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Incoming loans policy

1. Summary

The Gallery and its functions are determined by the Art Gallery of New South Wales Act 1980. The principal objectives of the Gallery, as outlined in section 7 of the Act, are to develop and maintain a collection of works of art and to propagate and increase knowledge and appreciation of art. Facilitating access to and appreciation of art through an active and soundly managed incoming loans program supports this latter objective. Incoming loans provide an important opportunity for the Gallery to provide access to a broad and diverse array of artworks not represented in the collection, enhancing the academic, educational and economic potential of the Gallery’s exhibition program. Incoming loans also provide important opportunities for the Gallery to engage in other scholarly or professional research or other projects or undertakings related to works of art that may contribute significantly to the Gallery’s broader functions.

Incoming loans are assessed and approved in accordance with the powers afforded to the Gallery under the Act and this occurs within an accepted approval and management framework. The Gallery negotiates and manages incoming loans on terms that are ethical, honourable, responsible and transparent to public scrutiny, thereby maintaining its standing and reputation for excellence and integrity in the public and museum communities, both nationally and internationally. This policy sets out the principles the Gallery will adopt and factors it will consider when assessing, approving and conducting incoming loans. For the purposes of this policy, incoming loans include all loans to the Gallery’s collection, temporary and touring exhibitions and for other purposes.

2. Authority

This policy is established by the Director and approved by the Board of Trustees pursuant to the Act.

3. Objective

The objectives of the policy are to:

a. ensure that the Gallery manages and negotiates incoming loans on terms that are ethical, honourable, responsible and visible to public scrutiny; and

b. maintain and promote the Gallery’s standing and reputation for excellence in the public and museum community across New South Wales, nationally and internationally.

These objectives are to be achieved by ensuring that the Gallery:

a. undertakes only those incoming loans that are appropriate to its status and function in all circumstances;

b. demonstrates best practice in the risk management of potential and actual incoming loans; and

c. avoids any act or omission that may attract legal liability, involve the Gallery in civil or criminal proceedings, or otherwise compromise the Gallery’s position and reputation for integrity in public administration.

4. Application

This policy applies to all activities relating to the incoming loan of works of art. Nothing in this policy detracts from the terms of any loan agreement to which the Gallery is a party.

5. Definitions

In this policy:

  • Aboriginal or Torres Strait Islander art means artwork:
    a. by an Aboriginal or Torres Strait Islander artist; or
    b. containing Aboriginal or Torres Strait Islander themes or content.
    Aboriginal and Torres Strait Islander Art is defined in accordance with the Aboriginal and Torres Strait Islander Engagement Policy.
  • Act means the Art Gallery of New South Wales Act 1980.
  • Acquisitions and Loans Committee means the Board of Trustees sub-committee established to review and confirm the acquisition to and deaccessioning of artworks from the collection, as well as reviewing and approving requests for outgoing loans from the collection in accordance with the AGNSW Trust – Acquisitions and Loans Committee Charter.
  • Approved borrowing institution means an institution approved under Part 3 of the Protection of Cultural Objects on Loan Act by the Minister for the Arts, or the Minister’s delegate.
  • Collection means works of art in various media that are Gallery property and have been formally accessioned. The collection also includes other material acquired and accessioned by the Gallery for the purpose of research and enhancement of the collection, including the study collection. For the purposes of this policy, the terms ‘artwork’, ‘work of art’, ‘work’ and related terms are used interchangeably to describe all art or other material acquired into the collection. In this policy, the collection does not include the archive collection. Collection is defined in accordance with the Art Acquisitions Policy.
  • Collection exhibition means an exhibition of works of art that is largely drawn from the collection and may include incoming loans and/or commissions, in accordance with the Exhibitions Development Policy.
  • Director means the Director of the Gallery appointed under the Act and includes a person appointed as acting Director.
  • Due diligence means the thorough assessment of an artwork to evaluate its authenticity, ownership and provenance and to identify and assess any gaps.
  • Exhibition Executive means the management committee established to approve temporary, collection and touring exhibitions and is defined in accordance with the Exhibitions Development Policy.
  • Exhibition program means the forward program and schedule of temporary, collection and touring exhibitions, in accordance with the Exhibitions Development Policy.
  • Gallery means the Art Gallery of New South Wales Trust, a statutory corporation established in accordance with the Act.
  • Incoming loan means any contracted arrangement for the transfer of possession of an artwork or other material to the Gallery on a temporary basis under which the transferor grants a temporary right of possession to the Gallery. It therefore includes loans in the strict legal sense of gratuitous bailments, bailments that arise from contracts that expressly benefit both the Gallery and the party transferring possession and other sharing arrangements, such as a scheduled rotation of possession among co-owners. The terms ‘lender’, ‘borrower’, ‘lending’, ‘borrowing’ and ‘loan’ and all related or derivative terms are to be construed in the context of this definition and unless otherwise specified, references to incoming loan or any related terms may apply to proposed, contemplated, potential, approved or realised loan arrangements. The terms do not apply to transfers of possession to the Gallery where the Gallery is the sole owner of the object and retains the sole right of possession.
  • Incoming loan for temporary exhibition means an incoming loan made for a finite period for the primary purpose of display at the Gallery venue or in a touring exhibition. In the context of this phrase, ‘temporary exhibition’ has a meaning distinct from its definition in the Exhibitions Development Policy.
  • Incoming loan to the collection means an incoming loan made for the purpose of display, research or other purposes associated directly with the Gallery’s collection, including but not exclusive to exhibition.
  • International in relation to a loan means any loan arrangements pursuant to which an artwork enters Australia from a country outside Australia with the consent of a party ordinarily resident or incorporated outside Australia who grants a temporary right of possession to the artwork(s) to the Gallery for a specified period.
  • Loan agreement means a formal, legally binding written contract between the lender, who may be the owner of the artwork(s) subject to the loan or their agent, and the Gallery as borrower, specifying the artwork(s) and outlining the conditions and terms of the loan and the responsibilities of each party.
  • Owner means the party or parties who lawfully possess title to the artwork.
  • PCOL means Protection of Cultural Objects on Loan and is used in this policy in reference to the Protection of Cultural Objects on Loan Act 2013, Protection of Cultural Objects on Loan Regulation 2014 and Protection of Cultural Objects on Loan Scheme.
  • Provenance means the history of ownership of an item from the time of its discovery or creation to the present day, from which authenticity and ownership is determined.
  • Temporary exhibition means an exhibition of works of art including incoming loans and/or commissions and may include works drawn from the collection and is defined in accordance with the Exhibitions Development Policy. When used in the context of the whole phrase ‘incoming loan for temporary exhibition’, this term has a different meaning.
  • Title means the legal right to ownership of property.
  • Touring exhibition means an exhibition of work(s) of art that may include works drawn from the collection, incoming loans and/or commissions that the Gallery tours to other venues and is defined in accordance with the Exhibitions Development Policy.
  • Trustee means a member of the Board of Trustees appointed in accordance with the Act.

6. Policy

6.1 Principles

Incoming loans are critical to the Gallery’s capacity to realise its temporary exhibition program as well as contributing significantly to the collection and touring exhibition programs and providing access to works of art for the purposes of study and research. Incoming loans facilitate access to an array of artworks not represented in the collection, thereby enhancing the academic, educational and economic potential of the Gallery’s exhibition program.

The Gallery will only undertake those incoming loans that are appropriate to its status, function and legal and ethical obligations in all circumstances. The Gallery will demonstrate best practice in the risk management of incoming loans. In negotiating and managing loans, the Gallery will seek to avoid any act or omission that attracts legal liability, involves the Gallery in civil or criminal proceedings, or otherwise compromises the Gallery’s position and reputation for integrity in public administration.

The Gallery will only borrow artworks where it is confident that:

a. the lender is reputable;

b. the owner(s) hold valid title to the work;

c. where the lender is not the sole owner, the lender has the legal authority to enter into the loan either:
i. on behalf of the owner and/or co-owners as an agent or representative; or
ii. as the party who would reasonably be expected to have possession, custody or control of the artwork for the period of the loan, were that arrangement not in place.

d. the works have not been illegally exported from the country of origin or any intermediary countries and relevant export licences and permits have or will be obtained for export from the country from which they will be exported;

e. the import of the works into Australia does not contravene Australian import restrictions, or international treaties or conventions to which Australia is a party or signatory;

f. the works have not been obtained through illicit or unauthorised means; and

g. there are no current or outstanding third-party claims on the works.

The Gallery recognises the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and acknowledges that Australia is a signatory to the Convention. The Gallery also recognises and is bound by the terms of the Protection of Movable Cultural Heritage Act 1986, the PCOL Act, and PCOL Regulation and is guided by the ICOM Code of Ethics, Museums Australia Code of Ethics and the Australian Best Practice Guide to Collecting Cultural Material.

The Gallery will remain aware of and vigilant to all risks of legal and ethical controversy that may arise in connection with incoming loans and will respond in a timely manner to notice of matters that bear upon the legal, ethical and social propriety of a loan.

The Gallery recognises that the owner of a work may elect to have the loan negotiated and managed on their behalf by an agent or third party or may elect to remain anonymous. In such instances, the identity of the owner must be made known to the Gallery and documented in the loan agreement. With the exception of this requirement and to the extent that it is able to do so within legislative and policy parameters, the Gallery will comply with this request.

The Gallery will borrow works for a fixed period only, which will be agreed between all parties and which can be extended by mutual agreement. Works of art will not be accepted for loan for an indefinite period.

The Gallery will exercise the same standard of care for works of art on incoming loan as it does for its own collection in accordance with established procedures and professional museum standards.

On occasion, the Gallery may hold works in trust for a brief period for another museum or gallery or in accordance with statutory requirements. For the purposes of this policy, these circumstances do not constitute incoming loans and will be considered custodial arrangements, managed in accordance with established procedures and the Collections Management Policy.

6.2 Approval of incoming loans

All proposed incoming loans for temporary or touring exhibition must be approved by the Director or her/his delegate. Loans will be approved at the meetings of the Exhibition Executive, in accordance with the Exhibitions Development Policy. The decisions of the Exhibition Executive will be minuted.

All incoming loans for purposes other than temporary exhibition will be endorsed by the Acquisitions and Loans Committee. The decisions of the Acquisitions and Loans Committee will be minuted and ratified at the subsequent meeting of the Board of Trustees.

Once approved by the relevant authority, incoming loans for temporary exhibition will be requested in writing from the lender by the Director.

In deciding whether to approve an incoming loan, consideration will be given to:

a. the Act;

b. the terms of this policy;

c. the findings of provenance and due diligence investigations, conducted in accordance with the Provenance and Due Diligence Research Procedures; and

d. outcomes and recommendations arising from any community consultations.

The grounds for approval of any incoming loans that do not accord with the considerations outlined in this policy will be minuted by the delegated authority.

6.3 Factors to be considered in the assessment of incoming loans

6.3.1 Ethics, public accountability and risk management

When considering an artwork for incoming loan, the Gallery will:

a. practise and be prepared to show that it has practised high standards of due diligence;

b. applying those standards, seek to establish by all reasonable means all accessible information on the provenance, legal and ethical status and general legitimacy of the work and on the legitimate interests of third parties;

c. base the decision whether to borrow and the terms on which incoming loans are entered into, on a thorough and conscientious appraisal and risk assessment of the information obtained; and

d. maintain thorough records of the process of incoming loan proposal, investigation and decision-making.

The Gallery will not accept an incoming loan on terms that require it to:

a. suppress reasonable misgivings about the artwork or transact on the basis of a flawed provenance;

b. compromise its standing, integrity or freedom to act conscionably; or

c. act in any other manner contrary to the dictates of conscience and the public interest.

6.3.2 Provenance and due diligence

In determining whether to enter into an incoming loan, the Gallery will evaluate the available provenance information and undertake due diligence to enable it to make an informed assessment. In accordance with the Exhibitions Development Policy, the following will assess provenance and determine requirements for further investigation before approving to proceed with the loan:

a. Incoming loans for temporary or touring Exhibitions – the Director or her/his delegate, in consultation with the Exhibition Executive;

b. Incoming loans to the collection and for other purposes – the Director or her/his delegate, in consultation with the relevant Head Curator and Deputy Director.

Investigation, risk assessment and decision making will be undertaken and documented in accordance with the Provenance and Due Diligence Research Procedures.

When undertaking an incoming loan, the Gallery will require the lender to provide warranties and indemnities regarding their account of provenance, ownership and/or possession.

After undertaking due diligence and determining to proceed with an incoming loan, if, in the course of the negotiation or conduct of the loan information emerges that has the potential to expose the Gallery to legal entanglement or to render the loan ethically contentious, in accordance with Provenance and Due Diligence Research Procedures further investigation and risk assessment will be undertaken in order to determine how to proceed.

6.3.3 Permits, approvals and reporting

The Gallery will at all times act in compliance with all administrative and legal processes in place at an international, national and state level and will obtain all necessary permits or approvals and comply with all other reporting and accountability requirements in relation to the import and export of materials to Australia.

6.3.4 Conflicts of interest – staff and Trustees

Unless in exceptional circumstances, works of art in the private collections of Gallery staff will not be accepted for incoming loan.

Gallery staff and members of the Board of Trustees or Acquisitions and Loans Committee must declare any conflict of interest in an incoming loan. The declared conflict will be minuted by the relevant committee or board. Trustees and employees must exclude themselves from any discussion or decision by the Exhibition Executive, Acquisitions and Loans Committee and/or Board of Trustees in relation to an incoming loan in which they have an interest and this will be minuted.

All incoming loans from the private collections of Trustees or members of Board of Trustee sub-committees or Gallery staff must be publicly acknowledged as being from a ‘private collection’.

6.3.5 Repository of last resort

The Gallery recognises that there may be circumstances in which it will take possession of works that do not conform to the provenance and title standards outlined in this policy due to ethical, cultural or legal considerations. This includes circumstances in which there is a significant risk of damage, loss or destruction of the work if the Gallery fails to act, on the request of Aboriginal or Torres Strait Islander communities or other traditional owners, or where the Gallery is fulfilling a statutory or legal requirement to do so. Such situations will usually be administered as incoming loans in accordance with this policy, or as custodial arrangements in accordance with the Collections Management Policy.

In considering the incoming loan of such works, the Gallery will consult with representatives of appropriate communities or groups, the professional museum community and/or relevant governments and will be guided in particular by the Aboriginal and Torres Strait Islander Engagement Policy regarding community consultation processes. The Gallery will enter into such arrangements on the basis of sound, considered professional and ethical judgements. Such loans will be undertaken only in specific circumstances and the Gallery will only enter into such arrangements in instances where the works of art are not being borrowed primarily for temporary exhibition purposes.

Such loans will be assessed and approved in accordance with this policy. The basis for the decision and any variations to the terms of the standard loan agreement will be documented in accordance with this policy and associated Incoming Loans Procedures.

6.4 Additional considerations for international incoming loans for temporary exhibition

The Gallery recognises the significant obligations and responsibilities afforded to approved borrowing institutions under the terms of the PCOL Act. The Gallery will comply with the terms of the PCOL Act and Regulation in order to enable the subjects of eligible international incoming loans for temporary exhibition to access the available immunity from suit and seizure in accordance with Part 2 of the PCOL Act.

The Gallery recognises that in accordance with the terms of Part 2 of the PCOL Act, incoming loans for the purpose of inclusion in collection exhibitions and other collection displays and touring exhibitions within Australia are subject to the same eligibility requirements and protections as incoming loans to temporary exhibitions.

In accordance with the Incoming Loans Procedures, the Gallery will comply with all reporting, transparency and accountability requirements under the PCOL Regulation.

6.4.1 Opting-out of protection

The Gallery acknowledges that there will be instances in which the protections afforded by the PCOL Act are not required either due to the managed nature of the risks or a willingness on the part of both the Gallery and the lender to forego the protections. In such instances, the Gallery may elect to opt-out of protection and will do so in accordance with the terms of the PCOL Act and the Incoming Loans Procedures.

The decision to opt-out of protection will be determined by the Exhibition Executive in relation to incoming loans for temporary exhibition, and the relevant Head Curator, Deputy Director and Director regarding incoming loans to the collection.

The Gallery is committed to ensuring transparency and ethical dealings in its interactions with lenders and will liaise with the lender regarding the decision to opt-out and the lender will be advised in writing prior to the incoming loan commencing that the loan will not be afforded PCOL protections. The grounds for the decision and the lender’s agreement will be documented in accordance with the Incoming Loans Procedures.

Loans for which protections have been waived in accordance with this section are not subject to any of the other requirements of section 6.4 of this policy.

6.4.2 Consultation

Where relevant and in accordance with the PCOL Regulation, consultation with appropriate individuals, groups, communities or statutory bodies will be undertaken as part of the assessment of an international incoming loan for temporary exhibition. Consultations will inform the decision making as to whether the Gallery will proceed with a proposed loan.

The Gallery will undertake consultation where the work:

a. relates to or holds particular significance for an individual, group or community in Australia;

b. was created by an Aboriginal or Torres Strait Islander artist, contains Aboriginal or Torres Strait Islander themes or content, or relates to an Aboriginal or Torres Strait Islander person or community; or

c. is a document or record that may be relevant to a state, territory or national archive or government records office.

The Gallery is committed to the principle that consultation facilitates the establishment and strengthening of the Gallery’s relationships with its various communities. Accordingly, consultation will be undertaken in a manner that is both outcomes focused in relation to the incoming loan in question and meaningful in the longer term. Consultations will be conducted in an open, ethical, transparent and accountable manner, recognising at all times the cultural, social, spiritual and linguistic diversity of the individuals and communities involved. Consultations will be structured and undertaken in a manner consistent with the Incoming Loans Procedures and the Aboriginal and Torres Strait Islander Engagement Procedures.

The Gallery will ensure an appropriate amount of time is allocated for consultation and further follow-up and will ensure that all parties are aware of the timeframe for consultation and decision making about whether and on what terms the incoming loan will proceed.

Where relevant, consultation will be undertaken for works proposed for incoming loan for temporary exhibition on each occasion of loan, irrespective of whether the works has been previously borrowed.

6.4.3 Publication

At least four weeks prior to the import of an international incoming loan for temporary exhibition and until it is exported from the country, the Gallery will publish on its public website core information and an image of the artwork, in accordance with Part 6 of the PCOL Regulation and the Incoming Loans Procedures.

In exceptional circumstances, the Gallery may seek an exemption from publication for nominated incoming loans in accordance with the PCOL Regulation and the Incoming Loans Procedures.

Any claims or concerns arising from the publication of artworks will be taken very seriously and handled in a timely manner by the Gallery, in accordance with the Artwork Claims and Enquiries Handling Procedures and the PCOL Regulation.

6.4.4 Duration of protection

In accordance with the PCOL Act, protection is available for a maximum of two years from the date on which the work was imported into Australia, unless approval to extend is granted. In the event that an incoming loan protected under the terms of the PCOL Act will endure beyond the two-year period, the Gallery may request an extension in accordance with the requirements of the Scheme and the Incoming Loans Procedures at a minimum of six weeks prior to the end of the protection period. If an extension is not requested and approved, the Gallery recognises that under the terms of the PCOL Act, protections will cease.

In the event that protection will expire during the course of a loan, the Gallery will advise the lender at the earliest possible convenience prior to the end of the protection period in accordance with the Incoming Loans Procedures.

6.5 Formalising approved incoming loans – loan agreements

Following Gallery approval to proceed with an incoming loan, if the proposed lender agrees in principle to the loan, the Manager Exhibition Loans and Touring (incoming loans for temporary exhibition) or Senior Registrar (all other incoming loans) will thereupon assume responsibility for negotiation and loan arrangements.

In consultation with the lender, the Manager Exhibition Loans and Touring or Senior Registrar will determine the identity of the party responsible for issuing the loan agreement and on whose terms the loan will be concluded. Where the Gallery is responsible for issuing the loan agreement, incoming loans are concluded using the Gallery’s incoming loan agreement which outlines standard terms, amended by special negotiation when so required in accordance with the Incoming Loans Procedures. Where the lender’s loan agreement is used, the conditions will be assessed to ensure they are consistent with the terms outlined in this policy and the Gallery’s incoming loan agreement. Where necessary, amended or additional clauses to the lender’s agreement will be negotiated.

Loan agreements for incoming loans for temporary exhibitions, including touring exhibitions, are approved and endorsed under the delegated authority of the Director by the Head of Exhibitions and witnessed by the Manager Exhibition Loans and Touring. Loan agreements for incoming loans for all other purposes, including incoming loans to the collection are approved and endorsed under the delegated authority of the Director by the relevant Head Curator and witnessed by the Senior Registrar.

6.6 Transparency and accountability

6.6.1 Publication of incoming loans

In addition to publication requirements specific to incoming loans protected under the terms of the PCOL Act, the Director will ensure that a list of all incoming loans to the collection is published in the Gallery’s Annual Report.

The Gallery may publish or make available a printed or online catalogue or other document for each exhibition listing the artworks that are included in the exhibition.

6.6.2 Record keeping

In accordance with the Record Keeping Policy and established procedures, staff will maintain records (paper based and/or electronic) for each incoming loan, including proposed incoming loans that are not approved, documenting relevant information and decision making.

6.6.3 Internal audit and review cycle

The Director will ensure that compliance with this policy is assessed as part of the Gallery’s audit program. The policy will be reviewed by the Board of Trustees on a regular basis in accordance with the Gallery’s audit program.

6.6.4 Staff obligations

Gallery staff involved in the assessment, approval and administration of incoming loans are bound by the Gallery’s Code of Conduct and other relevant Gallery policies, including but not limited to the Conflict of Interest Policy, Gifts and Benefits Policy, Fraud Control Policy and Record Keeping Policy.

7. Related documents, legislation and useful links

7.1 Gallery policies

  • Aboriginal and Torres Strait Islander Engagement Policy
  • Collection Management Policy (in development)
  • Conflict of Interest Policy
  • Copyright and Image Reproduction Policy
  • Exhibitions Development Policy
  • Fraud Control Policy
  • Gifts and Benefits Policy
  • Provenance and Due Diligence Research Policy
  • Record Keeping Policy

7.2 Guidelines, procedures and associated documents

7.2.1 Gallery guidelines, procedures and associated documents

  • Aboriginal and Torres Strait Islander Engagement Procedures
  • Acquisitions and Loans Committee Charter
  • Artwork Claims and Enquiries Handling Procedures
  • Code of Conduct
  • Code of Conduct for Board of Trustees
  • Incoming Loans Procedures
  • Provenance and Due Diligence Research Procedures
  • Risk Management – Statement of Intent

7.2.2 National and international guidelines, procedures and associated documents

7.3 Legislation

7.3.1 Commonwealth

  • Crimes Act 1914
  • Customs Act 1901
  • Personal Properties Securities Act 2009
  • Proceeds of Crime Act 2002
  • Protection of Cultural Objects on Loan Act 2013
  • Protection of Cultural Objects on Loan Regulation 2014
  • Protection of Movable Cultural Heritage Act 1986
  • Protection of Movable Cultural Heritage Regulation 1987
  • Quarantine Act 1908
  • Wildlife Protection (Regulation of Exports and Imports) Act 1982

7.3.2 New South Wales

  • Art Gallery of New South Wales Act 1980
  • Freedom of Information Act 1989
  • Government Information Public Access Act 2009
  • Privacy and Personal Information Protection Act 1998
  • Public Finance and Audit Act 1983
  • Public Finance and Audit Regulation 2010
  • Public Authorities (Financial Arrangements) Act 1987
  • State Records Act 1998
  • Uncollected Goods Act 1995

This policy is also informed by the traditions and precedents set since the establishment of the Gallery.

Effective 9 December 2015