Palmanova Pty Ltd v Commonwealth of Australia

[2025] HCATrans 44

[2025] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S147 of 2024

B e t w e e n -

PALMANOVA PTY LTD

Appellant

and

COMMONWEALTH OF AUSTRALIA

Respondent

GAGELER CJ
GORDON J
EDELMAN J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 JUNE 2025, AT 9.59 AM

Copyright in the High Court of Australia

MR R.P.L. LANCASTER, SC:   May it please the Court, I appear with MS N.A. WOOTTON for the appellant.  (instructed by Simpsons Solicitors)

MR G.T. JOHNSON, SC:   May it please the Court, I appear with MR N.D.J. SWAN for the respondent.  (instructed by HWL Ebsworth Lawyers)

GAGELER CJ:   Thank you, Mr Johnson.  Mr Lancaster.

MR LANCASTER: May it please the Court. The issue raised in this appeal is the temporal operation of section 14(1) of the Protection of Movable Cultural Heritage Act 1986.  It is not necessary to go too far into the facts of the case, regrettably.  The facts relevant to the question of statutory construction are limited and were not in dispute in the Full Court below.  I will address them to the extent required in the course of my submissions on the statute.

May I turn immediately to the Act.  It was enacted in May 1986 and commenced operation on 1 July 1987.  Section 14 is one of the provisions in Part II of the Act, which is titled “Control of Exports and Imports”.  Can I start with Division 1 of Part II, beginning at section 7, which addresses exports.  Namely, the controls upon exporting an object that is part of the movable cultural heritage of Australia.

Just to briefly note the operation of that Division, section 8 creates a national cultural heritage control list with Class A and Class B objects; unlawful exports are regulated in section 9(1) and 9(2) at risk of forfeiture; there is a regime in section 10 for the grant of permits, and section 10A, for the permits for certain institutions.  Can I note section 12, which provides for a certificate to be granted to allow the export of an Australian protected object that has been imported into Australia “for temporary purposes”.

Turning then to Division 2 of Part II of the Act, the only section of which is section 14, these are the controls on imports and unlawful imports. Section 14(1)(a) refers to:

a protected object of a foreign country –

that phrase is defined in section 3(1). Your Honours will also see the reference in section 3(5) explaining the reference to “movable cultural heritage, in relation to a foreign country”. The relevant object of movable cultural heritage in this case is an ancient basalt artefact made by members of the Tiwanaku culture on the shore of Lake Titicaca on land that is today in Bolivia. The artefact is a “protected object of a foreign country”, namely, of Bolivia, within the meaning of the Act. I will come back shortly to the meaning of the phrase in section 14(1)(a) “has been exported”, which is central to the appeal. The criterion in s 14(1)(b) is that:

the export was prohibited by a law of that country relating to cultural property –

that provision was satisfied in this case:  the laws of Bolivia included a 1906 law that prohibited the export of cultural property of Bolivia.  That law applied to the artefact in these proceedings, as an object of the Tiwanaku people.  The artefact was, as found by the primary judge and not now disputed, exported from Bolivia in contravention of that law sometime after 1906, and the 1950s.  The criterion in section 14(1)(c) is that:

the object is imported –

that provision, of course, was also satisfied in this case.  The object was brought into Australia on around 24 June 2020.  It was thereafter held by the Commonwealth for a period of time, and then seized by an inspector under section 27(2) and section 34 of the Act on 17 May 2021.  Before further addressing the text of section 14, can I note some of the other provisions in the legislation.  I have referred to section 34 in relation to the seizure of an object, which is to be read with section 27(1).  So, section 34:

An inspector may seize a protected object that the inspector believes on reasonable grounds to be forfeited.

Section 27(1) extends that phrase to include “liable to forfeiture”. That is, for example, the consequence of section 14(1) applying or, as another example, section 9(2) applying in respect of Australian objects. Can I refer to section 35(1) – the “thing” that is

seized . . . may be retained –

and (1)(b) applies here:

in the case of any other protected object –

it may be retained:

until a court orders the return of the object or the object is forfeited –

Section 36(2) provides for the notice of seizure to be given to the owner or possessor of the object.  Section 37(1) was the basis of the application in the Federal Court, that the owner:

Where:

(a)a protected object has been seized . . .  and

(b)the object is not forfeited by –

one of the default provisions in 36 or 37, then:

the owner . . . may bring an action against the Commonwealth –

and that was the character of the action in the Federal Court.  Section 37(3), where that:

action is brought . . . the court shall determine, on a balance of probabilities, whether:

. . . 

(b)the object is liable to forfeiture –

That was the nature of the proceeding.  Can I draw attention to section 38, which is the “Result of forfeiture”.  An object that is forfeited:

(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 –

the former owner pays the costs of those steps.

GAGELER CJ:   So, forfeiture is actually by order of the court, under section 37(3)(d), is it?

MR LANCASTER:   Yes, your Honour.

GAGELER CJ:   That is the event.

MR LANCASTER:   Yes, with the statutory consequence in 38.  Section 41 provides for some provisions related to foreign country requests for the return of objects; 41(1) and 41(2), I note their contents and may come back to that.  Section 46(1) provides, relevantly, that:

An offence against subsection . . . 14(2) is an indictable offence.

That is relevant to one of our arguments based on context. Subsection 46(3), it can be dealt with summarily if prosecutor and defendant consent. Can I go back, then, to the text of section 14(1). Section 14(1) provides that an:

object is liable to forfeiture –

when three circumstances exist. Each is set out in a separate subsection, and each criterion is expressed in a different tense, and the interpretation of the provision ought, in our submission, accommodate that structure and those differences. The first element of section 14(1)(a) contains the relevant phrase:

has been exported –

which is expressed in the present perfect tense.  It does not say “was exported” – and I will come back to that.  In contrast, section 14(1)(b):

the export was prohibited –

is in the past tense, indicating clearly the requirement of the subsection that at the time of export, in the past, there existed a prohibition on such exports.  The third element, and in further contrast, in 14(1)(c):

the object is imported –

speaks to the present.  That is, it speaks to the acts of importation that occur on and after the day that the Act commenced operation.  And it has always been common ground between the parties that 14(1)(c) speaks of an importation after the commencement of the Act.

GAGELER CJ:   So, (b) refers to a past act, (c) refers to a present act.  Is that the way it works?

MR LANCASTER:   Subsection (b) refers to a past characteristic.  That is, at the time of the export, it was prohibited by a law of the foreign country, and (c) refers to the present act of bringing it into Australia.  Yes.

The temporal operation of subsection (1)(a) is, in our submission, indicated by the legislative choice of the tense in the grammar of section 14(1). It is the ordinary meaning of (1)(a) that it operates upon a state of affairs or a characteristic which comes into being after the commencement of the statute. The present perfect tense, as a matter of grammar, conveys a situation taking place in the past which is related somehow to the present.

The relationship with the present, in our submission, conveyed by 14(1)(a) is between the completed act of export and the present time at which Parliament is speaking by this legislation. Namely, on and after the commencement of section 14(1), on and after 1 July 1987. Our submission is that the majority in the Full Court erred in the textual analysis in the section by finding, in effect, that “has been exported” in (1)(a) means “was exported”.

That involves a clear redundancy of statutory language, because it leaves the tense and the words “has been exported” with no practical work to do, that is, because any protected object that satisfies 14(1)(c) would necessarily also satisfy 14(1)(a) – it cannot come into Australia unless it has left a foreign country.  His Honour the trial judge, Justice Perram, discussed tense and examples of tense in the primary judgment from paragraph 352 and following.  I do not propose to address those passages orally, but they do, in my submission, support the appellant’s proposed construction.

GORDON J:   You adopt that analysis?

MR LANCASTER:   I adopt the analysis of grammar, yes.  Could I move to consideration of context.  Section 14(2) provides immediate and significant context.  The words “has been exported” should be construed consistently across 14(1)(a) and 14(2)(a), and we have given references in writing for the proposition that unless there is good reason to conclude otherwise, the same phrase appearing in different subsections of the same provision should be given the same meaning and redundancy should be avoided in both contexts.

On the majority’s construction – that is, the majority of the Full Court – the words “has been exported from that country” could be simply omitted without changing the operation of section 14(2). It may be noted that the structure of section 14(2) is somewhat different from section 14(1). The chapeau refers to the act of importation with knowledge of the two matters that are there specified in subsections. In our submission, that language is consistent with an immediate temporal connection between the export and the import and is consistent with the notion of a transfer of objects from one country to another.

The status of section 14(2) as a penal provision is also relevant. I have earlier referred to section 46(1) and (2) and section 41, which are ancillary to this offence provision. Each circumstance as referred to in (a) and (b) has to exist, and the person must be aware that it exists. The reference to knowing those matters does pick up section 5.3 of the Criminal Code.  I would just observe that in the Cultural Heritage Act, section 6A indicates that:

Chapter 2 of the Criminal Code applies to all offences against this Act.

So, what that means, as per section 5.3 of the Criminal Code, is that – that provides that:

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

In our submission, the offence provision has a wider scope on the operation if it operates according to the interpretation of the majority in the Full Court than it does on the interpretation of Justice Downes in the Full Court, or Justice Perram, or that which the appellant proposes.  Now, while there may be difficulties of proof in relation to knowledge of past events and their illegality as is required under 14(2), nevertheless, the potential reach of that offence provision is broader on the interpretation of the majority.

JAGOT J:   So, what you are saying is, if I can just understand it, for example, you can know that a protected object of a foreign country – I do not know, say, Netherlands in World War 2 – has been exported from that country – say, to Germany – and you know that under Netherlands law, for example, that it was that export was an illegal expropriation under Netherlands law, and therefore it should never have been expropriated, and then that object ends up wherever it ends up – Switzerland, like a lot of them did – and then, knowing all those things, you can import that to this country; none of the provisions bite because it is pre-1987.

MR LANCASTER:   Yes, your Honour, that is the submission, and the difficulty – the expanded operation of the offence, on the Commonwealth’s proposed interpretation, involves that question of proof in your Honour’s example of the 1940s, in this case, proof of the operation of the law in 1906 ‑ ‑ ‑

JAGOT J:   Sure, sure, you have to prove that the law - - - 

MR LANCASTER:   ‑ ‑ ‑ Egyptian legislation the previous century.  So, Justice Downes drew attention to a passage, on which we rely, that that not only expands the operation of the offence but it involves real difficulty.

JAGOT J:   Well, saying “expands” assumes something about the scope of the offence in the first place.

MR LANCASTER:   It does.

JAGOT J:   The fact is, if you cannot prove knowledge because you cannot prove the law, then there is no offence anyway.  You cannot prove ‑ ‑ ‑ 

MR LANCASTER:   Indeed.  And even in cases where it is unarguably all happening after 1987, there will still be, no doubt, difficulties of proof of the offence.

JAGOT J:   Sure, there will be, yes.  But the example I gave, none of this legislation would bite on that.

MR LANCASTER:   Yes, your Honour, that is the effect of the submission.

GORDON J:   The submission made about expansion – to pick up something Justice Jagot put to you – is not quite right, is it?  Because it is not really expanded, it is actually quite narrow.  You have to prove knowledge – it is not reasonably suspect, it is not any of those other criminal standards – it is the highest of all of them.

MR LANCASTER:   I used the expression it is “expanded” to refer to the availability of the charge in respect of illegal exports before 1 July 1987.

GORDON J:   So, your expansion is temporal only, not actually in terms of the possibility of facts which might be caught.

MR LANCASTER:   Yes, in any positive prosecution, there would be real problems of proof, one would imagine ‑ ‑ ‑

GORDON J:   No, not necessarily ‑ ‑ ‑

MR LANCASTER:   ‑ ‑ ‑ but there is at least the theoretical.

GORDON J:   Possibly in terms of knowledge of the person, but there are two scopes of fact, I think.

GAGELER CJ:   I am not quite sure what we get from saying that the offence is wider on one construction and narrower on another – in itself, where does that lead us?

MR LANCASTER:   By two indirect steps, it supports the construction we have proposed, because we invoke the principle that, where there is a constructional choice in a penal provision – a real case of ambiguity – then the constructional choice which should be adopted is that which is more favourable to the subject, which ‑ ‑ ‑

EDELMAN J:   That has been described as an absolute last resort principle of construction.

MR LANCASTER:   Yes.

EDELMAN J:   One that is much more fundamental is a purposive construction, and one of the purposes here was to enact a law that is consistent with the Convention.

MR LANCASTER:   Indeed.  And I will come back to that because, with respect, your Honour, I entirely adopt what ‑ ‑ ‑

EDELMAN J:   Your construction would drive a truck through the Convention, would it not?

MR LANCASTER:   I beg your pardon, your Honour?

EDELMAN J:   It would drive a truck through the Convention.

MR LANCASTER:   The Convention is entirely forward‑looking from the time it was put in place, and the extrinsic materials, as I will come to in a moment – the second reading speech and the explanatory memorandum – adopt with open arms that connection with the Convention.

JAGOT J:   They do, I think, only in respect to museums and similar institutions.

MR LANCASTER:   Indeed.

JAGOT J:   Not everybody else.

MR LANCASTER: No, there are material differences as to the scope of the provisions, but we rely on the temporal operation of the Convention as something that is distinct from that scope and which does provide interpretative assistance to the purpose of section 14(1).

BEECH‑JONES J:   Mr Lancaster, would the practical effect of your construction be that the bulk of protected objects of foreign countries are not protected by this legislation in that, historically, most of them were probably, for want of a better phrase, looted prior to 1987?

MR LANCASTER:   There would be a large number of objects in that category, as a matter of common knowledge, but the Minister in the second reading speech refers to a continuation of illicit export and import of such material.  The international community sought to do something about that, at least to a limited extent, in 1970.  The Australian Government’s Parliament sought to do something about that in 1987.  So, to the extent it persisted into the future, our submission is that the purpose of the legislation was to control that future and not the restitution for past wrongs, and that was explicitly mentioned in the materials, as well.

GAGELER CJ:   I think you have mentioned that there were two reasons why a narrow construction of the criminal provision should be preferred.

MR LANCASTER:   Yes.

GAGELER CJ:   One is in principle, it is a default position.  What was the other one?

MR LANCASTER:   Well, it promotes certainty and ascertainability, in this context, that the relevant knowledge is of circumstances and events after the commencement of Act in 1987 compared to a potential inquiry about events many decades, or a century – or more than a century – before.

Your Honours, I was going to come to this a little later, but in light of your Honour Justice Edelman’s question could I go to the decision in Stephens v The Queen.  It is in part C, volume 4 of the joint book of authorities, item 20 – Stephens v The Queen 273 CLR 635. May I take your Honours immediately to paragraph 33, where Justices Keane, Gordon, Edelman and Gleeson made observations in respect of – this is, of course, stated in a context of a criminal case addressing potential retrospective effect of a provision, but it refers to an underlying principle about how to interpret the temporal operation of legislation as based on reasonable expectations, and in my submission, that principle is more generally of assistance.

I will not read out the paragraph, but I do invoke it, and in my submission, that does cohere with principles of legality or aspect.  It might even be an aspect of the principle of legality.  Namely, that the law should be ascertainable and comprehensible to those who are bound by the law.  In the context of this case, in terms of how to identify these reasonable expectations, in my submission, as I take your Honours to the explanatory memorandum, the second reading speech and the invocation of the Convention, those are matters which would, in my submission, form the basis or the source of these expectations or this consideration.

JAGOT J:   Surely, though, the relevant act here is only – (a) and (b) are just circumstances, the actual act is:

(c)the object is imported –

There is no dispute that that act is only captured post‑1 July 1987.

MR LANCASTER:   Indeed, yes.

JAGOT J:   And it is only criminal if it is done with the knowledge of the circumstances in (a) and (b), to which Justice Gordon has already pointed.  So, it is prospective legislation wholly, it is just acting on past – where there are these past circumstances in places.  I am just not sure what – the relevant expectation can only be about the act of importation by a person in certain circumstances.

Those being, if you have knowledge that the object was, you know, exported against the law of another country, how can it not be a reasonable expectation that this legislation would operate, no matter when the – I mean, the fact of the law of the other country had to prohibit it, I am just not following how that cannot be a reasonable expectation or anybody could be surprised that the law would operate in the way that it seems to be written.

MR LANCASTER:   As I mentioned, I did intend to come to Stephens after going to the extrinsic materials.  But my answer to your Honour is based on those extrinsic materials and the tense in the text of the statute.

JAGOT J:   Right, so it all comes down to the words “has been” being used rather than “was”.

MR LANCASTER:   That is certainly fundamental to our proposed construction and the difference that that makes is confirmed by the extrinsic materials, in our submission.

GORDON J:   Are you going to go to the extrinsic materials now?

MR LANCASTER:   I am, yes.

GORDON J:   Good.

MR LANCASTER:   Can I make one final quick submission about context, your Honour, which is there is a wider symmetry in the Act overall.  By that, I mean that at the same time as introducing an authorisation regime in respect of Australian objects that are to be exported from Australia, in our submission, the Act begins prospectively, giving reciprocal effect to the export restrictions enacted by foreign nations by way of the import controls in section 14, and that symmetry reflects what I am about to come to as the demonstrable purpose of the legislation from the extrinsic materials.

The first proposition is that, in the interpretation of 14(1), it is appropriate to consider relevant extrinsic materials, being the explanatory memorandum, the second reading speech and the Convention.  The majority of the Full Court erred by concluding that:

the construction of s 14 is clear –

and that it was “unnecessary to consider” extrinsic materials, at paragraph 27 of their Honours’ judgment.  That approach is, with respect, not consistent with what has been described as the modern approach to statutory construction, and in this case we do content that no different outcome comes without applying section 15AB of the Acts Interpretation Act on the one hand and the common law principles of statutory interpretation on the other.

In terms of the explanatory memorandum, can I turn to that first.  It appears in part E, volume 6 of the joint book of authorities, at item 30, they start at page 952 of the bundle.  In the first two paragraphs, there is an explicit and immediate connection with the 1970 Convention.  Reference to the Convention recurs at pages 958 and 965, as I will come to in a moment.  That connection enhances the utility of consideration of the Convention as an aid to interpretation, which I will also come to shortly.

BEECH‑JONES J:   Right, but we are not talking about an Act that gives effect to the Convention, we are talking about an Act that means that we are compliant with the Convention.

MR LANCASTER:   Indeed.  So, one might expect ‑ ‑ ‑ 

BEECH‑JONES J:   Is that right?

MR LANCASTER:   Indeed.  The Act does not adopt the Convention, the Act does not adopt the limitations on some of the clauses in the Convention – some of the articles that I will come to – but it is put forward as something that – the words used are:

enable Australia to become a party –

That was perhaps a loose use of language.  It is a step that Australia is taking in connection with that Convention.  Page 952, there is a reference to the existing provisions of the Customs Act concerning import.

We have looked at this, I might say to your Honours that it is not in the written submissions but there is nothing to like effect of section 14 in the Customs Act or the schedules to the Customs Act and, indeed, in terms of import controls, they were very limited indeed, and really seem to be limited to certain objects from Papua New Guinea being brought into Australia.

GAGELER CJ:   That may be the mechanics are based on the Customs Act provisions, are they?  The forfeiture and the ability to bring proceedings – that sort of thing.

MR LANCASTER:   Yes, indeed.  They are reflective of the Customs Act provisions.  On page 953 of the bundle in the explanatory memorandum, the first full paragraph refers to:

a formal request to return the object –

which I have taken your Honours to – section 41.  In the second full paragraph, a reference to the recognition of the:

individual’s right to enjoyment of property whilst establishing the nation’s right to restrict the movement of that property –

and a reference to a “sanction” further down the page, at about point 6:

The primary sanction in the Bill to discourage unlawful export or import of important cultural heritage objects –

being the forfeiture.

BEECH-JONES J:   That would support your opponent’s construction, would it not?

MR LANCASTER:   I beg your pardon, your Honour?

BEECH-JONES J:   That statement would support your opponent’s construction.

MR LANCASTER:   No, your Honour, it does not.  With respect, it does not refer to anything, one way or the other, about the import of objects.  It is a general description.  On 958, there is a note on what was to become section 7, defining “movable cultural heritage of Australia” and, as observed in the final sentence of that paragraph, there is an assertion of consistency with the definition in the Convention.  Thereafter, the explanatory memorandum clauses generally follow what became the enacted provisions.

Can I skip over most of that description to take your Honours to page 965, where the explanatory memorandum addresses what became section 14.  We rely on these three paragraphs.  It is explicit that the enactment occurs in the context of what is referred to in the first line as:

reciprocal protection of the movable cultural heritage –

and the obligations of the parties to the Convention, while making it equally clear in that first paragraph that the provision will not be limited in its application to parties to the Convention.  The paragraph at the foot of 965 is also material, since it draws an explicit connection between the requirement for an official request from the relevant foreign government, in what became section 41, and the Convention stipulation for the provision of compensation to innocent third party purchasers who are affected by the forfeiture of an object.

We submit that the interpretation advanced by the majority in the Full Court and by the Commonwealth is inconsistent with this context provided by the explanatory memorandum, since that interpretation gives operation in respect of objects illegally exported at any time in the past, and that does not reflect the explanatory memorandum and its connection with the Convention and the establishment of these reciprocal rights and obligations.

JAGOT J:   Sorry, Mr Lancaster – the Act does not expressly include the compensation requirement?

MR LANCASTER:   It does not.

JAGOT J:   That is in the Convention.

MR LANCASTER:   It is in the Convention, yes.

JAGOT J:   So, it just refers to the request – section 14?

MR LANCASTER:   Just refers to the request, does not pick up compensation.

JAGOT J:   Right.  But I would assume that the Convention – if you are a party to the Convention when you make the request, if there is – I mean, if you are an innocent third party, you can never be criminally liable because you are never going to have the knowledge.

MR LANCASTER:   The operation of the compensation provisions in the Convention are not fully explained in the explanatory memorandum, but the Convention is, as your Honour has observed, limited to museums and similar institutions bringing in the material.

JAGOT J:   So, we do not have Bolivia’s request in the evidence, for example?

MR LANCASTER:   No.

JAGOT J:   Okay.  So, we do not know whether it ‑ ‑ ‑

MR LANCASTER:   It was in evidence before the trial judge, but it is not ‑ ‑ ‑

JAGOT J:   It was in – okay.  I mean, it may have contained an undertaking that if it is an innocent third party, they will get compensation or something.  We just do not know.

MR LANCASTER:   I cannot answer your Honour’s question on that, except to say it is not in the statute.

JAGOT J:   Yes.

MR LANCASTER:   Could I move then to the second reading speech.

BEECH‑JONES J:   The forms of a request that can be made are limited to requests in respect of objects exported after the commencement of this Act, is it?

MR LANCASTER:   Correct.  The second reading speech is ‑ ‑ ‑ 

BEECH‑JONES J:   So, that would mean we would have a request from a country for an object that was exported in contravention of their laws, but we would have no corresponding – say, in this case – ability to give effect to it.

MR LANCASTER:   On the appellant’s proposed construction, in respect of this object, yes, the request from Bolivia would, on our construction, be met with the response the statute does not provide for seizure and forfeiture.

BEECH‑JONES J:   Sorry, I took you off your course, Mr Lancaster.

MR LANCASTER:   No, not at all, your Honour.  I was moving to the second item of extrinsic materials, the second reading speech, which is part E of the joint book, volume 6, item 28, starting at page 934 of the bundle.  The Minister for Arts, Heritage and Environment read the Bill a second time.  In the first paragraph of the second reading speech ‑ ‑ ‑

GAGELER CJ:   Mr Lancaster, what page is it?

MR LANCASTER:   I am sorry, page 934.

GAGELER CJ:   Thank you.

MR LANCASTER:   Of the bundle, that is, your Honour.

GORDON J:   Tab 28.

GAGELER CJ:   Thank you.

MR LANCASTER:   I will refer your Honours to the first eight or 10 lines of the second reading speech.  There is an explicit and immediate connection, again, with the 1970 UNESCO Convention.  In the right‑hand column on that page, first full paragraph:

The definition of cultural material given in the Convention –

is referred to and, as we have seen, the explanatory memorandum picked up the same asserted consistency.  Further down that column:

Australia’s decision to accede to the 1970 Convention was announced . . . in October 1983.  The legislation before the House will put us in a position to do this.

Further down the page, another couple of references to the Convention.  At page 935 of the bundle ‑ ‑ ‑

GORDON J:   Just before you leave that, some of the – in the right‑hand column on page 934, dealing with the temporal aspect, appears to suggest, I think, the paragraph which commences:

Most of the protective measures –

It would appear to be that they were measures which had been in place and been adopted prior to the enactment of this Act.

MR LANCASTER:   Yes, and as a matter of ‑ ‑ ‑

GORDON J:   Is that not against your construction, as well?  In other words, it is not – it is, in a sense, dealing with regularising practices that have been in place and which are intended to deal with all cultural objects, regardless of when they are imported – or exported, sorry.

MR LANCASTER:   Yes – well no, it is not, with respect, against our construction.  The reference there is expressed in a way that is directed to Australian movable cultural heritage, in my submission, and the reference is to Commonwealth and State-level protection of Australian objects.  So, that particular paragraph does not appear to be referring to pre-existing import controls of foreign items of cultural property.

GORDON J:   Sorry, I misunderstood your submission.  I thought earlier your submission was there was a reciprocity of timing and that, therefore, there was this mirror between import and export.

MR LANCASTER:   Well, yes, that is the submission.  The more comprehensive export and import control regime in the Act, it was reciprocal and timed, and done by reference to the international agreement.  There may be a qualification to that principle of a new international reciprocity in respect of some of the pre-existing controls on Australian items of cultural heritage.  At page 935, there is a reference in the left‑hand column near the top expressly to:

reciprocal arrangements with other countries for the return of illegally exported material.

And, in context, that refers to, in my submission, a forward‑looking reciprocity established by the Convention.  Then, in about point 4 of that page, on the left‑hand column, the Minister then turns to deal with:

export and import controls.  I should say at the outset that the Government is not seeking to stop movement of all cultural material or even most of it.

And in the right‑hand column, at about point 7 of the page, turns to import controls specifically and says:

The import controls will apply only to important cultural material which has been imported into Australia without the requisite export authorisation from the country of origin.  There will be no search of incoming luggage or freight.  The import controls exist solely to enable Australia to respond if an official complaint is received from a foreign government that an illegally exported object has been brought to Australia.

And then finally, further down that page:

Although these controls relate essentially to Australia’s treaty obligations under the 1970 Convention, they will also make it possible for the Government to provide this form of protection to countries which may not yet be party to the Convention.  An institution or individual buying an important cultural object from overseas will need to be satisfied that the requisite export authorisations have been issued in the country of origin.

And so, on to the end of that paragraph.  Now, in context, in my submission, your Honours, the reference to “export authorisations” can only have been references to the regime contemplated by the Convention.  Those references are explicable if, as the appellant contends, the Act is concerned with unlawful post‑commencement exports - - - 

BEECH-JONES J:   Is it not equally explicable as a reference to illegally – as just the converse of “illegally exported objects” that have been brought to Australia, which is a requirement on the construction you oppose?

MR LANCASTER:   Your Honour, the paragraph that I read out ‑ ‑ ‑

BEECH-JONES J:   Has the phrase that I – it has both phrases.  It has “requisite export” ‑ ‑ ‑ 

MR LANCASTER:   It does.  It does.  But, in my submission, the better view of that paragraph is to have regard to the notion of “requisite export authorisations”, which is part of the symmetry of the Act that I referred to and the reciprocal entering into of obligations for the future of parties pursuant to the Convention.

EDELMAN J:   So, what the Minister was really saying was, to interpolate:

The import controls exist solely to enable Australia to respond if an official complaint is received from a foreign government that –

a small subset of illegally exported objects have been:

brought to Australia.

or a subset after 1987.

MR LANCASTER:   Of course, I do not suggest that it be read so strictly as to import words into a second reading speech, and I accept that not everything in the second reading speech is resoundingly in favour of the construction that we propose but, in my submission, the better view of this passage in its reference to “export authorisations” is looking at what foreign countries will do and establish under the Convention, by implementing an export authorisation regime similar to that which Australia is introducing for Australian objects in the Act.

BEECH-JONES J:   But section 14, on the opposing construction, assumed that country had, regardless of the Convention, laws dealing with the export of cultural property, because it had to be prohibited.

MR LANCASTER:   Indeed.  So, there is a prohibition that is assumed or is one of the characteristics, but this reference in the second reading speech, in my submission, is to assumed legislation in foreign countries, much like Division 1 of Part II for Australian objects in this country.

BEECH-JONES J:   Why would we assume that, for those countries, only started in 1987?

MR LANCASTER:   You certainly would not assume that, your Honour. The assumption of the statute is that there are prohibitions in place, commencing at whatever time, but the submission about the second reading speech is that its direct connection to the Convention and its reference to the export authorisation regime and the “reciprocal” nature of that, which is the word used in the second reading speech, is better understood as assisting in the interpretive task to support the interpretation we put forward by reference to the text of section 14(1).

JAGOT J:   But the country of origin is always going to be the country whose cultural heritage it is, no matter where the object is at a particular time ‑ ‑ ‑ 

MR LANCASTER:   Yes.

JAGOT J:   ‑ ‑ ‑ because the whole context of this is the history of looting of objects of cultural – and the trade, and how it is getting more and more intense and high‑powered, and a lot of money in it.  So, why would you not just say:  this object is Bolivian, and wherever it was in time after it got taken from Bolivia, what was required was an export authorisation from Bolivia, which presumably you never would have got, because it is a priceless object of Bolivian cultural heritage?  Why does that then tie to 1987 onwards?

MR LANCASTER:   The extrinsic materials are put forward in the appellant’s case to support the construction from the text that I addressed your Honour on, and, in my submission, the – well, can I go to the Convention - - - 

GORDON J:   Can I ask one question.  Could you identify for me what you think is the high point of – let us take the second reading speech – as being supportive of the contention that the Act is limited to objects imported into Australia post‑commencement of the Act?

MR LANCASTER:   It is the final passage in the second reading speech that I was going to take your Honours to, at 936 of the bundle.

GORDON J:   This is the high point?

MR LANCASTER:   This is the high point.

GORDON J:   And this is the paragraph:  “Finally, let me stress”?

MR LANCASTER:   It is, yes.

GORDON J:   And what aspects of it do you say identify that to be the position?

MR LANCASTER:   Well, first, in the first sentence, the Minister says:

Finally, let me stress that the Convention is not concerned with restitution of cultural property taken from this country in the past or brought here in past years from other countries without proper authority.

Now, I - - - 

JAGOT J:   Well, that is import.

MR LANCASTER:   I beg your pardon, your Honour?

JAGOT J:   Well, the issue with that is we all accept (c), the import, has to be post‑1987.

MR LANCASTER:   Yes.

JAGOT J:   If you have imported pre‑1987, we all accept that is not this case, nobody – so that fits.

MR LANCASTER:   Yes, and I do not say that that answers the question of construction in the case but it - - - 

JAGOT J:   Well, if anything, it goes to the respondent’s construction.

MR LANCASTER:   Well, no, your Honour, because on the respondent’s construction, there would be an aspect of restitution in the sense of illegal exports, whenever occurring, being susceptible to a regime of forfeiture.  So, that - - - 

JAGOT J:   Well, not unless there is an import, post‑1987, to this country.

MR LANCASTER:   Yes.

GORDON J:   I had understood - - - 

MR LANCASTER:   And then in the next passage – I am sorry, your Honour.

GORDON J:   So, the first paragraph is dealing with pre‑1987 imports, that first sentence.  I think you have accepted that.

MR LANCASTER:   Yes.

GORDON J:   I had understood – is it “Rather, the concern is”, is that your high point?

MR LANCASTER:   No, it is the next passage, your Honour.

GORDON J:   Okay.

MR LANCASTER:   So:

The restitution of cultural property is the subject of other United Nations Educational, Scientific and Cultural Organisation efforts, but it is not the subject of the 1970 Convention or the purpose of this legislation.

And this is perhaps the high point, your Honour:

Rather, the concern is to draw a line across history to ensure that in future years transfers of important and valuable cultural objects from one country to another take place in a legal and orderly fashion and that sanctions imposed will discourage illicit trafficking in cultural material.

That is, in your Honour’s words, the high point in the sense the Minister explicitly says:

draw a line across history . . . in future years transfers –

will be “orderly”.  “Transfer” means export and import, in my submission, and as a matter of - - - 

BEECH-JONES J:   But from Australia, or from other – or we direct it to other countries.  In other words, is it transfers into Australia and out of Australia of important and valuable cultural objects?

MR LANCASTER:   I accept it is not explicitly clear but, in my submission, “transfer” incorporates a notion of export from a foreign country as well as export from Australia and then import to a foreign country and import to Australia.

GORDON J:   Can I just test that.  If that is right, then is that not just saying that transfers into Australia of Bolivian objects post‑1987 are to be the subject of this regime?

MR LANCASTER:   That is one aspect, but that would be an incomplete description of it, in my respectful submission.

GORDON J:   What is missing, and where do I find the missing bit?

MR LANCASTER:   It is probably contained in the Minister’s words:

draw a line across history to ensure that in future years transfers . . . from one country to another –

So, that encompasses, in my submission, exports from another country.

GORDON J: But here, we did have a transfer from one country to another. It came from Colorado to Australia post the enactment of the Act. That is why I am – so, we are dealing with (c) here, I think. We are not dealing with section 14(1)(a) and (b), are we? What I am trying to work out is, where do I find the construction of 14(1)(a) in this part here, when, reading that aspect, which is:

Rather, the concern is –

is dealing with just:

transfers of . . . objects from one country to another –

MR LANCASTER:   It is certainly not my position, my submission, that this speaks directly and explicitly to 14(1)(a), your Honour.  It is expressed in the general terms in which second reading speeches often are.  But it is of interpretive assistance and, in my submission, it does support our proposed meaning based on the text.

GORDON J:   Thank you.

MR LANCASTER:   Can I move then, finally, by way of extrinsic material, to the Convention, which is reproduced in part E of the joint book, volume 6, item 29, starting at page 938.  Can I note this is a reproduction from the United Nations Treaty series.  The Convention is also reproduced in [1990] ATS 2.  It entered into force for Australia on 30 January 1990.

The Convention, in my submission, provides some contextual assistance in the interpretation of section 14(1). As I have noted, the Convention is referred to expressly on multiple occasions in the second reading speech and the explanatory memorandum, and the Convention was the immediate impetus for the enactment of the Act.

The Convention is not expressly referred to in the Act.  So section 15AB(2)(d) of the Acts Interpretation Act does not apply in terms, but the general law, in my submission, recognises that the Court should seek to construe legislation in a manner which accords with Australia’s international obligations if such a construction is open.  In my submission, that principle applies even in circumstances like this, where domestic legislation adopts provisions in quite different terms to the relevant Convention obligations but, nevertheless, an enactment is done explicitly in the context of such an international instrument.

BEECH‑JONES J:   It is quite a big call, though, if it is clear that the Act is said to be:  once we pass this Act, that means we can subscribe to the Convention, in that our domestic law will be compliant, to then use the Convention to restrict the scope of the domestic law.  That is ‑ ‑ ‑

MR LANCASTER:   Not to restrict the scope of it, but to guide the interpretation of its temporal operation.  I will come to Article 7 immediately, if I may, but perhaps ‑ ‑ ‑

BEECH‑JONES J:   Yes, I will let you go.

MR LANCASTER:   ‑ ‑ ‑ first, to observe, or first to make the submission that the majority in the Full Court’s interpretation would travel well beyond the temporal boundaries of Australia’s international obligations when nothing in any provision of the Act or of the extrinsic materials indicates that that was part of the purpose of the legislation.

Article 1 in the Convention on page – it is a little hard to read, I am sorry, your Honours, but I think 940, defines the term “cultural property” to which reference is made earlier.  Article 7 is the most relevant of the articles.  And again, I emphasise that it is very clear there is no direct synchronicity between Article 7 and section 14 of the Act.  The differences are substantial and, in particular, Article 7 is directed to acquisitions by:

museums and similar institutions –

and the like.

EDELMAN J:   I mean, the real synchronicity is with Article 2, which is a statement of the UNESCO objects from the travaux préparatoires.

MR LANCASTER:   Yes.

EDELMAN J:   I mean, your interpretation is inconsistent with the purpose in Article 2.

MR LANCASTER:   In my submission, not so, your Honour.  The more specific provision about import controls in Article 7 would, on ordinary principles, be read together with Article 2, and Article 2 would not confine the operation of Article 7 in the relevant sense.

EDELMAN J:   Absolutely, but the – Article 7 is the particular purpose, the particular implementation of a much broader scheme underlying the Convention that the Act seeks to give effect to.

MR LANCASTER:   Indeed, your Honour, and we have included some of the travaux in the materials, and I do not propose to take your Honours to it, but your Honours will see, if you wish to review that material, that there was debate about the scope of Article 7 in the context of that overarching objective in Article 2.  Article 7 was limited in terms to museums and similar institutions, but most importantly for the present purposes, Article 7 has an unambiguous temporal operation.  So, in (a):

which has been illegally exported after entry into force of this Convention, in the States concerned.

And then again in the next sentence:

Whenever possible, to inform a State . . . of an offer of such cultural property illegally removed from that State after the entry into force of this Convention –

And then again in (b)(i).  So, that covers both illegal exports and imports, but in each case, explicitly after the entry into force of the Convention.  The Commonwealth Parliament can, of course, choose to legislate to different effect to the Convention, and it did so by expanding the entities or persons subject to the import controls in section 14 – it is any importer, not just the smaller subset of museums and similar institutions.

But the backdrop provided by the Convention, in my submission, is clear that the obligations are forward‑looking, applying not just to imports after the Convention came into effect, but to illegal exports after the Convention takes effect.  Accordingly, the Convention is of interpretative assistance and reinforces the meaning of the text.

Finally, your Honours, can I address briefly on the purpose.  The considerations of text, context and extrinsic material indicate the purpose of the Act in general and section 14 in particular.  It almost goes without saying that the purpose of legislation is not to be derived from any a priori

assumption about the desired reach or operation of the relevant provisions.  It emerges and is apparent from the text and the whole of the statute and from relevant extrinsic materials.

We have addressed this in our written submissions, paragraphs 27 to 32, and advance the submission that the purpose is to be understood as to establish a regime which inhibits the unlawful removal from foreign countries of movable cultural objects which represent an important or irreplaceable part of the country’s cultural heritage.  That purpose, in my submission, is necessarily forward‑looking.  That is, to prevent the future loss of foreign cultural heritage, and is not directed towards the restitution or providing a remedy for past unlawful exportation.

In the Full Court, her Honour Justice Downes at paragraph 76 of her Honour’s reasons for judgment identifies two more specifically described purposes of the legislation.  Can I take your Honours to that, please – paragraph 76.  One is stated to be:

to prevent the importation into Australia of a protected object of a foreign country which did not have the appropriate authorisation issued by that foreign country.  Another purpose was to impose an obligation upon importers to ensure that the requisite export authorisations had been issued by the foreign country.

Those are two purposes which, in my submission, fall within or under the umbrella of the purposes we have identified.  We do not cavil with those statements of purpose and, as indicated, we submit that the purpose of the legislation supports an interpretation of section 14 that is forward‑looking, referring to unlawful exports after the Act was passed.

May it please the Court.

GAGELER CJ:   Thank you, Mr Lancaster.  Mr Johnson.

MR JOHNSON:   Thank you, your Honours.  Your Honours, firstly, the respondent relies upon the analysis of the majority in the Full Court, which it contends to be correct.  In relation to that course, all of our submissions are advanced at present, but I think it might be useful, or most useful, for me this morning to try to focus upon seven or eight main themes of the discussion which has just taken place and to try to answer those directly, rather than taking time specifically addressing and summarising things that have already been put in writing.  Subject, of course, to your Honours’ concurrence, that is the way that I am proposing to proceed.

The first point, your Honours, is in relation to my friend’s submissions at the beginning that focused upon section 14 itself. My friend was describing the paragraphs of section 14(1) using the word alternatives. In our submission, section 14(1) is to be read cumulatively, and for the object to be liable to forfeiture, all three of those paragraphs need to be satisfied.

In relation to “the export”, which is referred to in paragraph (b), well, what the legislature there has in mind is that attaching to the export which has been identified in paragraph (a).  So, there is a unity in these paragraphs.  They are to be read together.  There is not some – the section simply does not, in our submission, set up some strict demarcation between exports which are pre‑commencement and post‑commencement.

The second point that I wish to make, by way of emphasis, is that the expression “has been exported” within paragraph (a) of subsection 14(1) may be accepted as the present perfect tense, but the present perfect can capture any completed act, at least if it is of “present relevance”.  That was the way, in fact, Justice Perram described the present perfect.

For the reasons specifically given by the Full Court, the Commonwealth submits that the words “has been” do not operate to exclude pre‑commencement exports, but rather that the present relevance is supplied by the fact that the particular object is one which needs to be – and which was here found to be – a protected object of a foreign country at the time of import.  So, if you are looking at this at the time of import, one has to be satisfied not just that it was once a protected object, it has to be a protected object of a foreign country with the characteristic that it has been exported from that country.

But the majority, in their reasoning, made clear that the focus of paragraph (a) upon the object being a protected object of a foreign country at the time of importation itself justifies the present perfect tense.  It is not, with respect, correct to say, as the primary judge did, that the present perfect is not given any work to do if the Commonwealth is correct in saying that the section is not limited to pre‑commencement imports.  In relation to that, your Honours, we rely in particular upon what was said by the Full Court majority in its analysis of construction.

The third point, your Honours, is to emphasise that section 14(1) is something which bites, if I can use that expression, at the time of the importation. It is when:

the object is imported –

and it is accepted by the parties that the importation would need to be post‑commencement, but when:

the object is imported –

within the meaning of section 14(1) through, then the provision falls for application and, effectively, what one does in attempting to ascertain whether it “is liable for forfeiture” is to ask, at that point, whether this object which is then imported is, in fact:

a protected object of a foreign country –

that:

has been exported from that country –

and whether that export was contrary to a law relating to cultural property.  If the answers to that are positive, then it:

is liable to forfeiture.

The section could be described as operating prospectively insofar as it requires that post‑commencement import and only bites when there is one, but it bites having regard to past events, or it can permissively have regard to past events in answering (a) and (b).  At the risk of slipping back to the second point just slightly, the circumstance that something is “a protected object of a foreign country” that “has been exported from that country”, those were circumstances which were still present at the time of importation.

In relation to the fourth point, in relation to the majority’s approach to the extrinsic materials, it is plain from the reading of their Honours’ judgment, up to about paragraph 25, that they were not – I am speaking of the majority, of course – in any doubt about the construction of the provision.  They saw it as “clear”, and it was in that context that they observed that examination of the extrinsic material was unnecessary.  But having so observed, they did nonetheless look at the extrinsic material and did not find it to assist the applicant.

I will call this a fifth point, but it is really a subpoint of that.  In relation to the explanatory memorandum, none of the judges in the present case found the explanatory memorandum helpful to the particular construction point which was raised.  In relation to the passages that my friend took the Court to – I will not go through all of them, but in relation to ‑ ‑ ‑

GAGELER CJ:   Mr Johnson, we would normally take a morning adjournment.

MR JOHNSON:   Of course, your Honour.

GAGELER CJ:   I do note that you are up to five of your eight points.

MR JOHNSON:   Yes.  I do not think I have too much longer to go, but I am happy – I do not wish your Honours to be denied morning tea.

GAGELER CJ:   We will take the morning adjournment, thank you.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

GAGELER CJ:   Mr Johnson.

MR JOHNSON:   Yes, thank you, your Honour.  Your Honours, I am just going to briefly go to page 965 of the volume of authorities.

GORDON J:   This is the explanatory memorandum, under tab 30?

MR JOHNSON:   Yes, thank you.

GORDON J:   Thank you.

MR JOHNSON:   I will just draw the Court’s attention to the last part of the paragraph at the top of 965, where it is said that:

Where an object forms part of the moveable cultural heritage of a foreign country and it is has been unlawfully exported from that country and imported into Australia, that object is liable to forfeiture.

Again, the recognition is that it is upon the point of importation into Australia that the object becomes liable to forfeiture.

In relation to the second reading speech – I will call this the sixth point – firstly, we say that that does not ultimately assist the appellant, and the reasons for that are summarised by the majority at 29, and we refer to them in submissions at and about RS42.  To the extent that the primary judge did gain some assistance from them, that assistance was essentially related to the passage that my friend took your Honours to, which uses the expression “line across history”.

If I could also revisit that paragraph, it is on page 936 of that volume, amongst the explanatory material.  The paragraph is the one on 3741 that starts with the word “Finally”.  The Minister says:

Finally, let me stress that the Convention is not concerned with restitution of cultural property taken from this country in the past or brought here in past years from other countries without proper authority.

If I can just pause there, once again, it is the point of importation that this legislation imposes consequences.  Something which is brought here in past years is not liable to forfeiture on the Commonwealth’s construction, but it is the bringing of the object to Australia, not its removal from the foreign country, which is the limiter.  Similarly, when one goes down a little bit further into that paragraph, the Minister says:

it is not the subject of the 1970 Convention or the purpose of this legislation.  Rather, the concern is to draw a line across history to ensure that in future years transfers of important and valuable cultural objects from one country to another take place in a legal and orderly fashion and that sanctions imposed will discourage illicit trafficking in cultural material.

Now, the word “transfer” is not used in section 14 but, again, we would submit that the appropriate understanding or best understanding of that paragraph is the Minister again is focused upon the point of importation into Australia.  Even if that be wrong, that particular paragraph is really no answer to the other matters which the majority took into account in reaching the construction that they did.

The last point that I mention in relation to that is that – my friend touched upon this, but Justice Downes did see assistance in favour of the applicant in relation to the second reading speech, referring in particular to the number of times that the second reading speech speaks of “export authorisations”.  Now, if someone came to Australia with an object which may very well be caught, and they had an export authorisation, that would certainly assist them as a matter of evidence, but the expression “export authorisation” does not occur in section 14 of the Act, and the model which is provided works differently, as we have seen.  So, given the differences between Article 7 and section 14, including in relation to export authorisations, that again just does not really assist the appellant.

With respect to the Convention itself, both Justice Perram and the majority in the Full Court found that the Convention was not ultimately helpful in the construction of the provision, largely because of these sorts of differences.  Justice Downes thought that it was helpful, but again, because of the reference to “export authorisations”, which, as I understand, she thought may increase the weight, as it were, of the second reading speech in that respect.

But our submission is that, for the reasons given by the majority – and we have summarised the references in, I think, paragraph 7(c) of the outline that we provided this morning, but particularly for the reasons given by Justice Perram and by the majority, the Convention ultimately does not assist in the particular point of construction which confronts the Court.

Finally, although I think I have already said it, Article 7 is providing a model for meeting the Convention’s objectives. The objective that Justice Edelman referred to in Article 2 is really sought to be met by Australia in a different way, and Australia is focusing upon the regime which is prescribed in section 14(1).

In relation to section 14(2), the majority in the Full Court gave particular attention to section 14(2), and found that it aided their interpretation of 14(1), it did not hurt that interpretation at all.  And 14(2) actually makes quite express that the concern of the first paragraph, (a), is upon the object being a protected object at the time of importation, and that is something which itself justifies the use of the present perfect.

Unless there is anything from your Honours, those are my submissions.

GAGELER CJ:   Thank you, Mr Johnson.  Mr Lancaster.

MR LANCASTER:   Just one proposition in reply, your Honours.  My learned friend submitted that the present perfect tense in 14(1)(a) is accommodated or has operation in that the Act requires a protected object of a foreign country at the time of importation.  In my submission, it is part of the phrase:

a protected object of a foreign country –

that it has that characteristic at the time of importation, that the words:

has been exported from that country –

are not explained on that analysis.  In other words, in my submission, it does not answer our submission about redundancy to proffer that as the explanation for the use of the present perfect tense in 14(1)(a).

May it please the Court.

GAGELER CJ:   Thank you, Mr Lancaster.  The Court will consider its decision in this matter and will adjourn until 11.00 am on Monday, 16 June.

AT 11.40 AM THE MATTER WAS ADJOURNED