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Provenance and due diligence research 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. The Gallery is committed to ensuring the negotiation and administration of loans and acquisitions and the development and management of the collection are 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 in the public and museum communities, 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 and is committed to acting in a manner that does not directly or indirectly validate, endorse or provide an incentive to the illegal or unethical trade in cultural property. In order 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 findings and assessment of due diligence research will inform the Gallery’s decision-making processes in these matters and will be premised on informed professional judgement.

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 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 in the public and the museum community, both nationally and internationally; and

e. to ensure the Gallery does not directly or indirectly validate, endorse or provide an incentive to the illegal or unethical trade in cultural material.

4. Application

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.

5. Definitions

  • 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.
  • Accession means the process which formally acknowledges an artwork as part of the collection, in accordance with the Art Acquisitions Policy.
  • 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 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.
  • 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.
  • 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 to the Gallery on a temporary basis under which the transferor grants a temporary right of possession to the Gallery, in accordance with the Incoming Loans Policy.
  • 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, in accordance with the Outgoing Loans Policy.
  • 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 appointed in accordance with the Act.

6. Policy

6.1 Principles

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 compromises the Gallery’s position and reputation for probity in public administration; or serves to provide a direct incentive to, 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; or
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 many 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 Enquiries 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 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
  • 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

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
  • Art Acquisitions Procedures
  • Artwork Claims and Enquiries Handling Procedures
  • Code of Conduct
  • 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

  • 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 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

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

Effective 9 December 2015

See also

Provenance