PROTECTION OF MOVABLE CULTURAL HERITAGE ACT 1986 - SECT 37 Court proceedings

PROTECTION OF MOVABLE CULTURAL HERITAGE ACT 1986 - SECT 37

  (1)   Where:

  (a)   a protected object has been seized under this Act; and

  (b)   the object is not forfeited by section   36 or by or under this section;

the owner, or the person who had the possession, custody or control of the object immediately before it was seized, may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the object on the ground that the object is not forfeited or liable to be forfeited.

  (2)   Where:

  (a)   a protected object has been seized on the grounds that it is liable to forfeiture by virtue of subsection   9(2) or 14(1);

  (b)   a person brings an action for recovery of the object; and

  (c)   the person discontinues the action;

the object is forfeited.

  (3)   Where an action is brought for recovery of a protected object, the court shall determine, on a balance of probabilities, whether:

  (a)   the object is forfeited by virtue of subsection   9(1); or

  (b)   the object is liable to forfeiture by virtue of subsection   9(2) or 14(1);

and the court:

  (c)   where paragraph   (a) applies--shall reject the claim for recovery;

  (d)   where paragraph   (b) applies--shall order that the object is forfeited; or

  (e)   in any other case--may order the return of the object.

  (4)   Where a person is convicted of attempting to export a protected object in contravention of subsection   9(3) or of an offence against subsection   14(2) in relation to a protected object, the court shall order that the object is forfeited.