Reconstructing the Role of Cultural Significance in the Protection of Movable Cultural Heritage Act 1986 (Cth)

Abstract

This thesis proposes a reconstruction and reconceptualisation of the cultural significance provisions of the Protection of Movable Cultural Heritage Act 1986 (Cth). It takes the form of a critical study of the role, function and legal effectiveness of these provisions, and proposes the development of new understanding of what is involved in the construction of cultural significance by law. This thesis is being carried out in both the conceptual and practical domain. However, it is neither a theoretical study nor an exercise in doctrinal exegesis on its own, but relies on both to undertake a practical and functional study into the operation of this legislation and its practices. By drawing on the insights of cultural legal studies and museums studies in which to critically examine the law and its practices, it may be characterised as an intersectional and interdisciplinary study that provides an exchange between law and the policy and practices of the field with which it is engaging. The cultural significance provisions of the Protection of Movable Cultural Heritage Act 1986 (Cth) are used to decide whether culturally significant objects should be kept in Australia for the benefit of the national interest. If an object is 'culturally significant enough', it will be refused an export permit. Because the legislation intrudes on the rights of property owners, decisions to refuse export permits may be reviewed by the Administrative Appeals Tribunal ('the AAT'). However, this thesis argues that the interpretation of the cultural significance provisions by the AAT has reconstructed their meaning into existing legal forms and categories, by imposing law's analytical conception of objects. This method analytically separates the physical manifestation of the object from the discursive factors on which its cultural significance is based. As a result, the cultural significance provisions cannot effectively explain what makes an object culturally significant, in particular when a physically insignificant, but highly culturally significant object has to be tested against these provisions. As a result the conceptual basis on which the legislation rests is in an unsatisfactory state. At one level, the problems with the interpretation of the cultural significance provisions are, in part, derived from the tension between the market and the national interest that characterises this area of law. The clash between the market and national interest was at the forefront of the policy debates surrounding the introduction of the legislation into Australia. A case study shows how political and commercial pressures may influence decision-making when no criteria exist to decide whether objects are culturally significant or not. This case study considers how paintings and other fine art objects are dealt with under the cultural significance provisions, focussing on a dispute about the protection of contemporary indigenous art that entered the public arena in 1999, which leaves the impression that cultural significance decision-making operates in a vacuum that will allow for any outcome that may be commercially or politically palatable. At a more prosaic level, this study reveals that fundamental problems exist in the practical functioning of the legislation and its administration. The cultural significance provisions themselves are cumbersome and difficult to follow. The legislation relies on the advice and input of specialists in a range of areas of expertise relating the Australia's cultural heritage to assist with the process of decision-making. However, the practices of cultural significance decision-making and the legislative structure are disconnected, meaning that the experts in the field are making recommendations based in one discourse, while law's analysis follows a different method. This thesis argues that the 'cultural significance provisions' can only be effectively construed and interpreted if the narrative and discursive framework for 'cultural significance assessment' used by the museums sector are overtly embraced within law's conception of what makes an object 'culturally significant'. It sets out and explains the cultural significance assessment techniques used by Australian museums to evaluate the cultural significance of objects. The 'discursive techniques' of the museological method are tested against existing cultural significance decision-making. It will be shown that this method provides reasoned explanations for an object's cultural significance, and the adoption of this methodology would lead to an improved decision-making process. However, this thesis concludes by observing that fundamental policy issues will impact on any proposals for change.