The right of return
Tamil Nadu, India, The dancing child‑saint Sambandar 12th century, purchsed, 2005, repatriated to India in 2021
In recent years, initiatives have been introduced to ensure that every object in the Gallery’s collection has been lawfully acquired. Lawyer IAN MCDONALD outlines how and why the new guidelines came into being.
In late 2011, high‑profile art dealer Subhash Kapoor was arrested in Frankfurt, Germany, for illegally trafficking in antiquities. He was subsequently extradited to Chennai in India, where, in November 2022, he received a ten-year prison sentence from a court in Tamil Nadu. The arrest and extradition attracted a great deal of attention, since Kapoor (through his New York gallery, Art of the Past) had, for decades, been selling the very best Indian and Southeast Asian works to some of the most prominent galleries and museums worldwide — including to the National Gallery of Australia.
To lend legitimacy to the sales, Kapoor provided buyers with fake documentation that purported to show export from India and other Southeast Asian countries before 1972 — that being the year the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property came into operation, and the date after which many countries adopted the standards of that convention into their own legislation. That year was also generally adopted by governments and the museum and art gallery sectors around the world as the date after which attention would be paid to whether or not a work had been illegally exported.
Following Kapoor’s arrest and the subsequent seizure by the Australian Government of a sculpture held by the Gallery that had (unbeknownst to the Gallery) been stolen from a temple in India, the Gallery put in train several important initiatives relating to works that it considered ‘high risk’ from a provenance point of view.
These initiatives included the allocation of dedicated staff to conduct provenance review and research (a commitment that is ongoing); the commissioning of two independent provenance reviews of Kapoor‑related and other Asian works in the collection by former High Court Justice, the Hon Susan Crennan AC QC; and a review and update of all provenance procedures (including the publication of these procedures on the Gallery’s website). As a result of these initiatives, the Gallery was able to identify a number of works within its collection that had unsatisfactory provenance documentation and that, on all available information, were likely to have been stolen or illegally exported. Based on this assessment, 22 sculptures and works on paper have been returned to India. Research on other works within the Gallery’s collections is ongoing.
'One of the major shifts over the past decade across art galleries and museums worldwide has been a move away from an essentially legalistic view — that objects should be returned only if they are clearly shown to have been illicitly obtained or exported — to one which also takes into account relevant cultural sensitivities and ethical considerations.'
In this, the Gallery’s provenance assessment guidelines — announced in July 2021 as part of an ongoing review of internal provenance policy, procedures and practices — represent a tough stance, with application across the institution’s approaches to both acquisitions and loans, and to the deaccessioning of problematic works already in its collections.
The overriding concern in the guidelines is to ensure that only those works that are fit for the collection on both a legal and ethical basis are held, acquired or borrowed, with a strong emphasis on the absolute importance of ethical obligations (including in the assessment process itself).
'Importantly, the guidelines recognise that a ‘one‑size‑fits‑all’ approach is not appropriate, and that each assessment needs to be made by referring to the unique circumstances relating to each work.'
Gujarat, India, Goddess Durga slaying the buffalo demon [Durga Mahisasuramardini] 12th–13th century, purchased 2022, repatriated to India in 2021
As a public institution, the Gallery is expected to act both promptly and properly, but the repatriation of works of art cannot be rushed, particularly in cases where several countries might have a claim on a work, where there are gaps in knowledge or research that the Gallery’s staff needs to address, or where return to a source country — such as Afghanistan under the Taliban — may be problematic.
As a result, the framework principles note that determinations will be made based on the balance of probabilities, but that such determinations can only be made after proper research and assessment of all reasonably available information and advice, and after consulting all relevant and available stakeholders. It is assumed that, as a public institution, the Gallery will act transparently, including in disclosing provenance information, and the guidelines ensure that such transparency continues.
The Gallery’s guidelines are both robust and appropriate — driven by research, critical scrutiny and ethical considerations — and it should be commended for the ongoing efforts it has made for nearly a decade to ensure that it continues to adhere to best practice in both managing potentially problematic works within its existing collections and in acquiring works (whether by way of loans for exhibition or by way of acquisition).
This story was first published in The Annual 2022.
Rajasthan or Uttar Pradesh, India, The divine couple Lakshmi and Vishnu [Lakshmi Narayana] 10th–11th century, purchased 2006, repatriated to India in 2021
