Incoming Loans Policy

Policy statement

The Incoming Loans Policy provides a framework for the management of incoming loans for temporary exhibition at the State Library of NSW (the Library). Incoming loans enable the Library to provide access to a broad and diverse array of original material not represented in its Collection, thereby enhancing the academic and educational potential of the Library’s exhibition programs. The Policy covers the range of loans from single items to travelling exhibitions.

Target audience

The Incoming Loans Policy is intended for Library staff engaged in making decisions and undertaking activities related to the assessment, approval and administration of incoming loans.

Operational requirements

i) Scope

This Policy sets out the principles the Library adheres to, and the factors it considers when assessing, approving and conducting incoming loans for temporary exhibitions. Nothing in this Policy detracts from the terms of any Loan Agreement to which the Library is a party.

ii) Principles

The Library will afford the same level of care for items on incoming loan as it does for items in its own collection, in line with established procedures and professional museum standards.

The Library is committed to undertaking all loan transactions within its policy and procedural framework, thereby ensuring a commitment to the highest ethical and legal standards of due diligence. The Library is committed to the application of Australian and international museum best practice, and abides by the Ministry for the Arts’ Australian Best Practice Guide to Collecting Cultural Material, Museum Australia’s Code of Ethics, and the ICOM Code of Ethics for Museums in its decision making and the administration of incoming loans.

The Library undertakes to be open and transparent in its decision-making processes and procedures and will demonstrate best practice in the risk management of incoming loans. In negotiating and managing loans, the Library will seek to avoid any act or omission that attracts legal liability, involves the Library in civil or criminal proceedings, or otherwise compromises the Library’s position or reputation for integrity in public administration.

The Library 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 Library also recognises and is bound by the terms of the Protection of Moveable Cultural Heritage Act (Cth) 1986, the Protection of Cultural Objects on Loan Act 2014 (Cth)and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

The Library partners with other approved cultural institutions to accept loans under acceptable due diligence requirements and outgoing loans policies. The Library will only borrow items when it is confident that:

a. the lender is reputable
b. the owner(s) holds valid title to the item
c. where the lender is not the sole owner, the lender has the legal authority to enter the loan either:
i) on behalf of the owner and/or co-owners as an agent or representative
ii) or as the party who would reasonably be expected to have possession, custody or control of the item for the period of the Loan, were the loan arrangement not in place
d. the item has 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 item into Australia does not contravene Australian import restrictions, or international treaties or conventions to which Australia is a party or signatory
f. the item has not been obtained through illicit or unauthorised means
g. there are no current or outstanding third-party claims on the items
h. the item does not include or compromise secret/sacred or culturally sensitive material from Aboriginal, Torres Strait Islander or other communities that has not been cleared for display by the relevant cultural custodians (see Consultation)
i. the item makes a significant contribution to the exhibition story
j. the item can be properly accommodated and displayed at the Library
k. the Library can meet all known associated costs
l. the Library has the resources available to manage the loan process and all installation requirements to meet all contractual obligations

The Library recognises that the owner of an item 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 cases, the identity of the owner must be made known to the Library and documented in the Loan Agreement. Except for this requirement, and to the extent that it is able to do so within legislative and policy parameters, the Library will comply with this request.

The Library will borrow items for a fixed period only which will be agreed between all parties and can only be extended by mutual agreement. Items will not be accepted for incoming loan for an indefinite period.

Provenance and Due Diligence

The Library accepts that full provenance of any particular item may never be fully known and that even the most thorough due diligence may fail to uncover all information about an item. Prior to deciding whether to proceed with an incoming loan, the Library may undertake due diligence regarding the lender’s account of provenance in accordance with Library procedures. Provenance and due diligence research will be undertaken by the curator of the exhibition. When undertaking research for an incoming loan, the Library will require the lender to provide warranties and indemnities regarding their account of provenance, ownership or possession. The Library will not proceed with an incoming loan if, after undertaking due diligence, there are reasonable concerns about the item, the lender, or the circumstances surrounding the loan.

Due diligence may include, but is not limited to:

• Consideration of documentary evidence of the item’s history of ownership
• Examining information about the lender and previous owners
• Checking art loss databases
• Considering secondary documentation such as archival information and images
• Examining the publication and exhibition history of the item
• Examining the item itself or detailed descriptions of the item
• Consulting experts in relation to any or all of the matters above

If new information relating to an item’s provenance comes to light during the loan period, the Library will reassess its decision to continue with the loan. If the legal and ethical risks are deemed too great will terminate the loan and return the item.

The Library will, at all times, comply 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 accountability requirements in relation to the import and export of cultural items to Australia.

Consultation

The Library will consult with relevant communities, particularly with Aboriginal and Torres Strait Islander and Pacific Islander communities where the item proposed for loan is closely associated with those communities. This consultation will not only involve provenance and ownership of the proposed loan, but also consultation relating to the way the item is displayed and interpreted in the exhibition.

The consultation will be facilitated and guided by the Library’s Indigenous Engagement Branch and in line with the State Library of NSW Indigenous Cultural and Intellectual Property Protocols, 2017 (draft) and the National and State Libraries Australasia Working with Community: Guidelines for collaborative practice between Libraries and Aboriginal and Torres Strait Islander communities, 2013.

Documentation

All incoming loans will be fully documented in written agreements in line with established Library record keeping procedures. The Registrars will maintain both paper based and electronic records of each incoming loan, including loans that are not approved, documenting relevant information and the decision-making process.

Where the Library is responsible for issuing a Loan Agreement, incoming loans are documented on the Library’s Inward Loan Agreement form which outlines standard terms, with any special conditions added as an amendment.

Where the Lender’s Agreement is used, the conditions will be assessed to determine if they are consistent with the principles outlined in this Policy and the Library’s Inward Loan Agreement, and where necessary amended or special clauses to the lender’s agreement will be negotiated.

Approval of incoming loans

1. Identification of proposed items for Incoming Loan -exhibition curator, and initial approval to proceed as part of exhibition proposal presented to the Library’s Exhibitions Planning Group
2. Negotiation of loan conditions including cost estimates – Registrar in consultation with the Exhibition Creative Producer
3. Endorsement of loan – Executive Director, Library and Information Services (legal and ethical content), Mitchell Librarian and Director, Engagement or delegate (costs)
4. Final approval – State Librarian and Executive Committee.

Following final approval, incoming loans will be formally requested in writing to the Lender by the State Librarian.

Loan Agreements are signed on behalf of the Library by the State Librarian.

Conflict of Interest

The Library will not borrow items from members of staff, volunteers, Trustees or close relatives of these people, or from any business or company in which such people have a controlling interest or directorial role unless:

- The interest is fully disclosed and documented and
- The person excludes themselves from any discussion or decision within the Library
that relates to the decision to borrow an item. Any such exclusions will be
documented.

Loans from Library staff, Trustees and volunteers will be acknowledged as ‘Private Collection’

Claims

All claims or concerns arising from the publication of proposed loan items will be taken very seriously and handled in a timely manner by the Library, in accordance with the Library’s Complaints Handling Policy.

Responsibilities

The State Librarian is responsible for authorising this policy including its conformity to legislative and other compliance requirements and supporting relevant activities regarding specific policy implementation.

The Library’s Executive Committee is responsible for communicating this policy effectively to managers and supervisors and ensuring adequate staffing levels to support collection preservation and conservation activities.

The Manager, Collection Care and the Registrar, Exhibitions and Loans are responsible for leading the implementation of this policy.

Relevant managers and supervisors are responsible for communicating this policy effectively to Library staff and managing processes relevant to this policy, ensuring work practices comply with this policy.

Relevant Library staff are responsible for understanding and complying with this policy.

All inquiries relating to this document, or relating to specific projects, should be addressed to the Registrar, Exhibitions and Loans, Collection Care.

Related Key Legislation and Policy

Most relevant legislation:

• Library Act 1939 and Library Regulation 2010
• Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
• Biosecurity Act, 2015 (Cth)
• Customs Act, 1901 (Cth)
• Protection of Cultural Objects on Loan Act 2013 (Cth)
• Protection of Cultural Objects on Loan Regulation, 2014
• Protection of Cultural Objects on Scheme Guidelines 2015
• Protection of Moveable Cultural Heritage Act, 1986 (Cth)

Related and/or most relevant State Library and government policies:

• Complaints Policy
• Information Security Policy
• Outgoing Loans Policy
• Collection Preservation Policy

Other relevant Library guidelines, plans and standards:

• State Library Code of Conduct
• Strategic Plan 2019-23
• Guidelines for due diligence with respect to provenance, 2015
• Indigenous Cultural and Intellectual Property Protocol (draft) 2017

Codes of practice:

• Australian Government, Attorney General’s Department, Ministry for the Arts Best Practice Guide to Collecting Cultural Material, 2014
• Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
• International Council of Museums Code of Ethics, 2006
• Museums Australia Code of Ethics, 2006
• National and State Libraries Australasia: Working with Community; Guidelines for collaborative practice between libraries and Aboriginal and Torres Strait Islander communities
• UNESCO, Convention on the Means of Prohibiting and preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970

Definitions

Approved Borrowing Institution: a cultural institution approved by the Federal Minister for the Arts under the Protection of Cultural Objects on Loan Act
Cultural institution: an organisation which works to promote and preserve culture.
Due diligence: a thorough assessment of an item to evaluate ownership, provenance and authenticity and to identify and assess any gaps in these.
Incoming Loan: for the purpose of this policy, a loan of items from a private lender or another institution for the purpose of public exhibition. A contracted arrangement for the transfer of possession of an item on a temporary basis under which the transfer grants a temporary right of possession to the Library.
Incoming Loan Agreement or Loan Agreement: a written, formally binding contract between a Lender and the Library as Borrower, specifying the items and outlining the terms of the Loan and the responsibilities of each party. Includes, but is not limited to the Library’s Incoming Loan Agreement, the Lender’s Agreement or an exhibition contract.
Owner: the party or parties that legally possess title to the item
PCOL Act: Protection of Cultural Objects on Loan Act 2013 (Commonwealth), a scheme to protect objects on loan from overseas for temporary exhibition in Australia.
Provenance: the history and ownership of an item from the time of its discovery or creation to the present day, which assists in the assessment of authenticity and ownership.
Title: the legal right to ownership of property