FEDERAL COURT OF AUSTRALIA

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

ORDERS

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 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.

REASONS FOR JUDGMENT

BANKS-SMITH AND ABRAHAM JJ:

1    An archaeological artefact (the Artefact) purchased by the respondent was shipped to Australia on or about 24 June 2020. Upon its entry into Australia, the Artefact was intercepted by officials under the Customs Act 1901 (Cth) and retained by them until it was seized by an inspector appointed under the Protection of Movable Cultural Heritage Act 1986 (Cth) (the Act). At the time of its seizure, it was not in dispute that the inspector held reasonable grounds for believing the Artefact to be a “protected object”: s 34 of the Act. An inspector can only seize a protected object of a foreign country if they believe on reasonable grounds that the Commonwealth has received from the Government of the country a request for the return of the object: s 41(1) of the Act.

2    The respondent successfully applied to this Court, pursuant to s 37 of the Act, for an order that the object is not liable to be forfeited. Although the primary judge concluded that the Artefact was a protected object that was removed unlawfully from Bolivia no later than the 1950s, his Honour concluded that it was not liable to forfeiture under s 14 of the Act.

3    This appeal turns on the proper construction of s 14 of the Act, being the power to forfeit a protected object. We have had the benefit of reading the draft reasons of Downes J, and we adopt the matters of background summarised therein. However, we are unable to agree with her Honour’s conclusion as to the construction of s 14.

4    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

5    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.

…

6    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.

7    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”.

8    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].

9    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.

10    Neither party contended for the second construction and accordingly, the focus of the appeal was on the correctness of the first construction.

11    With respect to the primary judge, we do not agree with his Honour’s construction.

12    The starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408.

13    Section 14(1) is directed to forfeiture of a protected object in specified circumstances. Section 14(2), using relevantly similar language, makes the importation of such an object a criminal offence (an indictable offence: s 46 of the Act) in those same circumstances (with the addition of a fault element). We will return to s 14(2) below. Suffice to say for present purposes, given the text of the provisions, it would be expected that the provisions (and relevantly the circumstances in subsections (a) and (b) in ss 14(1) and (2)) would be construed consistently.

14    Both ss 14(1) and 14(2) are predicated on the act of importing an object; the provisions being in the present tense: ss 14(1)(c) and 14(2) of the Act. The circumstances identified under the Act in which an item imported can be forfeited pursuant to s 14(1), or where the importation is capable of amounting to a criminal offence in s 14(2), are specified in ss 14(1)(a) and (b), and ss 14(2)(a) and (b), respectively. In respect to ss 14(1)(a) and 14(2)(a), it is that the object is a protected object that has been exported from a foreign country. In respect to ss 14(1)(b) and 14(2)(b), it is that the export was prohibited by a law of that country. These are current circumstances which exist at the time of the import. In the criminal offence provision, these are the physical elements of the offence: see ch 2 of the Criminal Code; s 6A of the Act. For the criminal offence, there is the additional fault element of knowledge of each of the circumstances. The words of the provision are plain.

15    There is one further limitation in the Act in relation to the operation of s 14. An inspector cannot seize a protected object of a foreign country (or exercise any power under Part V of the Act, directed to enforcement) 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: s 41(1) of the Act. Nor can proceedings for a contravention of s 14 be instituted unless the Commonwealth has received from the Government of the country a request for the return of the object: s 41(2) of the Act.

16    The purpose of the Act, as evident from its terms, is directed to the protection of movable cultural objects. This is achieved inter alia, by making it unlawful to import into Australia such objects, and making them liable to forfeiture in the circumstances described above. It also makes unlawful the export of protected objects from Australia. Based on the text of the Act, the critical time for the operation of these provisions is the time of import into, or export from, Australia.

17    The Act does not expressly provide any time limit on when the imported object, for the purposes of s 14, was exported from the foreign country. It would have been very easy to specify that s 14 only applied to exports after the date of enactment. Such clarity would be expected if that was the intended application of the Act.

18    That carries particular force where the primary judge’s construction is based almost entirely on the Parliament’s use of the present perfect tense in s 14(1)(a), and where his Honour considered that the meaning of the terms in s 14 were ambiguous, but 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”: PJ at [358]. In other words, the primary judge concluded that the use of the present perfect tense was a carefully chosen approach. The present perfect tense is an unusual artifice to use to limit the scope of s 14 to post-enactment exports, given the primary judge’s conclusion that the meaning of the text is not clear: PJ at [362].

19    The absence of any time limit is also in a context where it may readily be accepted that it is common knowledge that a very significant number of objects which would satisfy the definition of protected object would have been (illegally) exported from countries prior to 1987 (when the Act came into effect). We note also that there is no suggestion in the legislation that the object must be exported directly from the foreign country of origin to Australia for the Act to apply. Indeed, the parties accepted that the object could have been imported into Australia from elsewhere, having been taken or exported from its country of origin at an earlier time. Nor is there anything in the Act which confines its application to exports from particular countries.

20    As explained earlier, the primary judge concluded that the use of the present perfect tense in s 14(1)(a) indicates that the Parliament was assuming a connection between the completed act of export and the present, to which s 14(1) is speaking: PJ at [356]. His Honour accepted that the connection could be provided on the construction that the export was a continuing event, but rejected that approach because that construction involves redundancy: PJ at [357]-[358]. This redundancy is said to be because one considers the terms of s 14(1)(a) knowing the item has been imported into Australia. It was concluded that “reading ‘has been exported’ in s 14(1)(a) so that it reveals a connection to the present constituted only by the fact that the protected object continues still to be in a state of being exported would involve redundancy”: PJ at [358]. To be more direct, the conclusion was that s 14(1)(a) would have no work to do. To similar effect, the respondent submitted on the appeal that there would be no basis for a separate subsection (a) in s 14(1) if the meaning is as contended by the Commonwealth. A consideration of the provision in context reflects that is not so.

21    The parties focussed their arguments, in relation to s 14(1)(a), on the concept of an object’s “export”. This is also apparent in the primary judge’s reasoning, including that as to redundancy, referred to immediately above. However, as reflected by the terms of the subsection, that is not the purpose of the circumstance in s 14(1)(a). The text, read in its context, reflects that the focus of the subsection is on the fact that the object is a protected object. This is stark in the text of s 14(2)(a) of the criminal offence, which is the provision analogous to s 14(1)(a). Little attention was paid to subsection (2), but given the structure of the provision, it is plainly relevant. It is part of the context of the provision and legislative regime.

22    Section 14(2) requires that the object imported “is a protected object of a foreign country that has been exported from that country” (emphasis added). The plain reading of this text reflects that the purpose of s 14(2)(a) is directed to the object being a protected object at the time of the import. Section 14(2)(b) then requires that “the export was prohibited by a law of that country relating to cultural property”. That is, s 14(2)(b) is directed to when the object was exported. For the criminal offence, it must be established that the person has knowledge of each of ss 14(2)(a) and (b); that is, knowledge it is a protected object and that its export was prohibited (at the time of its export from its country of origin). One can readily conceive of circumstances where knowledge that the object is protected at the time of import could be established, but knowledge by the importer of the unlawfulness of the export of the object (at the time of export) is lacking. It could also be conceived that an object, at the time of import into Australia, may not be a protected object (where it may have been at an earlier time).

23    This illustrates the differences between subsections (a) and (b) in ss 14(1) and (2), and the basis for the existence of both. It also addresses the conclusion of the primary judge that s 14(1)(a) has no work to do (unless construed as his Honour concluded) as it is known that an object has been exported because the consideration of s 14 is in the context where the object has been imported into Australia. The act of importing does not establish that it is a protected object (the text of s 14(1)(a)). As referred to above, the parties properly accepted that it is expected that ss 14(1)(a) and 14(2)(a) would be construed consistently. There is no redundancy in s 14(1)(a).

24    Sections 14(1)(a) and 14(2)(a) are directed to the character of the object at the time of import. It must be established that the object is a protected object. Those subsections are directed to the time of import. The use of the present perfect tense is explicable in that context.

25    The text of s 14(1), considered in its context, and given its purpose, provides no basis to limit its application to exports from a foreign country after the enactment of the legislation. Provided that, at the time of importation, the circumstances described in [14] above are established, the object is liable to be forfeited.

26    For completeness, it is appropriate to address the alternative construction postulated by the primary judge, as referred to above at [7] and [9]. As explained above, neither party contended for the alternative construction. However, the fact that the primary judge recognised an alternative construction which permits an export from a foreign country occurring before 1 July 1987, tells against his Honour’s conclusion that the use of the present perfect tense in s 14(1)(a) connotes an intention that the object must have been exported on or after 1 July 1987 (excluding all exports which occurred before 1 July 1987). We note that the alternative construction “requires the export to be sufficiently connected to an import occurring on or after 1 July 1987 such that together they constitute a ‘transfer’”: PJ at [378]. “Transfer” is a term that does not appear in the text of the provision, but rather appears in the second reading speech, as noted below. The primary judge appears to read into the Act a concept not in its text. As already stated, the object does not need to be transferred directly from its country of origin. That construction reflects an artificially confined view of the purpose of the Act.

27    Given the construction of s 14 is clear, the extrinsic material is unnecessary to consider. That said, the material does not assist the respondent or tell against the construction explained above.

28    The primary judge correctly concluded that the terms of the 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 (entered into force 24 April 1972) (the Convention) are of no assistance. Although it is referred to in the explanatory memorandum, the Act does not refer to or adopt the Convention, and s 14 is not linked to Australia’s accession of the Convention: PJ at [374]. Indeed, Australia did not accede to the Convention until 1990, three years after this legislation was enacted: see PJ at [374]. As described above, the Convention was opened for signature on 14 November 1970 and entered into force on 24 April 1972. Nor is there anything in the Act which confines its application to exports from signatory countries. Moreover, as the primary judge correctly observed, s 14(1) is in wider terms and has an obviously broader application than the terms of Article 7 of the Convention. For example, the Convention is only concerned with the position of museums and similar institutions acquiring cultural property, whereas the scope of s 14 is plainly much broader. We also note that the exercise of powers by an inspector to relevantly seize a protected object under Part V of the Act is not linked to the absence of an appropriate export certificate, as referred to in Article 6 of the Convention, but rather to the circumstance where the inspector believes that the Commonwealth has received a request for the return of the object. The primary judge concluded that “[t]he terms of the Convention and the Act persuade me that the Parliament was seeking to put in place a regime dealing with the import and export of items of cultural heritage which was not connected to the operation of the Convention”: PJ at [375]. We agree.

29    Although the primary judge considered that the second reading speech provided “some support, limited perhaps”, to the respondent’s contention that s 14(1)(a) was not intended to catch exports of goods that occurred before 1 July 1987: PJ at [369]-[370], there is nothing in the second reading speech (recited at [365] and [371] of PJ; and see page 3741 of the second reading speech) contrary to the construction explained above. As the second reading speech reflects, the Act is not about restitution. That is, anything imported into Australia, or exported from Australia, before the Act, is not caught by the provisions. The second reading speech relates to import control. It is directed to the time of import, being after the Act was enacted. There is nothing in the second reading speech, properly read, that suggests the provisions are designed to be limited to objects exported after the date of enactment, which are then imported into Australia. That would significantly confine the operation and effectiveness of the Act. Nor, with respect to the primary judge, does the reference to “transfers” in the speech, create such a limitation. We note, as referred to above, that the Act applies to objects which are imported into Australia from a second foreign country, and at a time later than the original export from the foreign country of origin. It is to be recalled that the purpose of the Act evident on the text is the protection of movable cultural objects. The offence and forfeiture provisions are aimed, inter alia, to limit the black-market trade of such objects.

30    In any event, the meaning and effect of “the text of the statute…are not to be displaced by statements in secondary materials”: Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645 at [32]; North Australian Aboriginal Justice Agency Limited v Northern Territory of Australia [2015] HCA 41; (2015) 256 CLR 569 at [229].

31    Finally, it remains to address some specific arguments advanced by the respondent.

32    As apparent from the respondent’s written submissions, the respondent’s position is largely premised on the suggestion that s 14 of the Act should be construed on the basis that the legislation is based on the Convention. That is not how one approaches the question of statutory construction. In any event, we agree with the primary judge that the Act does not pick up the Convention and its provisions (such as s 14) are broader than the terms of the Convention.

33    In so far as the respondent relies on the presumption against giving a statutory provision a retrospective effect, that submission was correctly rejected by the primary judge: PJ at [348]–[349]. The respondent’s reliance on Director of Public Prosecutions of the Commonwealth of Australia v Keating [2013] HCA 20; (2013) 248 CLR 459 at [48] is misplaced. The construction referred to above, evident on the plain text of s 14, involves no element of retrospectivity.

34    The respondent also submitted that the Commonwealth’s construction would lead to results that are inconvenient or unreasonable in that it would require a potential importer of an object to identify not just when an export occurred, but also whether an export at that time (however historically distant) complied with the country of origin’s laws relating to cultural property. That submission cannot be accepted. It would be expected that an importer of an object likely to be a protected object would attempt to satisfy themselves of its provenance to avoid any risk of forfeiture. A failure to do so risks forfeiture if the object is requested by the foreign country, and the Commonwealth can establish the conditions in s 14 are satisfied.

35    The respondent’s reliance on R v Heller, Zango and Kassam (1983) 27 Alta LR (2d) 34 is also misplaced. The primary judge correctly concluded that case is of no assistance in construing s 14: PJ at [379]. That case is based on the Cultural Property Export and Import Act 1975 (Can) (Canadian Act), which is in different terms to the Act. The Canadian Act includes s 31(2) which provides that “[f]rom and after the coming into force of a cultural property agreement in Canada and a reciprocating State, it is illegal to import into Canada any foreign cultural property that has been illegally exported from that reciprocating State”. This has been held to require that the illegal export had to occur after Canada had entered the relevant international convention. There is no relevant analogy between s 31(2) of the Canadian Act and s 14 of the Act, noting that the Act commenced and had effect prior to Australia’s accession to the Convention.

36    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

37    For the reasons given, we are of the view that the appeal should be allowed, with costs.

38    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.

Associate:

Dated:    5 July 2024

REASONS FOR JUDGMENT

DOWNES J:

Synopsis

39    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).

40    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.

41    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.

42    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.

43    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].

44    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.

45    For the following reasons, the appeal should be dismissed.

The reasons of the primary judge

46    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.)

47    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.

48    After rejecting certain submissions advanced by the respondent concerning retrospectivity, the primary judge found that reading the provision as the Commonwealth contends would entail that ‘has been exported’ means only ‘was exported’ and identified that the Commonwealth’s submission must therefore confront the problem of the superfluity which its interpretation implied.

49    In summary, then, the primary judge:

(1)    identified that s 14(1)(a) has been expressed in the present perfect tense whereas s 14(1)(b) has not;

(2)    the avoidance of superfluity in statutory construction is a well-recognised value;

(3)    the use of the present perfect tense must therefore be given some work to do.

50    The primary judge then explained that:

(1)    s 14(1)(a) is connected to the present because the use of the present perfect tense assumes the existence of such a connection to the present: J [352];

(2)    the present perfect tense indicates the completion of an event in the past where that completion has some relevance to the present: J [353].

51    If one reads s 14(1) as one sentence, rather than broken into subsections, it states as follows:

Where a protected object of a foreign country has been exported from that country, the export was prohibited by a law of that country relating to cultural property, and the object is imported, the object is liable to forfeiture.

(Emphasis added.)

52    Thus, the words in s 14(1)(c) provide the context for understanding the words in s 14(1)(a). At J [354] and [355], the primary judge experimented with different formulations of words in sentences to demonstrate the manner in which the context can affect the understanding of words used in the present perfect tense.

53    Turning then to s 14(1), the primary judge stated at J [356] that:

The problem of interpretation which arises is therefore the identification of the connection to the present which the present perfect tense in s 14(1)(a) assumes as a matter of ordinary speech. Thus, s 14(1)(a) indicates that the speaker, here the Parliament, was assuming a connection between the completed act of export and the present to which s 14(1) is speaking. That present is the time of importation referred to in s 14(1)(c) which follows from its use of the present tense and the fact that it is at the moment of importation that the liability to forfeiture attaches. The difficulty then lies in identifying what this assumed and hence necessarily unarticulated connection is. Without doubt, the connection is supplied by the context in which the statement in s 14(1)(a) is made just as it would be in the case of any ordinary speech act.

54    The first possibility which the primary judge explored at J [357] was that the connection is provided by the fact that the protected object continues to be in the state of being exported in the sense that, since its exportation, it has not been returned to the foreign country from which it originated. However, his Honour rejected that construction as it would involve redundancy, stating at J [358]:

However, I do not think that such a reading is open in the case of s 14(1)(a). If s 14(1)(a) were read in isolation then it might be useful to know not only that the protected object had been exported from the foreign country but also that it had not in the intervening period since its export been returned to that country. However, it is not to be read in isolation in that fashion. In particular, the reader of s 14(1)(a) comes to its terms knowing already that the protected object has been imported into Australia for it is that event which triggers its potential liability for forfeiture under s 14(1). Thus reading ‘has been exported’ in s 14(1)(a) so that it reveals a connection to the present constituted only by the fact that the protected object continues still to be in a state of being exported would involve redundancy. The formal nature of a statute permits the inference to be drawn that its words were carefully chosen and would not involve redundancy.

55    At J [359], the primary judge identified another possible connection as follows:

Another possible connection could arise from the identity of the speaker and a consideration of the times at which that speaker could insist on the fact that the object had been exported from the foreign country. On this view, the connection with the present would be afforded by the fact that the act of exportation happened after the Act became law on 1 July 1987. If this evening Tom’s father says to Tom ‘If you have finished your homework then you can watch Raiders of the Lost Ark on Netflix’ he is not intending to grant Tom a privilege because he did his homework three weeks ago. He is instead intending the statement to apply to events taking place this evening. This view of s 14(1)(a) would support the Applicant’s position that the earliest moment the Act can be taken to have spoken is 1 July 1987. Here the act of exportation corresponds with Tom finishing his homework, the import and possible forfeiture of the object corresponds with Tom being permitted to watch Raiders of the Lost Ark on Netflix and the time at which the Act speaks corresponds with Tom’s father talking about events occurring this evening.

(Emphasis in original.)

56    At J [360], the primary judge identified a third and final possible connection as being provided by the relationship between the act of import in s 14(1)(c) and the act of export in s 14(1)(a). His Honour considered that, on this view, the fact of the object’s importation has some connection with its exportation, and said that:

The particular nature of this connection need not be precisely identified but the simplest case would be where the exportation of an object and its subsequent importation are connected by the same means of carriage, i.e., where an object is shipped out of the country of origin directly to Australia.

(Emphasis added.)

57    The primary judge was unable to conceive of any other interpretations of s 14(1)(a) which accommodate its use of the present perfect tense: J [361].

58    Having rejected the first possible connection as referred to above and taking into account the Commonwealth’s construction, the primary judge identified the ‘candidates’ for the interpretation of s 14(1)(a) as follows (at J [361]):

(1)    ‘has been exported’ means ‘was exported’ (with its difficulty of superfluity in the use of the present perfect tense) (being the Commonwealth’s construction below and on the appeal);

(2)    it requires the export to have occurred on or after 1 July 1987 (being the respondent’s construction below and on the appeal);

(3)    it does not precisely say when the act of export must have occurred but does require it to have some connection with an act of importation which itself occurs on or after 1 July 1987 (being a construction which neither party advanced below or supported on the appeal).

59    At J [362], the primary judge then observed that, “It can scarcely be said that the meaning of s 14(1) is clear. This is therefore one of those occasions upon which it is legitimate and, indeed, useful to consult secondary materials...”.

60    The primary judge considered the second reading speech, the explanatory memorandum and the 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 (entered into force 24 April 1972) (the Convention).

61    The primary judge did not consider that the Convention or the explanatory memorandum were of assistance: J [375]–[376].

62    The primary judge also observed that he would ‘not describe the second reading speech as a powerful interpretative tool in this context’ and that it provided ‘limited support’ or ‘some support’ for a construction that s 14(1)(a) was not intended to catch exports of protected goods which had occurred before 1 July 1987 (J [369]–[370], [377]) or ‘some support’ for a construction of s 14(1)(a) in which the act of exportation must be sufficiently connected with an act of importation (itself occurring on or after 1 July 1987) such that together they constitute a ‘transfer’: J [377]. His Honour also concluded at J [377] that the second reading speech does not support the Commonwealth’s construction that s 14(1)(a) also applies to any export of an object which occurred before 1 July 1987.

63    The primary judge’s ultimate findings were as follows:

(1)    “I do not accept the Commonwealth’s submission which renders the use of the present perfect tense otiose. As between the [respondent’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 [respondent’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”: J [378];

(2)    “Since it is not in dispute that the [artefact] had been exported from Bolivia by the 1950s and that the act of importation was entirely disconnected from the act of exportation it follows that s 14(1) cannot apply to it. The [respondent] is therefore entitled to succeed”: J [380].

Grounds of appeal

64    The grounds of appeal do not identify any error in the primary judge’s reasons concerning the use of the present perfect tense in s 14(1)(a), the principles relating to the usage of the present perfect tense, the identification of the connection to the present which the present perfect tense in s 14(1)(a) assumes, and the different possible connections to the present having regard to the context provided by s 14(1)(c). Nor is any error identified concerning the primary judge’s decision to have regard to the secondary materials (including the reason for that decision) or the conclusions reached by him in relation to those materials.

65    Rather, the grounds of appeal contain a bald assertion of misconstruction of the legislation and error by the primary judge in rejecting the Commonwealth’s construction, but without identifying the error in the primary judge’s reasons with any precision. It was therefore necessary to attempt to identify the Commonwealth’s asserted errors by the primary judge through its submissions, although it must be said that this was not straightforward.

Approach to construction

66    The general principles of statutory construction are well-settled. As identified in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (McHugh, Gummow, Kirby and Hayne JJ):

… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.

67    Where a range of potential meanings are available to be chosen from, “none of which is wholly ungrammatical or unnatural… the choice ‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [38] (Gageler J). Central to that identification is the context and purpose of the provision: see SZTAL at [14] (Kiefel CJ, Nettle and Gordon JJ).

The asserted errors

Asserted error in relation to use of extrinsic material

68    The Commonwealth submits, both orally and by its written submissions, that the meaning of s 14(1) is clear, and that it is not ambiguous or obscure (contrary to the finding at J [362]). As a consequence, it submits to the effect that s 15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth) does not apply and that the primary judge erred in having regard to extrinsic material.

69    However, I disagree: s 14(1) is ambiguous, and its meaning is not clear. If Parliament had intended s 14(1) to do no more than refer to an object which had been exported from a foreign country unlawfully, then its decision to delineate between the export itself with the use of the present perfect tense in s 14(1)(a) and the unlawfulness of that export in s 14(1)(b) cuts across that so-called clear meaning of s 14(1) for the reasons explained by the primary judge. For this reason, there was no error by the primary judge in having regard to extrinsic material.

70    The explanatory memorandum refers to the Convention in relation to what would become s 14 of the Act, but, contrary to the respondent’s submissions, I agree with the primary judge that it is of little interpretative assistance.

71    Notwithstanding that the primary judge also eschewed the assistance to be derived from the Convention, both parties made submissions about the Convention, with the Commonwealth placing particular reliance on the primary judge’s reasons at J [374]–[375] which concerned Article 7 of the Convention (which is reproduced at J [373]). Conversely, the respondent sought to press reliance on Article 7 in aid of its posited construction, focussing on its repeated references to actions being taken in relation to exportation and importation which occurs after entry into force of the Convention.

72    The following articles of the Convention also deserve particular attention:

Article 1

For the purposes of this Convention, the term “cultural property” means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories: …

Article 6

The State Parties to this Convention undertake:

(a)    to introduce an appropriate certificate in which the exporting State would specify that the export of the cultural property in question is authorized. The certificate should accompany all items of cultural property exported in accordance with the regulations;

(b)    to prohibit the exportation of cultural property from their territory unless accompanied by the above-mentioned export certificate;

(c)    to publicize this prohibition by appropriate means, particularly among persons likely to export or import cultural property.

73    By Article 6, parties to the Convention agreed to introduce a regime which authorised the export of cultural property, and which included a process whereby a certificate would be issued where authorisation was granted. Such a regime would necessarily be one which was introduced after the date of entry into, and adoption by each party of, the Convention.

74    Turning then to the second reading speech, the following extracts are noteworthy, and some of them do not appear to have been brought to the primary judge’s attention:

The purpose of this Bill is to protect Australia’s heritage of cultural objects and to extend certain forms of protection to the cultural heritage of other nations. As a result of these steps, Australia will be able to accede to the 1970 United Nations Educational, Scientific and Cultural Organisation Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property.

…

In recent decades a thriving international market has developed with high prices being paid for rare objects. In some instances systematic looting of cultural treasures is known to be organised by black market operators in the big buying centres. The loss of material has reached crisis level in certain countries, particularly in the Third World, which has already suffered depletion at the hands of explorers, colonists, traders and missionaries.

…

Fifty-three nations have now become parties to this Convention, which imposes treaty obligations to return important cultural objects illegally exported from other parties.

…

Most of the protective measures set out in the 1970 Convention have long been practised in Australia, both at Commonwealth and State levels.

…

In deciding how to approach the matter of accession to the 1970 Convention the Government has taken the view that the Commonwealth should not attempt to subsume or replace arrangements already in hand at State or local level. However there are certain steps which must be taken at Commonwealth level before accession and those steps are the subject of this Bill.

…

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. … 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.

…

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. 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. 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.

(Emphasis added.)

75    The emphasised parts of the second reading speech refer to the requisite export authorisation or authorisations from, or issued in, the country of origin. In the context of the repeated references to the Convention in the second reading speech, I construe the emphasised parts to be a reference to the obligations under Article 6, and the authorisations are a reference to the certificate which is described in Article 6.

76    This means that one purpose of the proposed legislation was 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. In circumstances where the regime which encompassed such authorisations was introduced by the Convention, such language looks to the future by reference to the regime required to be introduced under the Convention and is not the language that one would expect to see if Parliament intended to prevent the importation of cultural objects which were unlawfully exported prior to the Act being passed.

77    It follows that the Convention and the second reading speech support the respondent’s construction of s 14(1) of the Act.

78    For these reasons, I respectfully disagree with the primary judge’s conclusion at J [375] that the Convention is not of assistance. That is because of the apparent link between the authorisation regime required to be introduced by the Convention and the references to the export authorisations in the second reading speech.

79    In any event and contrary to the Commonwealth’s submissions, it follows that the primary judge’s critical conclusions at J [377] were correct.

Asserted errors in relation to construction of s 14(1)(a)

80    The Commonwealth submits that:

[A]ny necessary connection with the present (assuming without admission that there is one) in s 14(1)(a) is met by the object, being a protected object, viewed at the time of importation, still being one that “has been exported from” Bolivia”…The tense of a [sic] s 14(1)(a) thus does not stand in the way of s 14(1)(a) applying to the Artefact – and instead supports that conclusion. In addition, the fact that “has been” is used in s 14(1)(a) and “was” used in s 14(1)(b) does not lead to any different result and is in this case an immaterial distinction. Indeed, those two expressions can be no more than different ways of conveying the same idea…

81    This appears to be a submission that the primary judge erred when finding at J [351] that the Commonwealth’s interpretation implied superfluity and at J [358] that “reading ‘has been exported’ in s 14(1)(a) so that it reveals a connection to the present constituted only by the fact that the protected object continues still to be in a state of being exported would involve redundancy”. However, there is no error by the primary judge in this regard. If an object is being imported, then it is trite that it must have been exported from a foreign country, and that this remains the position at the time of importation. On that construction, s 14(1)(a) would be redundant, as found by the primary judge.

82    The Commonwealth’s submissions continue:

If at the time of importation, when the sub-section comes to be applied, the object is (still) one that “has been exported from” the relevant country (at a time when its export was illegal – so that s 14(1)(b) is also met), it does not matter if the export was prior to the commencement of the Act. That is because, in either case, examined at or from importation, the object is one that was and still is “exported from” a country and “the export was prohibited by a law of that country relating to cultural property”, with the result that paragraphs (a) and (b) will be satisfied.

If goods once exported from a country at a time when their export was illegal are subsequently returned to that country without ever being imported into Australia, s 14(1) could not be satisfied. That is itself a reason why there is no redundancy as suggested by his Honour in the quote at the end of paragraph [15], above. Also, if those same goods are then exported again from that country, after any laws making export of them illegal are repealed, and then come to be imported into Australia, s 14(1) again could not be satisfied…

83    By this submission, the Commonwealth seeks to combine s 14(1)(a) and s 14(1)(b) to contend that s 14 applies to the importation of objects which, as at the time of their importation, have the status of objects which have been exported unlawfully, being a status which continues to exist as at the time of the importation. On this thesis, such a construction thereby provides the connection with the present which the present perfect tense indicates is required such that it therefore excludes objects which were unlawfully exported but then returned to the foreign country, before being exported again lawfully.

84    However, there is no indication, whether in the Act or in the secondary materials, that Parliament drafted s 14(1)(a) using the present perfect tense for the purpose of excluding objects which had been the subject of an unlawful export at one time, but which had later been exported lawfully.

85    Instead, such a construction is, with respect, a contrived one which appears intended to meet the careful exposition of the principles of grammar and statutory interpretation in the judgment and designed to avoid superfluity by seeking to identify a purpose for Parliament’s use of the present perfect tense in s 14(1)(a).

86    That the Commonwealth’s construction of s 14(1) cannot be the correct one is fortified by the words used in, and the proper construction of, s 14(2) of the Act. That provision states:

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.

87    It was common ground on the appeal that the relevant aspects of s 14(1) have the same meaning as s 14(2), which also uses the present perfect tense in s 14(2)(a). By s 14(2), a person commits an offence if they have certain knowledge concerning the object which they import. On the Commonwealth’s construction, a person could not import an object if they knew that the object is a protected object of a foreign country and that it has been exported from that foreign country at any time in the past, being at a time when the export was prohibited and the object’s status as a prohibited export continues. These last words are not expressed in s 14(2) but that would be the effect of the Commonwealth’s posited construction of s 14(1).

88    Thus, on the Commonwealth’s construction, a person wishing to minimise the risk of being charged with an offence under s 14(2) of the Act would be required to undertake a significant amount of work. As submitted by the respondent, it would require a potential importer of an object – which may have been exported from a country of origin many decades or even centuries before the implementation of the Convention and the commencement of the Act – to identify not just when an export occurred (which could be any time in history), but also whether an export at that time (however historically distant) complied with the country of origin’s laws relating to cultural property. They would also need to identify that the export in question was the most recent export of the object from its country of origin. Finding answers to these questions could prove very difficult, if not impossible. And expecting someone other than a legal scholar to be able to identify and then understand the applicable laws – particularly in countries where local legislation, such as in this case, may go back some 120 years or more, and where that legislation may not be available in English – is an inconvenient result in the context of a potential penal sanction, and an unreasonable and improbable outcome.

89    It is no answer for the Commonwealth to say that it would bear the onus of proving that an importer had the relevant knowledge. So much may be accepted. However, a law-abiding importer would want to take all necessary steps to ensure that it is not exposed to an allegation that an offence has been committed.

90    That the steps identified above go far beyond that which Parliament contemplated is confirmed by the reference in the second reading speech to the obligations to be imposed on importers by the proposed Act to ensure that the cultural object being imported is the subject of a requisite export authorisation issued in the country of origin, being a plain reference to the authorisation required by the regime imposed by Article 6 of the Convention. That reference does not encompass engaging in the type of conduct referred to above which, depending on the object, could prove to be elaborate, expensive and with no certainty that a result either way could be achieved.

91    Such a construction is not the one which best achieves the purpose of the Act. This conclusion is consistent with the statements in the second reading speech, as contained in the final paragraph of the extract above, which are to the effect that the restitution of cultural property is not the purpose of the Act and that the concern of Parliament 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. These statements are necessarily looking to conduct which will take place in the future and is consistent with Australia implementing the regime contemplated by Article 6 of the Convention.

92    A separate complaint by the Commonwealth about the primary judge’s construction is that it “impermissibly” adds words to s 14(1)(a) which are not contained in the section (being the words “after the commencement of the Act” or similar) and that, if such a limitation had been intended, it could easily have been expressed. However, there are three responses to this submission which explain why it cannot be accepted.

93    First, the primary judge’s construction of s 14(1)(a) arises from the proper construction of the words “has been exported” which were selected by Parliament instead of the word “was”. As found by the primary judge, these words indicate a difference between the temporal questions posed in ss 14(1)(a) and (b), and the use of the present perfect tense in s 14(1)(a) must be given some work to do. This means that there is no need to add any additional words to s 14(1)(a); rather, the construction is of words which are already contained in the section.

94    Second, the Commonwealth accepts that the proper construction of s 14(1)(c) is that it applies to the importation of objects which occurs after the commencement of the Act, and yet the words “after the commencement of the Act” do not appear in that section. Like s 14(1)(a), additional words do not need to be added because it involves the construction of words which are already present by reference to their tense.

95    Third, the Commonwealth’s construction would arguably require the addition of the words “at any time” after the word “exported” in s 14(1)(a) if, as the Commonwealth submits, Parliament intended to introduce a regime which exceeded that contemplated by the Convention (which itself was only forward looking). Had this been intended, it could easily have been expressed, but it was not.

Conclusion

96    For these reasons, it is my view that the respondent’s construction of s 14(1)(a) best achieves the purpose of the Act. It follows that no error in the judgment has been shown by the Commonwealth and I would dismiss the appeal.

Associate:

Dated:    5 July 2024