Brinsmead and Minister for the Arts
[2011] AATA 753
•26 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 753
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2011/0234
GENERAL ADMINISTRATIVE DIVISION ) Re Neil Brinsmead Applicant
And
Minister for the Arts
Respondent
DECISION
Tribunal Deputy President J W Constance
Mr C Ermert, Member
Date26 October 2011
PlaceMelbourne
Decision The decision of the Minister for the Arts made 9 December 2010 refusing a permit to export 1914 Marshall steam road locomotive serial number 65715, is affirmed. .....(sgd J W Constance).........
Deputy President
CATCHWORDS
PRIME MINISTER AND CABINET – 1914 Marshall steam road locomotive – six nominal horse power - Class B object – permit for export refused - whether the locomotive is of such importance to Australia or a part of Australia that its loss would significantly diminish the cultural heritage of Australia – decision under review affirmed
Protection of Movable Cultural Heritage Act 1986 (Cth) ss 3, 6(b), 7(1), 8, 9 and 10
Re Shortis and Secretary, Department of Community Services and Health (1991) 23 ALD 396
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
26 October 2011 Deputy President J W Constance
Mr C Ermert, MemberINTRODUCTION
1. Mr Brinsmead owns a 1914 Marshall steam road locomotive. Under the Protection of Movable Cultural Heritage Act 1986 (Cth) he requires a permit to export it.
2. The Minister has returned Mr Brinsmead’s application for a permit. Mr Brinsmead has applied to the Tribunal to review the Minister’s decision.
3. For the reasons which follow the decision under review will be affirmed.
4. In reaching our decision we are satisfied of the facts found on the balance of probabilities.
BACKGROUND
5. The locomotive is a double-crank-compound, three-speed six nominal horsepower road locomotive, serial no. 65715, manufactured by Marshall, Sons & Co. Ltd, Gainsborough, England in 1914.[1]
[1] Exhibit R6.
6. The following history of the locomotive is taken from the report of Mr Churchward, a Senior Curator at Museum Victoria and an expert examiner appointed under the Act. He has extensive experience in researching and documenting steam engines, particularly those used in the mining industry.
Imported through machinery agents, R. L. Scrutton & Co. Limited, of Sydney, in 1914, this Marshall road locomotive no. 65715 spent the whole of its working life in northern New South Wales. The engine initially worked at Dorrigo, a town situated in the Great Dividing Range at an elevation of 762 m (2, 500 ft) on the edge of the Dorrigo plateau, 60 kilometres inland of Coffs Harbour. The area was noted for its forestry and sawmilling, and it was probably this industry in which the engine was first employed. Although it’s earliest owner has not been identified.
In the early 1920s the engine was acquired by Tom Faint and shifted to Hillgrove, where it was used for the movement of vital supplies to local mines, including firewood, laths, props and stoping timbers, and for the relocation of heavy mining machinery such as boilers, portable and stationary steam engines, stamp batteries and other treatment plant.
The engine was also used as a stationary power source to drive Tom Faint’s sawmill at Hillgrove, for hauling saw logs to the mill and then for the movement of sawn timber to the mines and to other customers. In 1937 the sawmill supplied timber for a new wooden railed incline tramway the Metz goldmine, and the previous year, Tom Faint used the engine to relocate the weatherboard Hillgrove courthouse, which was divided in two and moved to separate sites in the township to be converted into houses. Tom Faint also used the engine to drive a stamp battery on his own gold mining lease and to perform a variety of farm work, including land clearing and seasonal contracting work threshing and chaff-cutting. [2]
[2] Exhibit R9.
LEGISLATION
7. Section 9 of the Act makes it unlawful to export an Australian protected object otherwise than in accordance with a permit or certificate. Australian protected object is defined in section 3 to mean “a Class A object or a Class B object.”
8. Section 8 provides for regulations to prescribe a ‘National Cultural Heritage Control List of objects that constitute the movable cultural heritage of Australia and are to be subject to export control.” The List is divided into Class A and Class B objects. The latter are “objects that are not to be exported otherwise than in accordance with a permit or certificate.”
9. Section 10 of the Act provides:
Grant of permits in respect of particular objects
(1) A person may apply to the Minister for a permit to export a Class B object.
(2) An application shall be made in writing in the prescribed form, or, if no form is prescribed, the form approved by the Minister.
(3) On receipt of an application, the Minister shall refer it to the Committee and the Committee shall refer it to one or more expert examiners.
(4) The expert examiner or examiners shall submit to the Committee a written report on the application, and the Committee shall forward the report to the Minister together with the written recommendations (if any) made by the Committee.
(5)The Minister shall consider the report and recommendations (if any) and:
(a) grant a permit to export the Class B object concerned, subject to such conditions (if any) as the Minister specifies; or
(b) refuse to grant a permit.
(6) In considering the application, an expert examiner, the Committee and the Minister:
(a) shall have regard, among other things, to the reasons referred to in subsection 7(1) that are relevant to the object to which the application relates; and
(b) if satisfied that the object is of such importance to Australia, or a part of Australia, for those reasons, that its loss to Australia would significantly diminish the cultural heritage of Australia--shall not recommend the grant of a permit, or grant a permit, as the case may be, to export the object permanently.
(7) If the Minister refuses to grant the permit, the Minister shall, within the prescribed period after the decision is made, cause to be served on the applicant notice in writing of the refusal, setting out the reasons for the refusal.
10. Section 7(1) provides in part:
(1) A reference in section 8 to the movable cultural heritage of Australia is a reference to objects that are of importance to Australia, or to a particular part of Australia, for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons, being objects falling within one or more of the following categories:
…
(g) objects of scientific or technological interest.
ISSUES FOR DETERMINATION
11. It is not in issue between the parties that the locomotive is a Class B object and therefore a permit for its export is required. Also it is not in dispute that the procedural steps required before a decision to grant or refuse a permit have been taken. These steps are set out in subsections 10(2) – 10(4) inclusive.
12. The issue we have to decide is as follows:
Is the locomotive of such importance to Australia, or a part of Australia, that its loss to Australia would significantly diminish the cultural heritage of Australia?
CONSIDERATION
13. Under section 7 of the Act we are required to consider the reports of the examiners and the recommendations of the Committee. We are required also to have regard, among other things, to the reasons referred to in subsection 7(1). These reasons have been set out above.
The reports of the expert examiners
Reports of Mr Churchward
14. The reports of Mr Churchward which were provided to the Committee are those of 2 June 2009 [3] and 31 March 2010. [4]
[3] Exhibit R9.
[4] Exhibit R10.
15. In his report of 2 June 2009 Mr Churchward stated:
The object is of significance to Australia as a rare surviving example of a 6 nominal horsepower compound road locomotive built by a leading British steam engine manufacturer and one of the leading importers of steam machinery into Australia during the period 1850 to 1940. The 3-speed road locomotive was the most sophisticated and expensive form of mobile steam engine sold in Australia. It can be regarded as a “thoroughbred” of the steam age, providing a benchmark against which all other traction engines were measured. The engine is also significant for its association with the prominent Hillgrove mining field in northern New South Wales and for the wide variety of industries in which it worked from agriculture and mining to sawmilling, land clearing and road haulage, all of which made a major contribution to Australia’s economic development during the first half of the 20th century. [5]
[5] Exhibit R9, p.3.
16. Mr Churchward then considered the following recommended assessment criteria:
1)the potential contribution of the object to yield information that will assist in an understanding of the history of Australia and Australians;
2)the association of the object with a notable Australian person, business, association or enterprise; the association of the object with a notable event or period in Australian history or prehistory;
3)the object’s importance in demonstrating a high degree of creative or technical achievement at a particular period of Australia’s history;
4)the existence, relevance and quantity of other similar objects, which are held in Australia, or are represented in Australian public collections.
Mr Churchward provided detailed material to show that the locomotive met each of the above criteria.
17. In response to the question “would the export of the object result in a significant loss to Australia’s cultural heritage” Mr Churchward reported:
In the examiner’s opinion the permanent export of this object would result in a significant loss to Australia’s cultural heritage. It is one of only two 6 nominal horsepower Marshall road locomotives imported into Australia between 1880 and 1936, and is one of only five surviving 3-speed Marshall road locomotives in Australia. Although the engine is unrestored and has been partially dismantled, this is not specifically relevant to its significance which is based on its rarity and long association with the Hillgrove mining field and the notable steam engine owner and operator Tom Faint.
If the engine were exported, its potential contribution to research, public display and interpretation of Australia’s significant mining, agricultural, sawmilling and road transport industries during the early 20th century would be lost.
The examiner has found no engines of equivalent quality held in public collections throughout Australia.
Reports of Mr Lamb
18. Mr Lamb is an expert examiner appointed under the Act. His reports of 12 July 2008 [6] and 12 December 2009 [7] were provided to the Committee.
[6] Exhibit R2.
[7] Exhibit R3.
19. In his report or 12 July 2008 Mr Lamb assessed the locomotive against the following criteria:
1)historic significance;
2)scientific/technical significance;
3)social or cultural significance;
4)provenance;
5)representativeness;
6)rarity;
7)condition, intactness and integrity;
8)interpretative potential.
He reported that the locomotive has significance in respect of each of the above criteria.
20.Mr Lamb concluded:
The engine has a well established provenance, and is representative of the classic iconic rural Australian lifestyle of an individual owner of a traction engine. The engine can be identified with the historic themes of promoting settlement and developing regional and national economics. Within these broad themes the engine is a significant representative example associated with the Australian themes of development including sawmilling and timber getting, land clearing for settlement and agriculture, road haulage and transport of goods, the movement of buildings, processing of crops for agriculture, and mining and prospecting.
The engine is significant as a rare surviving example of a Marshall built road locomotive. It is very rare as one of only two six nominal horsepower road locomotives, and exhibits modification to suit Australian conditions. The engine is a very intact example with high integrity and high interpretative potential. [8]
[8] Exhibit R2, p.9.
Recommendations of the National Cultural Heritage Committee
21. The Committee met on 25 August 2010. The Minutes of that meeting are in evidence as Exhibit T1.
22. The Committee considered the reports of Mr Churchward and Mr Lamb and noted that both experts recommended that an export permit for the locomotive be refused. It considered also the views expressed by Mr Brinsmead and the examiners’ comments in response.
23. The rebuttal put on behalf of Mr Brinsmead is noted as follows:
·Engine 65715 is not classed as a road locomotive. Marshall’s erecting sheets refer to the engine as ‘A 6HP Compound traction’.
·Both examiners claim that Tom Faint personally operated this engine when in fact Mr Wally Wilkinson commenced driving this engine when it was new for Brooklana Timber Co., Dorrigo. When the engine was sold to Tom Faint, Mr Wilkinson commenced employment as the driver of the engine.
·The diameter of the wheels are not larger than usual as stated by one examiner, they are a standard 6 foot Marshall wheels.
·One examiner states “this engine is particularly significant for its 50 year association with Hillgrove”. The engine was built in 1914, it was sold to Tom Faint of Hillgrove sometime in the 1920s and then sold to southern highlands Transport Museum in 1966 after 30 years of being inactive. This means that it only had a 10 – 14 year working like [sic] in Hillgrove.
24.The Committee unanimously passed the following resolution:
The NCHC agrees with both EEs that the [engine not relevant to these proceedings] and Marshall Road Locomotive (engine no 65715) are Class B Australian protected objects, and should be refused export permits, with the recommendation that an appropriate organisation in Armidale should be approached concerning placement in a local collection.
Conclusion
25. When reviewing a decision, the Tribunal is said to be standing in the shoes of the decision-maker.In this application we are reviewing the decision of the Minister and are subject to the same restrictions (if any) as are imposed on him by the Act. A similar situation was considered by the Tribunal in Re Shortis and Secretary, Department of Community Services and Health[9] and the same conclusion was reached.
[9] (1991) 23 ALD 396.
26. Section 10 of the Act sets out a procedure to be followed in relation to the granting or refusal of a permit. This procedure can be summarised as follows:
·application to the Minister - s.10(2);
·the Minister refers the application to the Committee - s.10(3);
·the Committee refers the application to one or more expert examiners – s.10(3);
·each expert examiner submits a report to the Committee – s.10(4);
·the Committee forwards to the Minister the report or reports together with the written recommendations (if any) made by the Committee – s.10(4);
·having been required to consider the report(s) and the written recommendations (if any), the Minister decides to grant or to refuse the permit – s.10(5).
27. In our view section 10 prescribes the material which the Minister, and therefore the Tribunal, is to take into account in reaching the decision to grant or refuse a permit. This material is set out in sub-section 10(5), namely the reports of the expert examiners and the recommendations (if any) of the Committee. To take into account other evidentiary material would be to take into account irrelevant considerations.
28. Subsection 10(6) provides that regard shall be had, “among other things” to the reasons referred to in subsection 7(1). These reasons are “ethnological, archaeological, historical, literary, artistic, scientific or technological.” In our view the provisions of subsection 10(6) do not over-ride the clear provisions of subsection 10(5) and do not add to the material to be considered. Subsection 10(6) simply provides that the decision-maker is to take into account the reasons referred to in subsection 7(1).
29. In reaching this conclusion we have considered carefully the judgement of the High Court of Australia in Shi v Migration Agents Registration Authority.[10] Having considered the legislation giving the power to review and the provisions of the Administrative Appeals Tribunal Act 1975 (Cth), we remain of the view that the legislation is clear that the material to be taken into account is that contained in the reports submitted to the Committee and the recommendation of the Committee. It should be noted that the legislation would not have excluded our considering any further reports which had been submitted to the Committee and/or any recommendation made by the Committee after the Minister made his decision, however there is no such material before us.
[10] (2008) 235 CLR 286.
30. The recommendations of the Committee and of both expert examiners are that the request for a permit to export the locomotive should be refused.
31. Both expert examiners are very experienced in their respective fields and provided detailed and well-reasoned reports. In particular Mr Lamb addressed the technical aspects of the locomotive and Mr Churchward addressed the history of the engine and its value as a means of telling a story of part of Australia’s history. We find their arguments convincing.
32. We have taken into account also the recommendation of the Committee. We note that the Committee considered the reports of the expert examiners together with the issues raised by Mr Brinsmead. The issues relate to relatively minor details and are not of sufficient importance to justify our disregarding the opinions and findings of the expert examiners.
33. Mr Brinsmead did not give evidence, nor did he call any witnesses or tender any documents. It was argued on his behalf that we should take into account:
·that almost four years had elapsed since he applied for the permit;
·that he was not in good health;
·that the Second Reading speech indicated that we should consider whether the loss of the locomotive would be an irreparable loss; that similar machines remain in Australia and that differences between the machines are cosmetic only;
·the documentation in respect of the locomotive is not strong;
·there are a number of machines of similar quality in Australia.
34. We are satisfied that considerations relating to the time taken for the matter to reach a hearing and Mr Brinsmead’s health are not relevant to the issue before us in this application. There is no provision of the Act which requires or permits these considerations to be taken into account.
35. The words of subsection 10(6)(b) are clear as to that of which the decision-maker must be satisfied before a permit is refused. The requirement of the Act cannot be substituted by an alternative test referring to “irreparable loss”.
36. We do not agree that the documentation in respect of the locomotive is not strong. Several photographs of the locomotive have been located. In any event, a paucity of documentation would not cause us to reach a different conclusion, taking into account the oral history which has been obtained.
37. In view of the reports of the expert examiners we do not accept the argument that there are a number of machines of similar quality. We accept the opinions and facts stated in the reports that this locomotive has a particular provenance and fulfilled a particular role in the Hillgrove area.
38. On the basis of the material contained in the reports of the expert examiners and the recommendation of the Committee we are satisfied that the locomotive is of such importance to Australia, or alternatively to the Hillgrove District in northern New South Wales, that its loss to Australia would significantly diminish the cultural heritage of Australia.
Consideration of the position if the Tribunal is required to consider all of the evidence before it
39. We are aware that a number of applications to the Tribunal, similar to that made by Mr Brinsmead, have been decided on the basis of additional evidence placed before the Tribunal at the hearing. This was evidence which had not been put before the Committee.
40. At the hearing of this application the Minister called both Mr Churchward and Mr Lamb to give evidence. This evidence was consistent with the facts and opinions stated in their reports to which we have referred.
41. Further evidence was given in support of the Minister’s case by Mr Evans, who has substantial experience in researching and writing about Australia’s industrial history and in restoring, maintaining and operating steam machinery. Reports by Mr Evans dated 5 August 2011 and 24 August 2011 are in evidence.[11]
[11] Exhibits R7 & R8 respectively.
42. Mr Evans gave evidence that the locomotive is in “very complete” condition. In his opinion the parts missing could readily be located or fabricated at reasonable expense.
43. As noted earlier in these reasons Mr Brinsmead did not give evidence, he did not call any witnesses nor did he tender any documents.
44. The additional evidence before us strongly supports the view we have reached based on the opinion of the Committee and the reports it received. If we are incorrect in our view as to the material we should take into account, we would reach the same conclusion on the basis of the additional evidence received at the hearing.
DECISION
45. For the reasons given, the decision of the Minister for the Arts made 9 December 2010 refusing a permit to export 1914 Marshall steam road locomotive serial number 65715, will be affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W ConstanceMr C Ermert, Member
Signed: ..........(sgd K Peterson).....................
Ms K Peterson, AssociateDates of Hearing 29 and 30 August 2011
Date of Decision 26 October 2011
Counsel for the Applicant Mr L McConchie
Counsel for the Respondent Mr A Berger
Solicitor for the Respondent Ms C Mann, Australian Government Solicitor
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