(3) A person is guilty of an offence if:

(a) the person exports, or attempts to export, an object; and

(b) the object is an Australian protected object; and

(c) the person's conduct referred to in paragraph (a) is otherwise

than in accordance with a permit or certificate.

(3A) A person is guilty of an offence if:

(a) a permit or certificate relates to an Australian protected

object; and

(b) the person engages in conduct; and

(c) the conduct contravenes a condition of the permit or

certificate.

(3B) A person who is convicted of an offence against subsection (3)

or (3A) is punishable by:

(a) if the person is an individual-a fine not exceeding 1,000

penalty units or imprisonment for a period not exceeding

5 years, or both; or

(b) if the person is a body corporate-a fine not exceeding 2,000

penalty units.

Note: See subsection 46(4) for penalties that may be imposed by

a court of summary jurisdiction.

(4) For the purposes of this section, an object shall be taken to

be exported at the time when:

(a) the object has been placed on board a ship or aircraft at a

particular place in Australia with the intention that it be

taken out of Australia by that ship or aircraft and the

departure of the ship or aircraft from that place has

commenced; or

(b) the object has been delivered as a postal article into the

control of the Australian Postal Corporation at a particular

place in Australia with the intention that it be sent out of

Australia by post and the movement of the postal article from

that place has commenced.

(5) Without limiting the meaning of references in this section to a

person attempting to export an object, a person shall be taken to

attempt to export an object if the person conveys, or has

possession of, the object with intent to export it or knowing that

it is intended to be exported.

(6) For the purposes of this section, a person who exports or

attempts to export an Australian protected object shall be taken to

export, or attempt to export, the object otherwise than in

accordance with a permit or certificate unless, before exporting or

attempting to export the object, the person produces a permit or

certificate authorising the export:

(a) where the export is not from an external Territory to an

officer of Customs; or

(b) where the export is from an external Territory-to an inspector

performing duties in relation to the export of Australian

protected objects.

(7) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

10 Grant of permits in respect of particular objects

(1) A person may apply to the Minister for a permit to export a

Class B object.

(2) An application shall be made in writing in the prescribed form,

or, if no form is prescribed, the form approved by the Minister.

(3) On receipt of an application, the Minister shall refer it to

the Committee and the Committee shall refer it to one or more

expert examiners.

(4) The expert examiner or examiners shall submit to the Committee

a written report on the application, and the Committee shall

forward the report to the Minister together with the written

recommendations (if any) made by the Committee.

(5) The Minister shall consider the report and recommendations (if

any) and:

(a) grant a permit to export the Class B object concerned, subject

to such conditions (if any) as the Minister specifies; or

(b) refuse to grant a permit.

(6) In considering the application, an expert examiner, the

Committee and the Minister:

(a) shall have regard, among other things, to the reasons referred

to in subsection 7(1) that are relevant to the object to which

the application relates; and

(b) if satisfied that the object is of such importance to

Australia, or a part of Australia, for those reasons, that its

loss to Australia would significantly diminish the cultural

heritage of Australia-shall not recommend the grant of a

permit, or grant a permit, as the case may be, to export the

object permanently.

(7) If the Minister refuses to grant the permit, the Minister

shall, within the prescribed period after the decision is made,

cause to be served on the applicant notice in writing of the

refusal, setting out the reasons for the refusal.

10A Grant of general permits for certain institutions

(1) A principal collecting institution may apply to the Minister

for a permit to export a Class B object that is accessioned into

the collection for which the institution is responsible.

(2) If a principal collecting institution is not a body corporate,

the person responsible for the institution's operations may make an

application under subsection (1).

(3) An application is to be made in writing in the prescribed form,

or, if no form is prescribed, the form approved by the Minister.

(4) On receipt of an application, the Minister must refer it to the

Committee.

(5) The Committee must submit to the Minister a written report on

the application.

(6) The Minister must consider the report and:

(a) grant to the applicant a permit to export any Class B object

that is accessioned into the collection for which the

institution is responsible; or

(b) refuse to grant a permit.

(7) A permit is subject to:

(a) a condition that an exportation of a Class B object is not in

accordance with the permit unless it is exported on loan for

the purposes of research, public exhibition or a similar

purpose; and

(b) such other conditions (if any) as the Minister specifies in the

permit.

(8) If the Minister refuses to grant a permit, the Minister must,

within the prescribed period after the decision is made, cause to

be served on the applicant written notice of the refusal, setting

out the reasons for the refusal.

11 Permits

(1) A permit granted under section 10 or 10A shall be in writing in

the prescribed form, or if no form is prescribed, the form approved

by the Minister.

(2) A permit granted under section 10 or 10A comes into force on

the date on which it is granted and remains in force for an

indefinite period or for a period specified in the permit.

12 Certificates of exemption

(1) Where a person intends to import an Australian protected

object:

(a) for temporary purposes; or

(b) in circumstances in which the person may wish subsequently to

export the object;

the person may apply to the Minister for a certificate authorising

the exportation of the object.

(2) An application shall be made in writing in the prescribed form

or, if no form is prescribed, the form approved by the Minister.

(3) On receipt of an application, the Minister shall:

(a) grant a certificate, subject to such conditions (if any) as the

Minister specifies; or

(b) refuse to grant a certificate.

(4) A certificate shall be in writing in the prescribed form or, if

no form is prescribed, the form approved by the Minister.

(5) A certificate comes into force on the date on which it is

granted and remains in force for the period specified in the

certificate.

(6) If the Minister refuses to grant a certificate, the Minister

shall, within the prescribed period after the decision is made,

cause to be served on the applicant notice in writing of the

refusal, setting out the reasons for the refusal.

13 Variation etc. of conditions and period of permit or certificate

(1) At any time while a permit or certificate is in force, the

Minister may, by notice in writing served on the holder of the

permit or certificate:

(a) impose a condition to which the permit or certificate is to be

subject;

(b) vary or revoke a condition of the permit or certificate;

(c) vary the period of effect of the permit or certificate; or

(d) revoke the permit or certificate.

(2) A notice under subsection (1) takes effect when it is served on

the holder of the permit or certificate or on such later date (if

any) as is specified in the notice.

(3) The Minister shall not exercise a power under subsection (1) in

relation to a permit or certificate except upon an application by

the holder of the permit or certificate made in writing in the

prescribed form, or, if no form is prescribed, the form approved by

the Minister.

13A Address for service of notices

(1) A person applying for a permit under section 10 or 10A or a

certificate under section 12 must specify, as the person's address

for the purposes of this Part, an address in Australia.

(2) A person who has specified an address, under subsection (1) or

through a previous application of this subsection, may, at any

time, give to the Minister a written notice specifying, as the

person's address for the purposes of this Part, an address in

Australia that is different from the address last specified.

(3) The last address specified by a person under this section is

taken to be the person's place of residence or business for the

purpose of serving notices on the person under this Part.

Division 2-Imports

14 Unlawful imports

(1) Where:

(a) a protected object of a foreign country has been exported from

that country;

(b) the export was prohibited by a law of that country relating to

cultural property; and

(c) the object is imported;

the object is liable to forfeiture.

(2) Where a person imports an object, knowing that:

(a) the object is a protected object of a foreign country that has

been exported from that country; and

(b) the export was prohibited by a law of that country relating to

cultural property;

the person is guilty of an offence punishable, on conviction, by:

(a) if the person is a natural person-a fine not exceeding $100,000

or imprisonment for a period not exceeding 5 years, or both; or

(b) if the person is a body corporate-a fine not exceeding

$200,000.

(3) This section does not apply in relation to the importation of

an object if:

(a) the importation takes place under an agreement between:

(i) the Commonwealth, a State, a Territory, a principal collecting

institution or an exhibition co-ordinator; and

(ii) any other person or body (including a government); and

(b) the agreement provides for the object to be loaned, for a

period not exceeding 2 years, to the Commonwealth, State,

Territory, principal collecting institution or exhibition co-

ordinator, as the case may be, for the purpose of its public

exhibition within Australia.

(4) In subsection (3):

exhibition co-ordinator means a body that arranges for the

conducting in Australia of public exhibitions of objects from

collections outside Australia, and that achieves this by, from time

to time:

(a) entering into an agreement with a person or body (including a

government) for the importation of such objects on loan; and

(b) entering into an agreement with the Commonwealth, a State or a

Territory under which the Commonwealth, State or Territory

agrees to compensate the person or body referred to in

paragraph (a) for any loss of or damage to the objects arising

from, or connected with, the carrying out of the agreement

referred to in that paragraph or the public exhibition of the

objects in Australia.

Part III-Administration

15 National Cultural Heritage Committee

There shall be a committee, to be known as the National

Cultural Heritage Committee.

16 Functions of Committee

The functions of the Committee are:

(a) to furnish advice to the Minister, either of its own motion or

on request made to it by the Minister:

(i) in relation to the operation of this Act;

(ii) in relation to objects that should be included in, or removed

from, the Control List;

(iii) in relation to the classification and re-classification of

objects so included; and

(iv) in relation to the operation of the National Cultural Heritage

Account;

(b) to furnish advice to the Minister pursuant to subsections 10(4)

and 10A(5);

(c) to establish and maintain the register referred to in section

22; and

(d) to consult and co-operate with appropriate authorities of the

Commonwealth, of the States and of the Territories, and with

other organisations, associations and persons, on matters

related to its functions.

17 Constitution of Committee

(1) The Committee shall consist of:

(a) 4 persons, each of whom represents a different collecting

institution;

(b) a member of The Australian Vice-Chancellors' Committee;

(c) a nominee of the Minister for Aboriginal Affairs; and

(d) 4 persons having experience relevant to the cultural heritage

of Australia.

(1A) The member referred to in paragraph (1)(c) must be:

(a) a person of the Aboriginal race of Australia; or

(b) a descendant of an indigenous inhabitant of the Torres Strait

Islands.

(2) A member of the Committee:

(a) shall be appointed by the Minister;

(b) holds office on a part-time basis;

(c) holds office for such period, not exceeding 4 years, as is

specified in the instrument of appointment; and

(d) is eligible for re-appointment.

(3) The Minister shall designate, in writing, one of the members to

be the Chairperson.

(4) The Chairperson may be referred to as the Chairman or the

Chairwoman.

(5) The exercise of a power or the performance of a function by the

Committee is not invalidated by reason only that:

(a) there is a vacancy for a period of not more than 3 months in an

office of a member referred to in paragraph (1)(b) or (c); or

(b) the number of members referred to in paragraph (1)(a) or (d)

falls below 4 for a period of not more than 3 months.

(6) For the purposes of this section, a person shall be taken to

represent a collecting institution if the person holds a senior

position in connection with the collecting functions of that

institution.

(7) In this section, collecting institution means:

(a) a public art gallery;

(b) a public museum;

(c) a public library; or

(d) public archives.

18 Removal and resignation

(1) The Minister may terminate the appointment of a member for

misbehaviour or physical or mental incapacity.

(2) The Minister may terminate the appointment of a member referred

to in paragraph 17(1)(c) on the request of the Minister for

Aboriginal Affairs.

(3) If a member fails, without reasonable excuse, to comply with

section 20, the Minister shall terminate the appointment of the

member.

(4) A member may resign the office of member by writing signed by

the member and delivered to the Minister.

19 Remuneration and allowances

(1) A member shall be paid such remuneration as is determined by

the Remuneration Tribunal.

(2) A member shall be paid such allowances as are prescribed.

(3) Subsections (1) and (2) have effect subject to the Remuneration

Tribunal Act 1973.

20 Disclosure of interests

(1) A member who has a direct or indirect pecuniary interest in a

matter being considered or about to be considered by the Committee

shall, as soon as possible after the relevant facts have come to

the knowledge of the member, disclose the nature of the interest at

a meeting of the Committee.

(2) A disclosure under subsection (1) shall be recorded in the

minutes of the meeting of the Committee and the member shall not,

unless the Minister or the Committee otherwise determines:

(a) be present during any deliberation of the Committee with

respect to that matter; or

(b) take part in any decision of the Committee with respect to that

matter.

(3) For the purpose of the making of a determination by the

Committee under subsection (2) in relation to a member who has made

a disclosure under subsection (1), a member who has a direct or

indirect pecuniary interest in the matter to which the disclosure

relates shall not:

(a) be present during any deliberation of the Committee for the

purpose of making the determination; or

(b) take part in the making by the Committee of the determination.

21 Meetings

(1) Meetings of the Committee shall be held at such times and

places as the Committee from time to time determines.

(2) The Chairperson may at any time convene a meeting.

(3) At a meeting, 5 members constitute a quorum.

(4) Subject to subsection (5), the Chairperson shall preside at all

meetings.

(5) If the Chairperson is absent from a meeting, the members

present shall elect one of their number to preside at the meeting.

(6) Questions arising at a meeting shall be determined by a

majority of the members present and voting.

(7) The member presiding at a meeting has a deliberative vote and,

in the event of an equality of votes, also has a casting vote.

21A Conduct of meetings

(1) The Committee may regulate the conduct of proceedings at its

meetings as it considers appropriate.

(2) Without limiting subsection (1), the Committee may permit

members to participate in, and form part of the quorum at, a

particular meeting, or at all meetings, of the Committee by any of

the following methods of communication:

(a) telephone;

(b) closed-circuit television;

(c) any other method of communication determined by the Committee.

(3) A member who is permitted to participate in a meeting under

subsection (2) is regarded as being present at that meeting.

21B Certain resolutions may be made without meetings

(1) If all the members of the Committee (other than any member to

whom subsection (3) applies) sign a document containing a statement

that they support a recommendation or report made, in the terms set

out in the document, in relation to an application made under

section 10 or 10A, a recommendation or report in those terms is

taken to have been adopted by a duly constituted meeting of the

Committee held on the day the document was signed, or if the

members sign the document on different days, on the last of those

days.

(2) For the purposes of subsection (1), 2 or more separate

documents containing statements in identical terms, each of which

is signed by one or more members, are together taken to constitute

one document containing a statement in those terms signed by those

members on the respective days on which they signed the separate

documents.

(3) A member must not sign a document containing a statement in

favour of the recommendation or report if it is in respect of a

matter in which the member would, for the purposes of section 20,

be taken to have a direct or indirect pecuniary interest.

(4) This section does not apply to a document that less than 5

members of the Committee are eligible to sign.

22 Register of expert examiners

(1) The Committee shall, in accordance with the regulations,

maintain a register of the names of persons determined by the

Committee to be expert examiners for the purposes of this Act.

(2) In subsection (1), person includes:

(a) a body or association of persons, whether incorporated or not;

and

(b) a person resident or domiciled outside Australia.

23 Expert examiners

It is the function of an expert examiner to give advice to the

Committee on a matter referred by the Committee.

24 Delegation

(1) The Minister may, either generally or as otherwise provided by

the instrument of delegation, by instrument in writing, delegate

to:

(a) the person holding or performing the duties of the office of

Secretary to the Department; or

(b) an SES employee, or acting SES employee, in the Department;

all or any of the Minister's powers under this Act, other than this

power of delegation or a power conferred by section 17 or 18,

subsection 28(3), (4) or (5) or section 38 or 47.

(2) A power so delegated, when exercised by the delegate, shall,

for the purposes of this Act, be deemed to have been exercised by

the Minister.

(3) A delegation under this section does not prevent the exercise

of a power by the Minister.

Part IV-National Cultural Heritage Account

25 Establishment of National Cultural Heritage Account

(1) There is hereby established the National Cultural Heritage

Account.

(2) The Account is a Special Account for the purposes of the

Financial Management and Accountability Act 1997.

25A Credits to Account

(2) There must be credited to the National Cultural Heritage

Account:

(a) amounts equal to all money received from a State or Territory,

or from an authority of a State or Territory, for the purposes

of the Account; and

(b) amounts equal to all money received, whether by way of gift,

bequest or otherwise, for the purposes of the Account; and

(c) if amounts are debited from the Account for the purpose of

investment-amounts equal to the interest generated by the

investment.

Note: An Appropriation Act provides for amounts to be credited

to a Special Account if any of the purposes of the Account

is a purpose that is covered by an item in the Appropriation

Act.

25B Purpose of Account

Amounts standing to the credit of the National Cultural

Heritage Account may be expended for the purpose of facilitating

the acquisition of Australian protected objects for display or safe-

keeping.

26 Taxation

The income and transactions of the National Cultural Heritage

Account are not subject to taxation under any law of the

Commonwealth or of a State or Territory.

Part V-Enforcement of Act

27 Interpretation

(1) In this Part (except sections 35, 36, 37 and 38), forfeited

includes liable to forfeiture.

(2) Where, at a particular time, an object is delivered by a

Customs officer to an inspector under section 203A of the Customs

Act 1901 or voluntarily surrendered to an inspector by the owner or

person having possession, custody or control of the object, the

object shall, for the purposes of this Part, be taken to be seized

under this Act by the inspector at that time.

28 Inspectors

(1) The Minister may, by instrument in writing, appoint a person as

an inspector.

(2) By force of this subsection:

(a) a member or special member of the Australian Federal Police;

and

(b) a member of a police force of a State or Territory;

is an inspector.

(3) The Minister may make an arrangement with a Minister of a State

for and in relation to the exercise of powers, and the performance

of duties, of inspectors under this Act by officers of the State.

(4) An arrangement may contain such incidental or supplementary

provisions as the Minister and the Minister of the State think

necessary.

(5) The Minister may arrange with the Minister of a State with whom

an arrangement is in force for the variation or revocation of the

arrangement.

(6) An arrangement, or the variation or revocation of an

arrangement, shall be in writing and a copy of each instrument by

which an arrangement has been made, varied or revoked shall be

published in the Gazette.

29 Identity cards

(1) The Minister may cause to be issued to an inspector, other than

a member of a police force, an identity card in a form approved by

the Minister by instrument in writing.

(2) A person who ceases to be an inspector shall forthwith return

his or her identity card to the Minister.

(3) A person who contravenes subsection (2) is guilty of an offence

punishable on conviction by a fine not exceeding $100.

(4) Subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal

Code.

30 Search warrants

(1) Where an information on oath is laid before a Magistrate

alleging that there are reasonable grounds for suspecting that

there may be, at that time or within the next following 24 hours,

upon any land or upon or in any premises, structure, vessel,

aircraft or vehicle, a thing or things of a particular kind that is

or are forfeited or connected with a particular offence against

this Act, and the information sets out those grounds, the

Magistrate may issue a search warrant authorising an inspector

named in the warrant, with such assistance as he or she thinks

necessary and if necessary by force:

(a) to enter upon the land or upon or into the premises, structure,

vessel, aircraft or vehicle;

(b) to search the land, premises, structure, vessel, aircraft or

vehicle for things of that kind; and

(c) to seize any thing of that kind found there that he or she

believes on reasonable grounds to be forfeited or connected

with that offence.

(2) A Magistrate shall not issue a warrant under subsection (1)

unless:

(a) the informant or some other person has given to the Magistrate,

either orally or by affidavit, such further information (if

any) as the Magistrate requires concerning the grounds on which

the issue of the warrant is being sought; and

(b) the Magistrate is satisfied that there are reasonable grounds

for issuing the warrant.

(3) There shall be stated in a warrant issued under this section:

(a) a statement of the purpose for which the warrant is issued,

which shall include a reference to the nature of the forfeited

thing or things, or the offence, in relation to which the entry

and search are authorised;

(b) whether entry is authorised to be made at any time of the day

or night or during specified hours of the day or night;

(c) a description of the kind of things authorised to be seized;

and

(d) a date, not being later than one month after the date of issue

of the warrant, upon which the warrant ceases to have effect.

(4) If, in the course of searching, in accordance with a warrant

issued under this section, for things that are forfeited or

connected with a particular offence, being things of a kind

specified in the warrant, an inspector finds any thing that he or

she believes on reasonable grounds to be forfeited or connected

with the offence, although not of a kind specified in the warrant,

or to be connected with another offence against this Act, and he or

she believes on reasonable grounds that there is a compelling need

for the immediate seizure of the thing in order to prevent its

exportation, importation, concealment, loss or destruction, or its

use in committing, continuing or repeating the offence or in

committing the other offence, the inspector may seize that thing.

(5) For the purposes of this section, a thing is connected with a

particular offence if it is:

(a) a thing in respect of which the offence was committed;

(b) a thing that will afford evidence of the offence; or

(c) a thing that was used, or is intended to be used, for the

purpose of the offence.

(6) A reference in this section to an offence includes a reference

to an offence that there are reasonable grounds for believing has

been, or will be, committed.

31 Search warrants granted by telephone

(1) Where, by reason of circumstances of urgency, an inspector

considers it necessary to do so, the inspector may make application

for a search warrant to a Magistrate, by telephone, in accordance

with this section.

(2) Before so making application, an inspector shall prepare an

information of a kind referred to in subsection 30(1) that sets out

the grounds on which the issue of the warrant is being sought, but

may, if it is necessary to do so, make the application before the

information has been sworn.

(3) Where a Magistrate is, upon application made under subsection

(1), satisfied:

(a) after having considered the terms of the information prepared

in accordance with subsection (1); and

(b) after having received such further information (if any) as the

Magistrate requires concerning the grounds on which the issue

of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the

Magistrate shall complete and sign such a search warrant as the

Magistrate would issue under section 30 if the application had been

made to the Magistrate in accordance with that section.

(4) Where a Magistrate signs a warrant under subsection (3):

(a) the Magistrate shall inform the inspector of the terms of the

warrant and the date on which and the time at which it was

signed, and record on the warrant the reasons for granting the

warrant; and

(b) the inspector shall complete a form of warrant in the terms

furnished by the Magistrate and write on it the name of the

Magistrate and the date on which and the time at which the

warrant was signed.

(5) Where an inspector completes a form of warrant in accordance

with subsection (4), the inspector shall, not later than the day

next following the date of expiry of the warrant, forward to the

Magistrate who signed the warrant the form of warrant completed by

the inspector and the information duly sworn in connection with the

warrant.

(6) Upon receipt of the documents referred to in subsection (5),

the Magistrate shall attach to them the warrant signed by the

Magistrate and deal with the documents in the manner in which the

Magistrate would have dealt with the information if the application

for the warrant had been made in accordance with section 30.

(7) A form of warrant duly completed by an inspector in accordance

with subsection (4) is, if it is in accordance with the terms of

the warrant signed by the Magistrate, authority for any search,

entry or seizure that the warrant so signed authorises.

(8) Where it is material, in any proceedings, for a court to be

satisfied that a search, entry or seizure was authorised in

accordance with this section, and the warrant signed by a

Magistrate in accordance with this section authorising the search,

entry or seizure is not produced in evidence, the court shall

assume, unless the contrary is proved, that the search, entry or

seizure was not authorised by such a warrant.

32 Searches in emergencies

(1) An inspector may:

(a) search a person, or the clothing that is being worn by, and

property in the immediate control of, a person, suspected by

the inspector to be carrying any thing that is forfeited or

connected with an offence against this Act; or

(b) enter upon any land, or upon or into any premises, structure,

vessel, aircraft or vehicle, on or in which the inspector

believes on reasonable grounds that any thing forfeited or

connected with an offence against this Act is situated;

and may seize any such thing found in the course of that search, or

upon the land or in the premises, structure, vessel, aircraft or

vehicle, as the case may be, if:

(c) the inspector believes on reasonable grounds that it is

necessary to do so in order to prevent the exportation or

importation of that thing or the concealment, loss or

destruction of any thing forfeited or connected with an offence

against this Act; and

(d) the search or entry is made in circumstances of such

seriousness and urgency as to require and justify immediate

search or entry without the authority or an order of a court or

of a warrant issued under this Act.

(2) An inspector may stop a person, vessel, aircraft or vehicle for

the purposes of subsection (1).

(3) Subsections 30(5) and (6) apply in relation to this section as

they apply in relation to section 30.

33 Powers of arrest

(1) An inspector may, without warrant, arrest any person if the

inspector believes on reasonable grounds:

(a) that the person is committing or has committed an offence

against this Act; and

(b) that proceedings against the person by summons would not be

effective.

(2) Where a person is arrested under subsection (1), an inspector

shall forthwith bring the person, or cause the person to be

brought, before a Magistrate or other proper authority to be dealt

with in accordance with law.

(3) Without limiting the generality of the meaning of any

expression in subsection (1), where:

(a) an inspector requests a person whom the inspector finds

committing, or whom the inspector believes on reasonable

grounds to have committed, an offence against this Act, being a

person whose full name or usual place of residence are unknown

to the inspector, to state his or her full name or usual place

of residence, as the case may be; and

(b) the person:

(i) refuses or fails to comply with the request; or

(ii) whether or not in compliance, or purported compliance, with the

request, states as his or her full name or usual place of

residence a name or a place, as the case may be, that the

inspector believes on reasonable grounds to be false or

misleading in a material particular;

the inspector shall be taken, for the purposes of paragraph (1)(b),

to have reasonable grounds for believing that proceedings against

the person by summons in respect of the offence will not be

effective.

(4) Nothing in this section prevents the arrest of a person in

accordance with any other law.

34 Seizure of protected objects

An inspector may seize a protected object that the inspector

believes on reasonable grounds to be forfeited.

35 Power of retention

(1) A thing seized under this Act may be retained:

(a) in the case of a protected object seized on the grounds that it

is forfeited by virtue of subsection 9(1)-until a court orders

the return of the object or the object is disposed of under

section 38;

(b) in the case of any other protected object-until a court orders

the return of the object or the object is forfeited; or

(c) in the case of any other thing-until the end of the period of

60 days after the seizure or, if proceedings involving the

thing are instituted within that period, until those

proceedings (including any appeal to a court in relation to

those proceedings) are terminated.

(2) The Minister may, by instrument in writing, authorise any thing

seized under this Act (other than a protected object that is

forfeited) to be released to the owner, or the person who had the

possession, custody or control of the thing immediately before it

was seized, and thereupon sections 36 and 37 do not apply, or cease

to apply, as the case requires, in relation to the thing.

36 Notice of seizure

(1) In this section, appropriate person means the Minister or a

person designated by the Minister in writing for the purposes of

this section.

(2) Subject to this section, as soon as practicable after a

protected object has been seized by an inspector under this Act,

the inspector shall serve on the owner, or the person who had the

possession, custody or control of the object immediately before it

was seized, a notice in writing:

(a) identifying the object and the date of the seizure;

(b) setting out the reasons for the seizure;

(c) setting out the terms of the provisions of subsection 37(1);

and

(d) where subsection (5) applies-setting out the terms of the

provisions of that subsection and specifying, and setting out

the address of, an appropriate person and stating that any

notice under that subsection is to be given to that person.

(3) An inspector is not required to serve a notice under subsection

(2) if, after making such inquiries as the inspector thinks

appropriate, the inspector does not have sufficient information to

do so.

(4) Where:

(a) a notice under subsection (2) has not been served in respect of

an object seized by an inspector under this Act; and

(b) within 30 days after the day on which the object was seized, a

person who claims to be a person entitled to be served with

such a notice gives an appropriate person sufficient

information, in writing, to enable the notice to be served;

the appropriate person shall forthwith convey that information to

the inspector.

(5) Where a protected object has been seized on the grounds that it

is liable to forfeiture by virtue of subsection 9(2) or 14(1) and a

notice under subsection (2) is served in respect of the object, the

object is forfeited unless, within 30 days after the service of the

notice, the owner, or the person who had possession, custody or

control of the object immediately before it was seized:

(a) gives notice, in writing, to the appropriate person specified

in the notice under subsection (2) claiming the object; or

(b) brings an action for recovery of the object.

(6) Where, at the end of the period of 30 days after the day on

which a protected object was seized under this Act:

(a) a notice has not been served in respect of the object under

subsection (2); and

(b) a person claiming to be a person entitled to be served with

such a notice has not given an appropriate person sufficient

information to enable the notice to be served;

the object is forfeited.

(7) Where notice is given under subsection (5) to the appropriate

person, the appropriate person shall serve on the person who gave

the notice a notice, in writing, setting out the terms of the

provisions of subsection (8).

(8) Where:

(a) a notice is given to a person under subsection (7) in relation

to an object; and

(b) the person does not, within 4 months after the service of the

notice, bring an action for recovery of the object;

the object is forfeited.

37 Court proceedings

(1) Where:

(a) a protected object has been seized under this Act; and

(b) the object is not forfeited by section 36 or by or under this

section;

the owner, or the person who had the possession, custody or control

of the object immediately before it was seized, may bring an action

against the Commonwealth in a court of competent jurisdiction for

the recovery of the object on the ground that the object is not

forfeited or liable to be forfeited.

(2) Where:

(a) a protected object has been seized on the grounds that it is

liable to forfeiture by virtue of subsection 9(2) or 14(1);

(b) a person brings an action for recovery of the object; and

(c) the person discontinues the action;

the object is forfeited.

(3) Where an action is brought for recovery of a protected object,

the court shall determine, on a balance of probabilities, whether:

(a) the object is forfeited by virtue of subsection 9(1); or

(b) the object is liable to forfeiture by virtue of subsection 9(2)

or 14(1);

and the court:

(c) where paragraph (a) applies-shall reject the claim for

recovery;

(d) where paragraph (b) applies-shall order that the object is

forfeited; or

(e) in any other case-may order the return of the object.

(4) Where a person is convicted of attempting to export a protected

object in contravention of subsection 9(3) or of an offence against

subsection 14(2) in relation to a protected object, the court shall

order that the object is forfeited.

38 Result of forfeiture

Where a protected object is forfeited by or under this Act:

(a) all title and interest in the object is vested in the

Commonwealth without further proceedings;

(b) the object shall be dealt with and disposed of in accordance

with the directions of the Minister; and

(c) any costs incurred by the Commonwealth in transporting or

disposing of the object are a debt due to the Commonwealth by

the person who was the owner of the object immediately before

it was forfeited and may be recovered by the Commonwealth in a

court of competent jurisdiction.

39 Production of permit

(1) An inspector may require any person whom the inspector suspects

on reasonable grounds of intending to export, of exporting, or of

having exported, an Australian protected object to produce a permit

or certificate authorising the export or to produce evidence of the

existence and contents of such a permit or certificate.

(2) A person who fails to comply with a requirement made under

subsection (1) is guilty of an offence punishable on conviction by

a fine not exceeding $1,000.

(3) Subsection (2) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the

matter in subsection (3) (see subsection 13.3(3) of the

Criminal Code).

(4) Subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal

Code.

40 Proof of authority

An inspector (other than a member of a police force who is in

uniform) is not entitled to exercise any powers under section 32,

33, 34, 39 or 43 in relation to a person unless:

(a) if the inspector is a member of a police force-the inspector

produces, for inspection by the person, written evidence of the

fact that the inspector is a member of that police force; or

(b) in any other case-the inspector produces his or her identity

card for inspection by the person.

41 Foreign country to request return of objects

(1) A power conferred by this Part shall not be exercised by an

inspector in relation to a protected object of a foreign country

unless the inspector believes on reasonable grounds that the

Commonwealth has received from the Government of the country a

request for the return of the object.

(2) Proceedings for a contravention of section 14 in relation to a

protected object of a foreign country shall not be instituted

unless the Commonwealth has received from the Government of the

country a request for the return of the object.

(3) In any proceedings, the mere production of a document

purporting to be signed by the Secretary to the Department and

stating that the Commonwealth has received a request from the

Government of a specified foreign country for the return of a

specified protected object is prima facie evidence of the facts

stated.

43 Assistance of inspectors

An inspector exercising or proposing to exercise powers

pursuant to this Part in relation to property, being any premises,

structure, vessel, aircraft or vehicle, may require the owner or

person in charge of the property to provide reasonable assistance

to the inspector in the exercise of those powers in relation to the

property, and the person shall comply with the request.

Penalty: $2,000 or imprisonment for 12 months, or both.

46 Indictable offences

(1) An offence against subsection 9(3), 9(3A) or 14(2) is an

indictable offence.

(2) An offence against section 43 is punishable on summary

conviction.

(3) Notwithstanding that an offence referred to in subsection (1)

is an indictable offence, a court of summary jurisdiction may hear

and determine proceedings in respect of the offence if the court is

satisfied that it is proper to do so and the defendant and the

prosecutor consent.

(4) If, in accordance with subsection (3), a court of summary

jurisdiction convicts a person of an offence referred to in

subsection (1), the penalty that the court may impose is:

(a) if the person is an individual-a fine not exceeding 50 penalty

units or imprisonment for a period not exceeding 2 years, or

both; or

(b) if the person is a body corporate-a fine not exceeding 200

penalty units.

Part VI-Miscellaneous

47 Annual report

(1) The Minister shall, as soon as practicable after 30 June in

each year, cause to be prepared a report on the working of this Act

during the year that ended on that 30 June.

(2) The Minister must cause a copy of the report to be laid before

each House of the Parliament within 15 sitting days of that House

after the Minister receives it.

48 Administrative Appeals Tribunal

(1) Application may be made to the Administrative Appeals Tribunal

for review of:

(a) a decision by the Minister to refuse to grant a permit or

certificate;

(b) a decision by the Minister to impose a condition under

paragraph 10(5)(a), 10A(7)(b) or 12(3)(a); or

(c) a decision by the Minister under subsection 11(2), 12(5) or

13(1).

(2) Where a person is notified of a decision referred to in

subsection (1), the Minister shall cause to be served on the person

a notice stating that, subject to the Administrative Appeals

Tribunal Act 1975, application may be made to the Administrative

Appeals Tribunal for review of the decision.

(3) A failure to comply with subsection (2) in relation to a

decision does not affect the validity of the decision.

49 Regulations

The Governor-General may make regulations, not inconsistent

with this Act, prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Notes to the Protection of Movable Cultural Heritage Act 1986

Note 1

The Protection of Movable Cultural Heritage Act 1986 as shown in this

compilation comprises Act No. 11, 1986 amended as indicated in the Tables

below.

For all relevant information pertaining to application, saving or

transitional provisions see Table A.

The Protection of Movable Cultural Heritage Act 1986 was modified by the

A.C.T. Self-Government (Consequential Provisions) Regulations (as amended)

see Table B.

(a) The Protection of Movable Cultural Heritage Act 1986 was amended by

Part 7 (sections

14-23) only of the Arts, Environment, Tourism and Territories

Legislation Amendment Act 1990, subsection 2(1) of which provides as

follows:

(1) Parts 1, 4, 5, 6, 7 and 8 commence on the day on which this Act

receives the Royal Assent.

(b) The Protection of Movable Cultural Heritage Act 1986 was amended by

Schedule 4 (item 123) only of the Statute Law Revision Act 1996,

subsection 2(1) of which provides as follows:

(1) Subject to subsections (2) and (3), this Act commences on the

day on which it receives the Royal Assent.

(c) The Protection of Movable Cultural Heritage Act 1986 was amended by

Schedule 1 (item 752) only of the Public Employment (Consequential and

Transitional) Amendment Act 1999, subsections 2(1) and (2) of which

provide as follows:

(1) In this Act, commencing time means the time when the Public

Service Act 1999 commences.

(2) Subject to this section, this Act commences at the commencing

time.

(e) The Protection of Movable Cultural Heritage Act 1986 was amended by

Schedule 1 (items 40-49) only of the Communications and the Arts

Legislation Amendment (Application of Criminal Code) Act 2001,

subsection 2(1)(a) of which provides as follows:

(1) Subject to this section, this Act commences at the latest of

the following times:

(a) immediately after the commencement of item 15 of Schedule 1 to

the Criminal Code Amendment (Theft, Fraud, Bribery and Related

Offences) Act 2000;

Item 15 commenced on 24 May 2001.

Application, saving or transitional provisions

Protection of Movable Cultural Heritage Amendment Act 1999 (No. 101, 1999)

Schedule 1

9 Application of items 7 and 8

Whether this Act commences on 1 July 1999 or on a later date, the

amendments of the Protection of Movable Cultural Heritage Act 1986

made by items 7 and 8 apply in relation to the financial year

commencing on 1 July 1999 and each subsequent financial year.

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences)

Act 2000 (No. 137, 2000)

Schedule 2

418 Transitional-pre-commencement offences

(1) Despite the amendment or repeal of a provision by this Schedule, that

provision continues to apply, after the commencement of this item, in

relation to:

(a) an offence committed before the commencement of this item; or

(b) proceedings for an offence alleged to have been committed

before the commencement of this item; or

(c) any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2) Subitem (1) does not limit the operation of section 8 of the Acts

Interpretation Act 1901.

419 Transitional-pre-commencement notices

If:

(a) a provision in force immediately before the commencement of

this item required that a notice set out the effect of one or

more other provisions; and

(b) any or all of those other provisions are repealed by this

Schedule; and

(c) the first-mentioned provision is amended by this Schedule;

the amendment of the first-mentioned provision by this Schedule does

not affect the validity of such a notice that was given before the

commencement of this item.

Communications and the Arts Legislation Amendment (Application of Criminal

Code) Act 2001 (No. 5, 2001)

4 Application of amendments

(1) Each amendment made by this Act applies to acts and omissions

that take place after the amendment commences.

(2) For the purposes of this section, if an act or omission is

alleged to have taken place between 2 dates, one before and one on

or after the day on which a particular amendment commences, the act

or omission is alleged to have taken place before the amendment

commences.

Financial Framework Legislation Amendment Act 2005 (No. 8, 2005)

4 Saving of matters in Part 2 of Schedule 1

(1) If:

(a) a decision or action is taken or another thing is made, given

or done; and

(b) the thing is taken, made, given or done under a provision of a

Part 2 Act that had effect immediately before the commencement

of this Act;

then the thing has the corresponding effect, for the purposes of

the Part 2 Act as amended by this Act, as if it had been taken,

made, given or done under the Part 2 Act as so amended.

(2) In this section:

Part 2 Act means an Act that is amended by an item in Part 2 of

Schedule 1.

Schedule 1

496 Saving provision-Finance Minister's determinations

If a determination under subsection 20(1) of the Financial Management

and Accountability Act 1997 is in force immediately before the

commencement of this item, the determination continues in force as if

it were made under subsection 20(1) of that Act as amended by this

Act.

Table B

Modifications

A.C.T. Self-Government (Consequential Provisions) Regulations

Section 4-The Protection of Movable Cultural Heritage Act 1986 was modified

by regulation 2 and Schedule 1 of the A.C.T. Self-Government (Consequential

Provisions) Regulations as amended. The modification of Schedule 1 is set

out below and is not incorporated in this compilation.

Section 4:

After "States," insert "of the Australian Capital Territory,".