Attorney General of New Zealand v Ortiz

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Brightman, and I agree with it. For the reasons there stated I would dismiss this appeal.

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Brightman. I agree with it. For the reasons he gives I would dismiss the appeal.

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Brightman. For the reasons he gives I too would dismiss the appeal.

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Brightman. I agree with it, and for the reasons which he gives would dismiss the appeal.

This appeal arises out of the trial of a preliminary issue in a suit brought by the New Zealand Government against the exporter and purchaser of a tribal antiquity. The facts as pleaded in the amended statement of claim, upon the basis of which the issue fell to be tried, are as follows. In or about 1972 one Manukonga found in a swamp in the province of Taranaki a valuable Maori relic, described as a series of five carved wood panels that formed the front of a food store. In 1973 Manukonga sold the carving to the third defendant Mr. Entwistle who was a dealer in primitive works of art. The carving was to the knowledge of Mr. Entwistle an historic article within the meaning of the Historic Articles Act 1962 of New Zealand. Later in the same year the carving was exported from New Zealand by or on behalf of Mr. Entwistle. No permission under the Historic Articles Act 1962 authorising the removal of the carving from New Zealand had been obtained by him. In the same year Mr. Entwistle sold the carving to the first defendant Mr. Ortiz for $65,000. In 1978 Mr. Ortiz consigned the carving to Messrs Sotheby Parke Bernet & Company (Sothebys) in England for sale by auction.

In June 1978 the Attorney-General of New Zealand (suing on behalf of Her Majesty the Queen in right of the Government of New Zealand) issued proceedings against Mr. Ortiz and Sothebys and (by amendment) Mr. Entwistle. The New Zealand Government claims a declaration that the carving is the property of Her Majesty the Queen; as against Mr. Ortiz and Sothebys an order for delivery up of the carving; and as against Mr. Entwistle damages for conversion.

Under a consent order Sothebys retain possession of the carving pending the outcome of the action, and proceedings against them have been stayed.

In 1980 the Queen's Bench master, whose decision was upheld on appeal, ordered the trial of two preliminary issues, first, whether on the facts pleaded "Her Majesty the Queen has become the owner and is entitled to possession of the carving … pursuant to the provisions of the Historic Articles Act 1962 and the Customs Acts 1913 and 1966". And secondly "whether in any event the provisions of the said Acts are unenforceable in England as being foreign penal, revenue and/or public laws."

It is not in dispute for the purposes of the preliminary issues that the carving was exported in breach of the 1962 Act. The resolution of the first issue depends on whether, on the true construction of section 12 of the 1962 Act, incorporating certain provisions of the Customs Act, the carving was forfeited immediately it was unlawfully exported, so that it thereupon became vested in the Crown; or whether the unlawful export of the carving merely rendered it liable to forfeiture in the future, the forfeiture taking effect only upon the seizure by the New Zealand customs or police, which has not taken place. There is an express provision in the Customs Act 1913, and it is a necessary implication from a provision in the Customs Act 1966, that forfeiture under those Acts is not complete until seizure.

I turn in more detail to the statutory provisions. The Historic Articles Act 1962 repealed the Maori Antiquities Act 1908, which itself consolidated earlier enactments. The 1962 Act is described in the long title as "An Act to provide for the protection of historic articles and to control their removal from New Zealand". Section 2 contains a definition of "historic article". It is not in dispute that the carving falls within this definition. The definition is a wide one, and includes not only artifacts, but also documentary matter and certain specimens of animals, plants and minerals. Section 4 enables the Minister of Internal Affairs to acquire an historic article by purchase or gift. Section 5 describes what acts are unlawful in particular relation to an historic article, and it is the only section to do so. Unless a person transgresses section 5, he is at liberty to dispose of or deal with an historic article in the same manner as he may dispose of or deal with any other article. This section, which is crucial to the construction of section 12, reads as follows, so far as relevant:

"(1) It shall not be lawful after the commencement of this Act for any person to remove or attempt to remove any historic article from New Zealand, knowing it to be an historic article, otherwise than pursuant to the authority and in conformity with the terms and conditions of a written certificate of permission given by the Minister under this Act.

(2) Every person who contrary to the provisions of this section removes or attempts to remove any article from New Zealand, knowing it to be an historic article, commits an offence, and shall be liable on summary conviction to a fine not exceeding two hundred pounds."

Sections 6 to 11 deal with applications for permission to remove an historic article from New Zealand and incidental matters. Section 12, which is the section that falls to be construed, reads as follows:

"(1) Subject to the provisions of this Act, the provisions of the Customs Act 1913 shall apply to any historic article the removal from New Zealand of which is prohibited by this Act in all respects as if the article were an article the export of which had been prohibited pursuant to an Order in Council under section 47 of the Customs Act 1913.

(2) An historic article knowingly exported or attempted to be exported in breach of this Act shall be forfeited to Her Majesty and, subject to the provisions of this Act, the provisions of the Customs Act 1913 relating to forfeited goods shall apply to any such article in the same manner as they apply to goods forfeited under the Customs Act 1913.

(3) Where any historic article is forfeited to Her Majesty pursuant to this section, it shall be delivered to the Minister and retained in safe custody in accordance with his directions: Provided that the Minister may, in his discretion, direct that the article be returned to the person who was the owner thereof immediately before forfeiture subject to such conditions (if any) as the Minister may think fit to impose."

Section 16 empowered the Governor-General by Order in Council to make regulations for certain purposes, including regulations providing for such matters as are contemplated by or necessary for giving full effect to the provisions of the Act. Your Lordships have not been made aware of any relevant regulations.

The 1962 Act is no longer in force. It was repealed by the Antiquities Act 1975 as from 1 April 1976. However, the New Zealand Government do not claim that they are able to base the Crown's claim to ownership on any provision of the 1975 Act, which therefore can be disregarded.

Section 12 of the 1962 Act was expressed to operate by reference to the Customs Act 1913. The provisions of that Act are to apply to an historic article, the removal from New Zealand of which is prohibited by the 1962 Act, as if the article were an article the export of which had been prohibited pursuant to an Order in Council under section 47 of the 1913 Act. The 1913 Act was repealed by the Customs Act 1966, which came into operation for all relevant purposes on 1 January 1967. Section 70 of the 1966 Act is the section which corresponds to section 47 of the 1913 Act. It is common ground (although at one time disputed) that in consequence of section 21 of the Acts Interpretation Act 1924, section 12 of the 1962 Act must for present purposes be read as referring to the Customs Act 1966, and in particular to section 70 thereof.

The immediate effect of notionally including, without qualification, an historic article as a prohibited export under section 70 of the 1966 Act is that a contravention of the prohibition would render the exporter liable to a fine and would render the article subject to forfeiture, in the terms of subsections (6) and (7), which read as follows:

"(6) If any person exports, or ships with intent to export, or conspires with any other person (whether within New Zealand or not) to export any goods contrary to the terms of any such prohibition in force with respect thereto he commits an offence and shall be liable to a fine not exceeding five hundred pounds or three times the value of the goods, whichever sum is the greater.

(7) All goods shipped on board any ship or aircraft for the purpose of being exported contrary to the terms of any such prohibition in force with respect thereto, and all goods waterborne for the purpose of being so shipped and exported, shall be forfeited."

A further effect of notionally including without qualification, an historic article in section 70...