The Andrews government cannot identify any legislation it needed to override, but experts say that is the point.When Daniel Andrews signed a declaration for a state of disaster in Victoria at 1.43pm on Sunday, it was a part of a final salvo in a battle to control a resurgent and invisible enemy.
Fighting trade in human remains antiquities
Several years ago, Melbourne antiquities dealer BC Galleries came to attention over its attempt to sell archaeological objects including human remains that Cambodia claimed were of historical and cultural value and wanted returned.
Acting on a tipoff in 2011 about an internet sale listing traced back to the dealer, Australian authorities seized samples of ancient jewellery, some with soil and human bone fragments still attached. An expanded online collection revealed other pieces containing skeletal segments, including of forearms and fingers. The gallery didn’t challenge the seizure, and the objects were repatriated under a memorandum of understanding Australia had previously signed with Cambodia.
A year later the same seller was ordered to forfeit more items from its online catalogue. Among them were what appeared to be a traditional Ifugao headhunter skull, a tribal trophy from the southern Philippines. The dealer challenged the order in court and won because the judge was not persuaded of the articles’ authenticity – a precondition for objects to be confiscated under the federal Protection of Moveable Cultural Heritage Act and returned to their country of origin.
There are a number of problems with allowing the online trade of human remains, according to Professor Duncan Chappell, a lawyer and criminologist called as an expert witness for the Commonwealth in the second case.
“The first and probably foremost one that got us interested was the destruction of the context of archaeological sites and the looting accompanying it – you’re destroying history,” Chappell says. “There are also forensic issues, potentially because it’s quite possible that foul play may have at some point produced these remains. There’s also the desecration of the gravesites, particularly in more contemporary settings.”
The “us” Chappell refers to introduces his then colleague at Sydney University – bioarchaeologist Dr Damien Huffer, who was involved in inspecting the items repatriated to Cambodia. Together they began investigating how the internet is being used to move objects of possible historical and cultural value on the “red market”, or underground trade in human body parts.
Human remains are an active international trade, the researchers suggest, and in the context of the sale of illicit archaeological artefacts are poorly understood and underreported. More broadly, Australia is regarded as a significant destination for looted historical objects. The National Gallery of Australia’s acquisition and return of the bronze dancing Shiva goddess statue from India in 2014 is a high-profile example.
“The online world is so open and many of the platforms that post online sales or bids or auctions really have very little oversight and their terms of service are very lax,” says Huffer, now based in Stockholm, Sweden. “So as long as people aren’t doing anything very obviously pornographic, violent, exploitative – there’s so many grey areas – they turn the other cheek.”
Antiquities containing human remains from galleries and auction houses can be seen listed in high-end online catalogues linked to dealers in Austria, France and Germany, as well as Australia.
But the bulk of activity, Huffer says, appears to be concentrated elsewhere. Over the years he and Duncan Chappell have observed a shift from sites such as eBay – where the Melbourne listings were originally discovered, and which now has a policy banning the sale of human remains – to platforms such as Facebook, Etsy and Instagram. They attribute this to publicity around the issue, as well as some direct engagement with eBay in the United States by the Federal Bureau of Investigation.
These are sites where the identities and locations of buyers and sellers can be more easily disguised and their transactions kept less visible. Posts exchanged between collectors display a sense of camaraderie in the shared appreciation of human skulls and other apparently ancient bone or organic specimens, praising the rarity and beauty of others’ acquisitions and boasting of their own. Items can fetch hundreds or even thousands of dollars. Public discussion doesn’t tend to include information on how pieces were originally sourced, while payment and delivery details are confined to private messages. Some Facebook group discussions suggest participants are not oblivious to questions about the legality of their interests.
“A big component seems to be whoever gets the rarest item, the most macabre, the most bizarre, it instils a lot of value in what they’re trying to collect and seems to be a high motivation factor for continuing to try and collect and source even more strange material,” Huffer says.
He says some of the main “markets” are in Britain, the Netherlands and Belgium, where members are said to mostly collect human remains with likely European origins. The United States is another major market. Ethnographic items can be mixed with forgeries, or medical specimens, and come from a variety of places, including the Philippines, Papua New Guinea, and Indonesia. There’s apparently been recent interest in elongated skulls from Peru. Items entering Australia have tended to come from the Asia-Pacific region.
The mammoth challenge ahead for Huffer, Chappell and their colleagues is to quantify examples and identify trends and origins. Involvement from experts around the world is growing.
“It’s become a multi-focus, multidisciplinary effort between archaeologists, criminologists and online data-mining experts,” says Huffer.
Last year, Balinese authorities seized a human skull bound for a Canberra address. The sender, located in Indonesia, used a fake name and address, and fraudulently claimed on accompanying documents that the shipment contained a buffalo skull. It was packaged in a saucepan.
Chappell says Australian customs authorities have in recent months intercepted more human skulls.
The legal questions surrounding procurement, ownership and online trade of human remains are often intertwined and complex, as are issues of provenance and subsequent repatriation in cases where the items are suspected of being looted and a foreign country lays claim to them as having archaeological and cultural value.
Australia’s immigration department says its border force agency works with the Department of Communications and the Arts to enforce the Protection of Moveable Cultural Heritage Act at the border. Within its remit, the act provides for the return of foreign cultural property that has been illegally exported from its country of origin to Australia. It says border force has powers to hold objects suspected of being imported in breach of the act and refers such goods to the Department of Communications and the Arts for investigation and appropriate action. Special provisions exist for items from Syria or Iraq, which can be referred for investigation by the federal police and the Department of Foreign Affairs.
But Chappell, a member of the national cultural heritage committee – a federal advisory body – believes border force personnel are ill equipped and trained to identify the arrival of potentially looted cultural property containing human remains into Australia. Current Commonwealth laws, he says, are ineffective.
There are also complications caused by the legislation’s interaction with other jurisdictions.
“In each of the states and territories of Australia separate statutes apply to human remains, and the federal government doesn’t have any comprehensive oversight of any of this legislation,” Chappell says. “So, you have to look at each jurisdiction individually in order to decide what the legal situation is.”
The national cultural heritage laws haven’t been updated since their 1986 inception, and the federal government is currently considering an overhaul of the Protection of Moveable Cultural Heritage Act.
A government-commissioned review of the act by Sydney solicitor Shane Simpson recognises the effect of the internet on authorities’ ability to control what comes into Australia. Among his recommendations are those that seek to address provisions regarding evidentiary responsibility, as well as misalignment with other countries’ laws on prohibited exports of cultural artefacts, which can create challenges for investigation, seizure and prosecution of possible wrongdoing. Much of it concerns shifting the onus of proof regarding authenticity and provenance from the prosecution to the defendant.
Simpson appears to propose the possibility of creating offences even for people who did not originally procure illegal items, but purchased them from a seller. He wants expanded powers for border force.
The new laws encompassing these aspects, Simpson argues in his final report, “ensures [Australia’s] continued ability to fulfil our obligations under the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, [and] affords the opportunity to strengthen Australia’s commitment to protect foreign cultural material that has been stolen or looted”.
“The biggest problem with the law – when it comes to human remains – in many jurisdictions is the burden of proof and ownership,” says Damien Huffer. “The issue is having resources in the hands of the right people who can spot violations more, who can make more seizures, and give this more of the precedent in law enforcement that it needs to spur the legal side to adjust the laws. I don’t think it’s really there yet.”
This article was first published in the print edition of The Saturday Paper on Oct 21, 2017 as "Remains not to be seen".
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