Provenance and due diligence research policy
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. The Gallery is committed to ensuring the negotiation and administration of loans and acquisitions, and the development and management of the collection, is undertaken on terms that are ethical, honourable, responsible and transparent to public scrutiny. In this manner, the Gallery seeks to maintain its standing and reputation for excellence and integrity with the general public and museum community, both nationally and internationally.
This policy sets out the principles regarding provenance and due diligence research that inform and guide the Gallery’s decision-making when considering acquisitions, incoming loans and in relation to the collection. The Gallery will make every effort to ensure it acquires and borrows works of art for which provenance has been established or which are judged to have a secure history. The Gallery is committed to acting in a manner that does not directly or indirectly validate, endorse or provide an incentive for the illegal or unethical trade in cultural property. To do so, the Gallery will undertake due diligence research for all proposed acquisitions and incoming loans as well as reviewing previous decisions and understandings about the collection. The Gallery provenance group discusses provenance issues which are reported to the Acquisitions and Loans Committee as a standing agenda item. The findings and assessment of due diligence research will inform the Gallery’s decision-making processes in these matters and will be premised on professional judgement.
This policy is established by the director and approved by the Board of Trustees pursuant to the Act.
The objectives of this policy are:
a. to ensure the Gallery applies rigorous, accountable and transparent standards in the research, consideration and assessment of provenance and undertaking of due diligence in relation to acquisitions, the collection and incoming loans
b. to ensure the Gallery acquires and borrows works of art for which provenance has been established or which are assessed through sound professional judgement to have a secure history
c. to ensure that acquisitions, loans and the management of the collection is conducted in an ethical, responsible and accountable manner
d. to maintain the Gallery’s standing and reputation for excellence with the general public and the museum community, both nationally and internationally
e. to ensure the Gallery does not directly or indirectly validate, endorse or provide an incentive for the illegal or unethical trade in cultural material.
This policy applies to all activities relating to the investigation of provenance in the conduct of collection development and management and in relation to incoming loans.
- Aboriginal or Torres Strait Islander art means artwork by an Aboriginal or Torres Strait Islander artist or 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.
- Accession means the process undertaken that formally acknowledges an artwork to be part of the collection.
- Acquisition means the process of obtaining valid title to an artwork, in accordance with the Art Acquisitions Policy.
- Act means the Art Gallery of New South Wales Act 1980.
- 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 National Art Archive and study collection.
- National Art Archive collection means the sum of the institutional archive and the collected archives held by the Art Gallery of New South Wales.
- Study collection comprises works of art designated for the purpose of study or research that support or relate to works of art or artists in the collection. The study collection is a sub-category of the collection and works are accessioned.
- Director means the director of the Art Gallery of New South Wales.
- Due diligence means the thorough assessment of an artwork to evaluate its authenticity, ownership and provenance and to identify and assess any gaps in the provenance.
- Gallery means the Art Gallery of New South Wales.
- Gallery provenance group means members of the Art Gallery New South Wales curatorial, collection management staff and head librarian.
- 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 and 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.
- Outgoing loan means any contracted arrangement for the transfer of possession of an artwork from the Gallery to another party or parties on a temporary basis under which the Gallery grants a temporary right of possession to the borrower. 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 receiving possession and other sharing arrangements, such as a scheduled rotation of possession among co-owners. For the purpose of this policy, outgoing loans encompasses touring exhibitions. The terms lender, borrower, lending and borrowing and loan are to be construed in the context of this definition and unless otherwise specified, references to outgoing loan or any related terms may apply to proposed, contemplated, potential, approved or realised loan arrangements.
- Provenance means the history and ownership of an item from the time of its discovery or creation to the present day, from which authenticity and ownership is determined.
- Title means the legal right to ownership of property.
- Trustee means a member of the Board of Trustees of the Art Gallery of New South Wales.
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 Moveable Cultural Heritage Act 1986 and the Protection of Cultural Objects on Loan Act 2013, and is guided by the ICOM Code of Ethics, Museums Australia Code of Ethics and the Australian Best Practice Guide to Collecting Cultural Material.
In the process of acquiring artworks, the development and management of the collection and when entering into incoming and outgoing loan arrangements, the Gallery seeks to avoid any act or omission that may attract legal liability; involve the Gallery in civil or criminal proceedings, or would otherwise compromise the Gallery’s position and reputation for probity in public administration; or serves to provide a direct incentive for, or validation of, the illegal or unethical trade in cultural material.
The Gallery will make every effort to ensure it acquires and borrows works for which provenance has been established or which are judged to have a secure history through their presence in the public domain. Artworks will be considered for acquisition or loan on the basis of the sound professional and ethical assessment of provenance and conduct of due diligence investigations, in accordance with the Provenance and Due Diligence Research Procedures.
The Gallery will only acquire and borrow works where, in its professional judgement and on the basis of responsible levels of due diligence and the assessment of risk:
a. information about the provenance and authenticity of the artwork can reasonably be ascertained
b. a critical evaluation has been undertaken of gaps and discontinuities in the provenance information
c. the Gallery is satisfied that:
i. the work was exported from its country of origin and any intermediary country in accordance with that country’s laws and lawfully imported into Australia
ii. if not yet imported into Australia, is eligible to be or has been exported from its country of origin or any intermediary country in accordance with that country’s laws and is eligible to be lawfully imported into Australia.
d. any pre-existing or prior disputes or wrong-doings have been assessed and evidence sought of the binding settlement, abandonment, or remission of liability, or that any claim has been otherwise extinguished on binding terms and in circumstances that do not compromise the contemporary ethical status of the work
e. with regard to Aboriginal or Torres Strait Islander art, the origin and source of the artwork and the identity of any community or individual that may wish to assert a legal, and/or customary interest in the artwork has been identified and representatives of relevant Indigenous communities have been consulted in accordance with the Aboriginal and Torres Strait Islander Engagement Policy and Procedures.
The Gallery recognises that complete and unbroken records of ownership are rare and the provenance of works may contain gaps, or may not be able to be verified through documentary evidence. The Gallery recognises that there are many reasons for such gaps ranging from a past owner’s desire for anonymity to an absence of records of transactions arising from the nature of the trade in such material. Resolving provenance gaps, particularly during periods of war, conflict, political upheaval or natural disaster may be further complicated by the fact that records have been lost or destroyed. The Gallery will evaluate gaps or discontinuities in provenance or undocumented transactions to ensure no evidence or reasonable cause for suspicion can be found about the procurement of the work by its current owner, or any prior transactions or exchanges.
In order to gather further information, the Gallery reserves the right to initiate inquiries of prospective donors, sellers, lenders and third parties in order to seek to address gaps or doubts in regard to the provenance or legal and ethical status of an artwork. In acquisition and loan arrangements, the Gallery will require the seller, donor or lender to provide warranties and indemnities as to their account of title or possession.
The insurance value or purchase price of a work is not a consideration in the evaluation of provenance findings.
In some circumstances works may be borrowed or held by the Gallery in custody or trust in order to protect or preserve them, or in other arrangements under which the Gallery is acting as a repository of last resort in accordance with the Incoming Loans Policy. In such instances, the Gallery recognises that title and the usual standards of provenance may not be able to be ascertained. In such circumstances, the Gallery does not seek to retain possession of the works should the lawful title holder be identified, and in these circumstances will seek to restore the work to the legal owner.
The Gallery recognises that information may be obtained subsequent to acquisition or approval of a loan that establishes another party’s claim to title or possession of a work. The Gallery will take such information or claims very seriously and will investigate and respond in a timely, respectful and ethical manner in accordance with public interest, as guided by the Artwork Claims and Inquiries Handling Procedures and other established protocols.
6.2 Transparency and accountability
6.2.1 Record keeping
In accordance with the Record Keeping Policy and established procedures, staff will maintain records of provenance and due diligence research and findings, including the findings of research for acquisitions and incoming loans that are not approved to proceed, documenting relevant information and decision-making.
6.2.2 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.
6.2.3 Staff obligations
Gallery staff involved in the conduct, assessment and approval of provenance and due diligence research are bound by the Gallery’s Code of Ethics and 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 Responsibilities and compliance
7.1 Art Gallery of New South Wales Acquisitions and Loans Sub Committee
The Acquisitions and Loans Committee is responsible for monitoring and reporting on compliance with statutory and other requirements concerning provenance and the acquisition and loans process.
7.2 Executive and staff
The director and deputy director are responsible for ensuring that the process and documentation relating to provenance and due diligence research conform to all Gallery policies and that Gallery staff understand and comply with the policies.
8 Related documents, legislation and useful links
8.1 Gallery policies
- Aboriginal and Torres Strait Islander Engagement Policy
- Art Acquisitions Policy
- Conflict of Interest Policy
- Exhibitions Development Policy
- Fraud Control Policy
- Gifts and Benefits Policy
- Incoming Loans Policy
- Outgoing Loans Policy
- Record Keeping Policy
8.2 Guidelines, procedures and associated documents
8.2.1 Gallery guidelines, procedures and associated documents
- Aboriginal and Torres Strait Islander Engagement Procedures
- Acquisitions and Loans Committee Charter
- Art Acquisitions Procedures
- Artwork Claims and Inquiries Handling Procedures
- Code of Ethics and Conduct
- Incoming Loans Procedures
- Provenance and Due Diligence Research Procedures
- Risk Management – Statement of Intent
8.2.2 National and international guidelines, procedures and associated documents
- American Association of Art Museum Directors, Guidelines on the acquisition of archaeological material and ancient art, 2013
- The Art Loss Register
- Australian Government, Attorney General’s Department, Ministry for the Arts, Australian best practice guide to collecting cultural material, 2015
- Australian Government, Attorney General’s Department, Ministry for the Arts, Protection of cultural objects on loan: scheme guidelines, 2014
- Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973, as amended 1979 and 1983
- Department for Culture, Media and Sport, Cultural Property Unit, United Kingdom, Combating illicit trade: due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material, October 2005
- ICOM Code of Ethics for Museums, 2017
- ICOM, International Observatory on Illicit Traffic in Cultural Goods
- ICOM Red Lists of cultural objects at risk
- ICOM, World Intellectual Property Organisation Art and Cultural Heritage Mediation
- International Foundation for Art Research
- Museums Australia, Code of Ethics, 1999 (under review)
- Museums Australia, Continuing cultures, ongoing responsibilities, 2005
- Pacific Islands Museums Association Code of Ethics for Pacific Museums and Cultural Centres, 2006
- Unidroit, Convention on Stolen or Illegally Exported Cultural Objects, 1995
- UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970
- UNESCO, Database of National Cultural Heritage Laws
- UNESCO, The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, First Protocol, 1954 and Second Protocol, 1999
8.3.1 Commonwealth of Australia
- Aboriginal and Torres Strait Islander Heritage Protection Act 1984
- Customs Act 1901
- Personal Properties Securities Act 2009
- 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 2018
- Biosecurity Act 2015
- Environmental Protection and Biodiversity Conservation Act 1999
8.3.2 New South Wales
- Art Gallery of New South Wales Act 1980
- Government Information (Public Access) Act 2009
- Privacy and Personal Information Protection Act 1998
- Public Finance and Audit Act 1983. Parts that remain to be renamed Government Sector Audit Act 1983
- Public Finance and Audit Regulation 2015
- Government Sector Finance Act 2018
- State Records Act 1998
This policy is also informed by the traditions and precedents set since the establishment of the Gallery.