The decision in Commonwealth of Australia v Palmanova Pty Ltd [2024] FCAFC 90 concerned an appeal to the Full Federal Court of Australia. The appeal centred upon an issue of statutory interpretation, namely, the construction of s 14 of the Protection of Movable Cultural Heritage Act 1986 (Cth) (‘the Act’). That provision, concerning the forfeiture of cultural heritage objects imported from foreign countries, stated:
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.
…
Background and the decision below
The respondent, an Australian company, had purchased an artefact from a gallery in Colorado. The artefact was said to have originated from Tiwanaku, an ancient city the ruins of which now lie in Bolivia. The artefact was shipped to Australia in 2020 and, upon its arrival, was intercepted by customs officials and later seized by an inspector appointed under the Act.
The respondent successfully applied to the Federal Court for an order that the object was not liable to be forfeited by virtue of s 14(1) of the Act. Although the primary judge, Perram J, concluded that the Artefact was a protected object that was removed unlawfully from Bolivia no later than the 1950s, His Honour concluded it was not liable to forfeiture. It was said that s 14(1), properly construed, applied to a protected object only if the act of exportation referred to in s 14(1)(a):
- occurred on or after the commencement of the Act on 1 July 1987; or
- alternatively, is sufficiently connected with an act of importation, itself occurring on or after 1 July 1987, such that the importation and exportation together constitute a ‘transfer’.
The foundation of the primary judge’s construction was the use of present perfect tense in the phrase ‘has been exported’ in s 14(1)(a). The ‘problem of interpretation’ described by Perram J was ‘the identification of the connection to the present which the present perfect tense in s 14(1)(a) assumes’. That connection was found to lie in ‘the identity of the speaker’, being parliament, 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’, being the Act’s commencement. Alternatively, the requisite connection could, it was found, be provided by the relationship between the acts of import and export.
The primary judge found that reading ‘has been exported’ in s 14(1)(a) so that it revealed 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’. In other words, if the subsection was to be read only as requiring that the object remain exported at the time of import, the phrase ‘has been exported’ would have no work to do (i.e. by definition, an item will be exported at the time it is imported).
His Honour used an analogy to explain the above reasoning:
‘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.’
The primary judge observed that the meaning of s 14(1) was unclear, and consequently, viewed it as legitimate to consult secondary materials including a related international convention referred to (but not adopted) by the Act: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. However, His Honour concluded that the secondary material, including the Convention, was of limited or no assistance in the interpretation of s 14(1).
The majority
A majority of the Full Court (Banks-Smith and Abraham JJ) allowed the appeal; finding, firstly, that the primary judge had erred in his construction of the statute and, secondly, ordering that the artefact was liable to be forfeited. The majority emphasised that the starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose. Applying that principle, they concluded the text of s 14(1), considered in its context, and given its purpose, provided no basis to limit its application to exports from a foreign country after the enactment of the legislation.
According to the majority, the focus of s 14(1)(a) was the character of the object at the time of import, not the concept of an object’s ‘export’. Specifically, the subsection was said to require that, specifically at the time it was imported into Australia, the object was a protected object that had been exported. The use of the present perfect tense in the phrase ‘has been exported’ was said to be explicable in that context and did not involve redundancy.
In reaching that conclusion, the majority placed emphasis on the framing of the offence provision in subsection (2). The majority characterised the provision as imposing criminal liability where a person knows the object they imported ‘is’, at the time of import, ‘a protected object of a foreign country that has been exported from that country’ and that the export ‘was’, at the time of export, ‘prohibited by a law of that country…’ It was found that ss 14(1)(a) and (2)(a) should be construed consistently.
The majority held that, because the construction of s 14 was clear, extrinsic material (including the Convention) was unnecessary to consider. Further, the majority rejected the alternative construction postulated by the primary judge, emphasising that the term ‘transfer’ did not appear in the text of the provision, and finding that His Honour’s alternative interpretation ‘reflected an artificially confined view of the purpose of the Act’.
Dissent of Downes J
Downes J dissented; finding no error in the Primary Judge’s construction of s 14(1)(a). Her Honour contended that 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, it was argued that the subsection would be redundant, as found by the primary judge. Additionally, Her Honour viewed the meaning of s 14(1) to be ambiguous and that resort to extrinsic material was therefore appropriate. Unlike the Primary Judge, Her Honour found that the terms of the Convention supported the construction ultimately adopted by Perram J.
Her Honour was concerned by the implications of the majority’s construction on the offence provision in s 14(2) (noting it was common ground that the relevant aspects of s 14(1) had the same meaning as s 14(2)). Downes J explained that, 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.’
Consequently, to minimise the risk of being charged with an offence under s 14(2), an importer would be required to undertake a ‘significant amount of work’, 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’. Her Honour was concerned that finding answers to these questions ‘could prove very difficult, if not impossible’.
Summary
The decision in Palmanova reiterates some fundamental principles of statutory interpretation. Both the majority and dissenting reasons confirm that the starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose. It remains uncontentious that, where clear meaning can be determined from the provision itself, it is not appropriate to resort to extrinsic material. However, at the same time, Palmanova is a reminder of the extent to which reasonable minds – including those of judges – can differ in the interpretation of statutory text. These differences can lie not only in relation to the meaning of words or phrases used by parliament, but also with respect to issues of redundancy and the level of ambiguity posed by statutory provisions.
Douglas Freeburn
Barrister
Higgins Chambers
[This case note was originally published in the Spring Edition of the Law Council of Australia’s quarterly publication, Chapter III. Reproduced with permission].