Journal Articles

Diploma in Law and Collection Management (Dip LCM)

Diploma in Law and Collection Management (Dip LCM) class participants, 2012 with Norman Palmer QC (centre front), presenter Rosemary Listing (far right).

The Australasian Registrars Committee, in partnership with the Institute of Art and Law, London, delivered the second Diploma in Law and Collection Management (Dip LCM) in April 2012.

Following on from the successful inaugural class, offered last year, twenty-one participants spent one week at Museum Victoria under the intense tutelage of Professor Norman Palmer, QC.

In April, I undertook the Diploma in Law and Collection Management, held at Melbourne Museum. The course was conducted over five days with an additional sixth morning set aside for participants to complete part of the course assessment.

On hearing Professor Norman Palmer’s paper at the ARC conference held in February any notion that this course would be dry and boring was thrown out the window. Hearing him speak was the impetus for many of the course participants to undertake the diploma, myself included. The twenty-one course participants from Australia and New Zealand came from a variety of backgrounds and this mix of people with their professional experiences contributed to lively and informative discussion.

From the outset, I was shocked, dismayed, intrigued and occasionally delighted by the various cases Professor Palmer put before us. For example, I found it unimaginable that a museum collection would be sold to pay off a debt, yet the Waterford Wedgwood company went into receivership and the collection created by Josiah Wedgwood was sold to pay the staff pension entitlements — because the correct legal requirements were not in place. In addition to Professor Palmer’s extensive knowledge and expertise the course was supported by several legal experts.

Dr Stephen Churches from the University of South Australia spoke about statutes and how to read them. Most national and state institutions in Australia are established under a governing statute which stipulates their powers, obligations and funding.

Ian Upjohn, a member of the Victorian Bar and an expert in commercial law, guided us in reading, writing and drawing up contracts, particularly what needs to be considered when drafting bills of sale and art loan agreements.

Rosemary Listing, a member of the NSW Bar and an expert in employment law, outlined the rights and obligations of employees working in a cultural institution and how those employees may be liable to litigation. This made us all stop and think about what we did in our day-to-day working lives.

Daniel Kinsey, a solicitor with a Melbourne law firm spoke about the commonwealth legislation—Personal Property and Securities Act 2009. The legislation has provision for a centralised registration scheme for all property in Australia, including property belonging to cultural institutions. Kinsey advised it would be prudent for any cultural institution required to send a collection item out of their care, whether it be for exhibition, conservation, research or any other reason, to register and record the item as their property within this scheme. This principle equally applies to a private person sending an artwork out for conservation or loan.

Day one consisted of a general introduction and outline to the course. We examined how the special nature of cultural objects is recognised by governments and the judicial system.

In Australia the main source of legislation protecting cultural objects is the Protection of Movable Cultural Heritage Act 1986. Judges are also increasingly aware of the special nature of cultural objects and make decisions regarding this type of material, particularly when no statute exists. In the afternoon there was much food for thought; discussion consisted of what to consider when drafting a contract; the importance of clear and concise language to avoid ambiguity and to ensure a contract is legally binding. Stress was placed on the importance of considering all contingencies and making provision in a contract for their resolution. The basic principles of conversion were highlighted including how an employee may innocently or accidentally, commit the act of conversion, resulting in violation of a person’s title to their property.

Day two examined the ways in which institutions acquire artworks and other items of cultural material, through purchase, exchange and donation. The best ways to ensure clear transfer of ownership were explored through the development of a contract of sale. Of the utmost importance is the verification that the person selling the goods to an institution is the legal owner and has the right to transfer title, otherwise you and your institution may be guilty of the act of conversion.

The last session of the day covered the topic of gifts and donations, in which many of the participants held an interest, as the institutions in which they work have acquired much of their collections in this manner. The act of gift or donation does not involve a contract or agreement and therefore an institution may have less control over the process. Crucial within this process was guaranteeing the donor has clear and legal title to the goods. It is also equally important to consider the ethical and moral issues surrounding the purchase and donation of certain types of objects, such as archaeological items or antiquities and material whose history may have gaps, particularly between 1933 and 1945.

Day three was all about bailments, otherwise known as art loans. The inward and outward loan of cultural objects affects most, if not all, cultural institutions and private collections as well. The careful drafting of a loan agreement was discussed in detail, with advice to factor in all contingencies to ensure the agreement contained specific clauses for their resolution. The usage of the term ‘permanent loan’ was more appropriately replaced by ‘indefinite’ or ‘long-term’, if necessary. Anti-seizure statutes and how they can affect the bailment process, was discussed, as was the Australian parliament introducing the anti-seizure legislation currently under consideration.

Bailments continued on day four, with more detailed and intricate examples concerning old and problematic loans. Because many institutional records are incomplete there is very little that can be done to resolve these issues. The perfect example that illustrated just how difficult these issues are concerned a bank in the United Kingdom which was trying to decide what to do with the unclaimed material in safety deposit boxes, some dating back to the mid nineteenth century. The Bank was advised that by law they were required to continue to manage the items as they were unable to dispose of items to which they did not have legal title; they were still acting as bailees for another person’s property. The same situation applies to any cultural institution unless it has provided a means by which it can dispose of such material – usually through a clause in a loan agreement. However, when no such agreement exists, the institution can never resolve the matter.

The afternoon’s session produced genuine surprise when participants discovered the term ‘de-accession’ is not a standard or conventional legal term and that it has never been statutorily defined. ‘Dispose’ is the term that must be used. Just as in the case of drafting bills of sale, donation forms and art loan agreements, there needs to be careful consideration of the clauses contained within a disposal document.

These discussions led quite neatly into a presentation by Charlotte Davey, senior exhibitions registrar at the Art Gallery of New South Wales, on the workplace ethics in cultural institutions. Charlotte was generous in discussing the types of issues she has considered since undertaking the course last year. Personal, professional and institutional ethics affect the way in which we work and how we tackle the issues that confront us.

On the final day of the course, we examined the issue of museum litigation and how employees may be sued for their actions. It was a little disconcerting to find out that an individual could be sued along with their museum (as a co-defendant), in place of their museum (as the defendant) or by their museum (for neglecting their duties as an employee). It is the responsibility of employees to understand the risks to which they may be exposed and set about ensuring they can protect themselves should anything go wrong. A sobering way to end what was an intense but also empowering week.

I have no hesitation in recommending the course to anyone who works with public or private sector collections. I would like to thank the ARC Committee for their generosity in awarding me a scholarship to attend this course. I would also like to say a special thank you to Museum Victoria and most especially to Karen Jakubec for being a fabulous host and for organising a behind the scenes tour of the museum.

By Christine Elias, Academic Programs Project Officer, Collections Management at The Ian Potter Museum of Art, The University of Melbourne