Commonwealth of Australia v Palmanova Pty Ltd

Case [2024] FCAFC 90

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Palmanova Pty Ltd [2024] FCAFC 90

Appeal from: Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391
File number(s): NSD 1519 of 2023
Judgment of: BANKS-SMITH, ABRAHAM AND DOWNES JJ
Date of judgment: 5 July 2024
Catchwords:

CULTURAL HERITAGE – where “protected object of a foreign country” (the Artefact) purchased by the respondent was, upon its entry into Australia, intercepted under the Customs Act 1901 (Cth) and seized under the Protection of Movable Cultural Heritage Act 1986 (Cth) (the Act) – whether the Artefact is liable to forfeiture under s 14(1) of the Act

STATUTORY INTERPRETATION – proper construction of s 14(1) of the Act – whether export of protected object from the foreign country must have occurred on or after the commencement of the Act in order for it to be liable to forfeiture under s 14(1) of the Act

HELD – appeal allowed – protected object liable to forfeiture under s 14(1) of the Act – said object is forfeited

Legislation:

Acts Interpretation Act 1901 (Cth) s 15AB

Criminal Code ch 2

Customs Act 1901 (Cth)
Protection of Movable Cultural Heritage Act 1986 (Cth) ss 6A, 14, 34, 37, 41, 46
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, opened for signature 14 November 1970, 823 UNTS 231 arts 1, 6, 7 (entered into force 24 April 1972)
Cultural Property Export and Import Act 1975 (Can) s 31
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Director of Public Prosecutions of the Commonwealth of Australia v Keating [2013] HCA 20; (2013) 248 CLR 459
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
North Australian Aboriginal Justice Agency Limited v Northern Territory of Australia [2015] HCA 41; (2015) 256 CLR 569
Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Heller, Zango and Kassam (1983) 27 Alta LR (2d) 34  
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 96
Date of hearing: 20 May 2024
Counsel for the Appellant: Mr Johnson SC and Mr Swan
Solicitor for the Appellant: HWL Ebsworth Lawyers
Counsel for the Respondent: Mr Lancaster SC
Solicitor for the Respondent: Simpsons Solicitors

ORDERS

NSD 1519 of 2023
BETWEEN:

COMMONWEALTH OF AUSTRALIA

Appellant
AND:

PALMANOVA PTY LTD

Respondent

ORDER MADE BY:

BANKS-SMITH, ABRAHAM AND DOWNES JJ

DATE OF ORDER:

5 JULY 2024

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The respondent pay the appellant’s costs, to be agreed or assessed.

THE COURT DECLARES THAT:

1.The…

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Commonwealth of Australia v Palmanova Pty Ltd [2024] FCAFC 90
Case
[2024] FCAFC 90
Decision Date

CaseChat Overview and Summary

The appeal was brought by the Commonwealth of Australia against Palmanova Pty Ltd, a private respondent. The dispute concerns an artefact made from black basalt that was purchased by the respondent online from a gallery in Colorado, USA. The artefact was intercepted upon its entry into Australia and seized by customs officials under the Protection of Movable Cultural Heritage Act 1986 (Cth) (the Act). The primary issue in the case is whether the artefact is liable to forfeiture under section 14(1) of the Act. The Act came into effect on 1 July 1987. The respondent argued that section 14(1) of the Act applies only to exports that occurred on or after the commencement of the Act. However, the Commonwealth argued that the Act applies to exports that occurred prior to its commencement, provided that the importation of the object occurred after 1 July 1987. The court held that the appeal should be allowed and that the Artefact is liable to forfeiture under section 14(1) of the Act. The court found that the Artefact was exported from Bolivia prior to the commencement of the Act but was imported into Australia after 1 July 1987. The court concluded that the use of the present perfect tense in section 14(1)(a) of the Act implies that the exportation should have some relevant connection to the operation of the Act, i.e., the exportation should have occurred whilst the Act is in force. The court also found that the connection necessary to explain the use of the present perfect tense could be provided by the relationship between the acts of import and export. The court concluded that the Artefact is liable to forfeiture under section 14(1) of the Act, and the said object is forfeited.

Orders

Orders of the court

1. The appeal be allowed.

2. The respondent pay the appellant’s costs, to be agreed or assessed.

THE COURT DECLARES THAT:

1. The object described as “the Artefact” in the reasons of the Court dated 14 November 2023 is liable to forfeiture under s 14(1) of the Protection of Movable Cultural Heritage Act 1986 (Cth); and

2. The said object is forfeited.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These submissions (and others advanced by the respondent) do not tell against the construction explained above. Nor do they support the construction of s 14 contended for by the respondent. Conclusion For the reasons given, we are of the view that the appeal should be allowed, with costs. It necessarily follows from the unchallenged factual findings of the primary judge, that:(1)the object described as “the Artefact” in the primary judgment is liable to forfeiture by virtue of s 14(1) of the Act; and(2)the said object is forfeited. This is an appeal brought by the appellant (the Commonwealth) from a decision of the primary judge in Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391 (J or judgment). This case concerns an artefact, which is made from black basalt and which was purchased online by the respondent, an Australian company, for USD$17,340.00 from the Artemis Gallery in Colorado. As the judgment recites at J [1], the artefact was shipped by FedEx to Melbourne on or about 24 June 2020. Upon its entry into Australia, it was intercepted by officials acting under the Customs Act 1901 (Cth) and retained by them. Documentation accompanying the artefact suggested that it was pre-Columbian in origin and came from Tiwanaku, an ancient city the monumental ruins of which lie in Bolivia near Lake Titicaca. The outcome of the proceeding below (and this appeal) turns on whether the artefact is liable to forfeiture because of the operation of s 14(1) of the Protection of Movable Cultural Heritage Act 1986 (Cth) (the Act). The Act came into force on 1 July 1987. To fall within s 14(1) of the Act, the artefact must be (inter alia) a protected object of a foreign country that has been exported from that country. It is common ground that the artefact was exported from Bolivia prior to 1 July 1987. The primary judge did not accept the Commonwealth’s construction of s 14(1), which was that it applies to an export of an object which occurred prior to as well as after 1 July 1987: J [378]. This had the consequence that s 14(1) was found to not apply to the artefact: J [380]. By its appeal, the Commonwealth maintains that s 14(1) applies to an object which was unlawfully exported from another country, irrespective of whether that occurred prior to or after 1 July 1987, and where the importation of the object occurred after 1 July 1987. For the following reasons, the appeal should be dismissed.The reasons of the primary judge Section 14(1) of the Act provides: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.(Emphasis added.) The primary judge referred to the respondent’s submissions which emphasised the difference between the use of the phrase “has been” in s 14(1)(a) and the use of the word “was” in s 14(1)(b), stating at J [346] and [347]:One of the [respondent’s] points is that if s 14(1)(a) is not read this way then ‘has been exported’ in effect means only that the object ‘was exported’ from the foreign country. This, it points out, is not what the provision says and stands in contrast to s 14(1)(b) which does require that the exportation ‘was prohibited’. On this view, the words ‘has been exported’ mean something different to ‘was exported’ precisely because those are the words which s 14(1)(a) uses. In particular, so submits the [respondent], s 14(1)(a) is expressed in the present perfect tense whereas s 14(1)(b) is expressed in the past tense. The different choice of tense therefore suggests that some difference between the temporal questions posed by s 14(1)(a) and s 14(1)(b) was intended.Whilst I was initially strongly of the view that the [respondent’s] submission was wrong I have eventually come to think that it is correct or, if not correct, incorrect only in an immaterial way. The avoidance of superfluity in statutory construction is a well-recognised value: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 382 [71] per McHugh, Gummow, Kirby and Hayne JJ, quoting Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ. Thus the use of the present perfect tense in s 14(1)(a) must be given some work to do. If Parliament intended that ‘has been exported’ in s 14(1)(a) does not mean the same as ‘was exported’, the question of what those words do mean then arises. At least as a matter of initial impression, a plausible interpretation of the provision is that it requires that the exportation should have some relevant connection to the operation of the Act. On this view, ‘has been exported’ would connote ‘has been exported whilst this Act is in force’. Constructional plausibility is one thing, however, ordinary meaning perhaps another.

Ratio Decidendi

Legal Principle Established

For the reasons below, we would allow the appeal. Accordingly, in our view, given his Honour’s factual conclusions, the Artefact is liable to forfeiture pursuant to s 14(1) of the Act. Consideration For the convenience of readers, it is helpful to recite the terms of s 14 of the Act: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 commits an offence.Penalty:(a) if the person is a natural person—imprisonment for a period not exceeding 5 years or a fine not exceeding 1,000 penalty units, or both; or(b) if the person is a body corporate—a fine not exceeding 2,000 penalty units.… As referred to above, s 14(1) was in issue in these proceedings as the importer, the respondent on the appeal, imported a protected object from a gallery in Colorado. The object was seized by the Commonwealth upon its entry into Australia. The primary judge found that s 14(1) of the Act, properly construed, applies to a protected object if the act of exportation referred to in s 14(1)(a):(a)occurred on or after the commencement of the Act on 1 July 1987; or(b)(alternatively) is sufficiently connected with an act of importation, itself occurring on or after 1 July 1987, such that the importation and exportation together constitute a “transfer”. The basis of his Honour’s reasoning in respect to the first construction (at [7(a)] above) was that s 14(1)(a) uses the present perfect tense (“has been exported”), whereas s 14(1)(b) uses the past tense (“was prohibited”). It was reasoned that the present perfect tense in s 14(1)(a) must have been used for a purpose. That is, it must have work to do. The primary judge concluded that on the Commonwealth’s construction of s 14(1), which was that there is no time restriction for when the object was exported from a foreign country, the use of the present perfect tense would be otiose. The primary judge observed at [358] of Palmanova Pty Ltd v Commonwealth of Australia [2023] FCA 1391 (primary judgment; PJ) that “[t]he formal nature of a statute permits the inference to be drawn that its words were carefully chosen and would not involve redundancy”. The basis of the second construction (at [7(b)] above) appears to be that the connection necessary to explain the use of the present perfect tense could be provided by the relationship between the acts of import and export. The example given was an object which was shipped to Australia before the Act came into force on 1 July 1987, but which arrived in Australia after the Act took effect: PJ at [360]. Though his Honour postulated two alternative constructions, his Honour did not decide on one, given the facts of this case. At [378] of the primary judgment his Honour concluded: …As between the Applicant’s construction and the other construction I have mentioned (which requires the export to be sufficiently connected to an import occurring on or after 1 July 1987 such that together they constitute a ‘transfer’), it is not necessary to choose on the facts of this case. The Artefact had been exported from Bolivia by no later than the 1950s and the Applicant’s importation of it into Australia has no connection with the circumstances under which it made its way from Tiwanaku to Mr Osona’s collection in Buenos Aires.