Drew and Minister for Communications and the Arts

[2016] AATA 601

Drew and Minister for Communications and the Arts [2016] AATA 601 (15 August 2016)

Division	GENERAL DIVISION
File Number	2015/5093
Re	Erica Drew
APPLICANT
And	Minister for Communications and the Arts
RESPONDENT

DECISION

Tribunal	The Hon. Dennis Cowdroy OAM QC Senior Member J F Toohey
Date	15 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

...........................[sgd].............................................

The Hon. Dennis Cowdroy OAM QC

CATCHWORDS

APPLICATION FOR PERMIT TO EXPORT WORK OF ART – cultural heritage object – whether grant of permit would significantly diminish Australia’s cultural heritage – decision under review affirmed  

LEGISLATION

Protection of Movable Cultural Heritage Act 1986, ss 7, 9, 8, 10, 17, 22, 23, 48.

Protection of Movable Cultural Heritage Regulations 1987, reg 4, schedule 1.

CASES

J B Hawkins Antiques and Minister of Communications and the Arts [1995] AATA 194

Terrence Albert David Truswell and Minister of Communications and the Arts [1996] AATA 154

Vulcan Australia Pty Ltd and Comptroller-General of Customs and Dimplex Australia Pty Ltd [1994] AATA 150

SECONDARY MATERIALS

Guidelines for expert examiners under the Protection of Movable Cultural Heritage Act 1986, Department of Communications and the Arts, 1 July 2014

Oxford English Dictionary (online), Oxford University Press, 2016

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC
Senior Member J F Toohey

15 August 2016

Background

1. The applicant represents the owner of an oil painting titled Snack Bar, painted in 1944 by Australian artist, Herbert Badham. The owner, who permanently resides in England, purchased the painting at auction in Sydney in May 2015 for $465,000 and wishes to hang it in his London home with his collection of Australian art.

2. By reason of having been painted in Australia by an Australian, and its age and value, Snack Bar is a Protected Object Class B for the purposes of the Protection of Movable Cultural Heritage Act 1986 (the Act). As a protected object, it may not be permanently exported otherwise than in accordance with a permit granted by the Minister for Communication and the Arts (the Minister).

3. On 28 August 2015, the Minister, acting on the recommendation of the National Cultural Heritage Committee (the Committee), determined that a permit for the export of Snack Bar should not be granted on the ground that it is of such importance to Australia that its loss would significantly diminish Australia’s cultural heritage.  The applicant seeks review of that decision.

   Herbert Badham and Snack Bar

4. Information before the Tribunal shows that Herbert Badham was born in Sydney in 1899.  He studied at the Sydney Art School and taught at East Sydney Technical College, later the National Art School, from 1938 until his death in 1961.  His subjects were typical of Sydney’s 1930s and 1940s modernist artists: harbour and beach scenes, everyday urban life and figure studies.  He published two surveys of art history: A Study of Australian Art, published in 1949, and A Gallery of Australian Art, published in 1954. 

5. Snack Bar is an oil painting on pulp board, measuring 41.5 cm x 50 cm.  It depicts American servicemen, one of whom is African American, socialising with Australian civilians in a café in Sydney, believed to be the Hasty Tasty snack bar, a wartime eatery in King’s Cross (although this has not been verified). 

6. The expert examiners who provided advice to the Committee and gave evidence before the Tribunal agree that, although his output was small, Badham was an important Australian painter.  They agree that Snack Bar has aesthetic value and that its subject is of historical significance.  They disagree about Badham’s significance as an artist and, in particular, about the degree of aesthetic and historical significance of Snack Bar.  They disagree as to whether it is of such importance that its loss would significantly diminish Australia’s cultural heritage.

   The legislative framework

7. The Act provides for the protection of objects that constitute the movable cultural heritage of Australia by making their permanent export subject to control.  It is an offence to export, or attempt to export, a protected object otherwise than in accordance with the necessary permit or certificate: subsection 9(3).

8. A reference in the Act 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 a number of categories: subsection 7(1).  They include objects of fine art.

9. It is common ground that the reasons in subsection 7(1) relevant to Snack Bar are historical and artistic. 

10. Subsection 8(1) of the Act establishes the National Cultural Heritage Control List which provides for categories of objects that constitute the movable cultural heritage of Australia and are subject to export control.  By subsection 8(2), objects are divided into two classes:

    (a)Class A objects, being objects that are not to be exported otherwise than in accordance with a certificate; and

    (b)Class B objects, being objects that are not to be exported otherwise than in accordance with a permit or certificate.

11. Schedule 1 to the Protection of Movable Cultural Heritage Regulations 1987 (the Regulations) sets out the categories of objects that constitute the movable cultural heritage of Australia for the purposes of subsection 8(1): reg 4.

12. Part 5 of schedule 1 lists heritage objects of the category Objects of Fine or Decorative Art.  Item 5.2 provides that an object is in this category if:

    (a)it is an Australia-related object; and

    (b)for an object mentioned in Part 1 of the table following item 5.3 — it is at least 20 years old; and

    (c)for an object mentioned in Part 2 of the table following item 5.3 — it is at least 30 years old.

13. Item 5.6 provides that Australia-related object means an object designed or made:

    (a)in or outside Australia by an Australian; or

    (b)in Australia by a foreign person who, at some time, worked or resided in Australia; or

    (c)outside Australia by a foreign person, if the object incorporates Australian motifs or subject-matter, or is otherwise relevant to Australia.

14. Part 1 of the table concerns objects of Aboriginal or Torres Strait Islander fine or decorative art and is not relevant for present purposes.  Item 13 in Part 2 of the table relates to paintings of an Australian market value “of at least” $250,000.  

15. It is common ground that Snack Bar is a Protected Object Class B for the purposes of the Act and may not be exported otherwise than in accordance with a permit granted by the Minister.

    Scheme for grant of permits in respect of particular objects: s 10

16. A person may apply to the Minister for a permit to export a Protected Object Class B: subsections 10(1) and (2).  On receipt of an application, the Minister must refer it to the Committee: subsection 10(3).  The Committee comprises ten persons appointed by the Minister on a part-time basis for up to four years: subsection 17(1) and 17 (2).

17. The Committee must maintain a register of persons whom it has determined to be expert examiners for the purposes of the Act: subsection 22(1). The function of an expert examiner is to give advice to the Committee on a matter referred by it: s 23.

18. On receiving a referral from the Minister, the Committee must refer the matter to one or more expert examiners who must submit to the Committee a written report on the application.  The Committee must forward the report of the expert examiner or examiners to the Minister together with its written recommendations, if any: subsection 10(4).

19. The Minister must consider the report and any recommendations and either grant a permit subject to such conditions, if any, as he or she specifies, or refuse to grant the permit: subsection 10(5).

20. Subsection 10(6) provides that, in considering an 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.

    Guidelines for expert examiners

21. The Committee’s Secretariat has issued guidelines to assist expert examiners in performing their role: Guidelines for expert examiners under the Protection of Movable Cultural Heritage Act 1986 (the Guidelines).  The Guidelines are not binding on the Tribunal but they represent policy and, in the interests of consistency of decision-making, the Tribunal should consider the matters set out in them in making its decision.

22. According to the Guidelines, significance means “the historic, aesthetic, scientific and social values that an object or collection has for past, present and future generations”.  It is not fixed and may change over time; it includes “all the elements that contribute to an objects meaning including its context, history, uses and social and cultural significance”.

23. The Guidelines draw on “standard assessment criteria used by museums across Australia as a guide or framework to evaluate the significance of objects and collections”. They comprise four primary criteria: historic, aesthetic, scientific, social or cultural significance, and five comparative criteria used to evaluate the degree of significance: provenance, representativeness, rarity, condition or intactness, and interpretive potential.

24. The primary criteria of relevance in this case are historic significance, meaning an object’s “association with people, events, places and themes” and what it tells us about a historic theme or process or pattern of life; and aesthetic significance, meaning its “craftsmanship, style, technical excellence, beauty, and demonstration of skill and quality of design and excellence”, including whether it is a good example of a style, design, artistic movement or of the artist’s work. 

25. Related to historic significance is an object’s social or cultural significance, meaning its importance to the community as demonstrated through a community’s strong affection for it and how it contributes to a community’s identity and social cohesion.

26. The comparative criterion of particular relevance in this case is interpretive potential, meaning the potential capacity of an object to interpret and demonstrate aspects of experience, historical themes, people and activities.

    The Committee’s first report to the Minister

27. On 31 July 2015, the Committee met to consider the application for the permanent export permit for Snack Bar.  It had before it significance assessments completed by two expert examiners who arrived at opposing conclusions as to whether it was of such importance that its loss would significantly diminish Australia’s cultural heritage.  The Committee recommended that the permit not be granted.  On 28 August 2015, the Minister accepted that recommendation and refused the permit.

    The application for review

28. By subsection 48(1), the Tribunal may review a decision by the Minister to refuse to grant a permit or certificate.  On 25 September 2015, the applicant sought review of the Minister’s decision. 

29. On 24 February 2016, the applicant filed an “amended application” which included additional information in support of the application, including an assessment of Snack Bar by Deborah Edwards, Senior Curator of Australian Art at the Art Gallery of New South Wales, and short form opinions from Dr David Hansen from the School of Art at the Australian National University, and letters from Edmund Capon, former Director of the Art Gallery of New South Wales; Jeffrey Smith, chairman of Sotheby’s Australia; and Chris Deutscher, Executive Director of Deutscher and Hackett which conducted the May 2015 auction.

30. At a preliminary hearing on 9 March 2016, the Tribunal heard argument as to whether it could consider the additional information in the amended application or whether it was confined to the assessments on which the Committee based its recommendation to the Minister.  It was agreed that the additional information could be referred to the Committee for its consideration.

31. The Committee referred the amended application with the additional information to three expert examiners, Cherie Prosser, Gavin Fry and Aaron Pegram.  Ms Prosser is Assistant Curator of Art at the Australian War Memorial.  Mr Fry has worked for many years in Australian museums and galleries including seven years as Senior Curator of Art at the Australian War Memorial.  He wrote the catalogue essay for the 2015 auction of Snack Bar.  Mr Pegram is Senior Historian in the Military History Section at the Australian War Memorial.  

32. Ms Prosser and Mr Fry were expert examiners for the purposes of the Committee’s first report. Ms Prosser was not in a position to review the amended application but advised the Committee by email that she stood by her opinion that the export of Snack Bar would significantly diminish the cultural heritage of Australia.  Contrary to his earlier opinion, Mr Fry concurred with Ms Prosser.  Mr Pegram concluded that the export of Snack Bar would not significantly diminish the cultural heritage of Australia. 

33. On 5 April 2014, having considered the expert examiners’ opinions, the Committee reported that it had no reason to change its original opinion and recommended that the permit not be granted. 

    Evidence before the Tribunal

34. The Tribunal has before it the written opinions of the experts.  Ms Edwards, Dr Hansen, Mr Fry and Mr Pegram gave oral evidence concurrently.  Ms Prosser was not available to give evidence. Professor Duncan Chapell, a member of the Committee, also gave evidence.  The Tribunal also has before it documents submitted by the parties.

35. There is no dispute that each of the experts is well qualified to offer an opinion in this matter, although Mr Pegram does not profess any expertise in war art or Australian art generally.  His expertise is in Australian military history, primarily World War I, but he also has expertise on the Australian home front during World War II. 

36. The experts agree that Herbert Badham is an important Australian painter.  He exhibited with the Society of Artists throughout his life and was included in a number of exhibitions, including the Sydney Art School 1890-1993, and 150 years of Australian Art at the Art Gallery of New South Wales in 1938.  There was renewed interest in his work in the late 1970s and 1980s with a retrospective at the Macquarie Galleries and a touring retrospective produced by SH Ervin Gallery. A small painting was included in the 2013 exhibition at the Art Gallery of New South Wales, Sydney Moderns, Art for a New World.  Eighteen of his paintings are held in public collections at the Australian War Memorial, and in state and regional galleries.

37. Partly because of his small output, Badham’s works come up for sale infrequently.  Throughout the 1990s, most of his works fetched less than $40,000 at auction but prices have increased considerably in recent years.  Between 1990 and 2015, five works sold at auction for between $66,000 and $80,000.  In the past three years, four works, including Snack Bar, have sold for amounts between $207,000 and $732,000.

38. Ms Edwards describes Badham as “an artist of importance to Australian art history” and “a very competent and indeed at his most significant, a very interesting tonal realist of the 1930s and 1940s primarily”.  Dr Hansen describes him as “one of the ‘outliers’ of Australian art history” who has been “unreasonably neglected by scholars and the market”.  Ms Prosser describes him as “an artist important to Australian art history” and Mr Fry describes him as “a notable Australian artist” and “of considerable influence through his writing and teaching”. 

39. The experts diverge on the extent of Badham’s importance as an artist.  For the applicant it is submitted that he is given “little more than a fleeting reference” in any Australian art reference books and he has never been elevated to a position of significance in the league of modernists such as Margaret Preston, Roy de Maistre or Grace Cossington-Smith, nor as a social commentator of the likes of Russell Drysdale or William Dobell. 

40. The applicant submits that, although Badham is well-represented in national, state and regional collections, they rarely display his works or use them in exhibitions.  A proposal to mount a touring exhibition of his work in 1981 was met with insufficient interest and he was not included in the exhibition Reality in Flames - Modern Australian Art & the Second World War recently on show by the Australian War Memorial.  The applicant submits that this lack of interest reflects Badham’s relative lack of importance as an artist.  Against that background, it is worth noting that the Australian War Museum was an under-bidder for Snack Bar at the recent auction.

41. For the respondent it is submitted that the fact that Badham has not been the subject of major exhibitions, and that curators have shown less interest in him that other Australian artists of his time, does not detract from his importance as an artist or the significance for Australia’s cultural heritage of Snack Bar.  In particular, it is submitted that recent sales indicate renewed interest in Badham and demonstrate his importance as an artist.

    Ms Edwards

42. Ms Edwards gave evidence that Badham is not a central figure of Australian art history; his output has long been recognised as mixed aesthetic quality and his reputation was more as a writer and teacher than as a painter.  He has not been the subject of any major state or national gallery sponsored retrospective or the subject of a comprehensive monograph. 

43. In Ms Edwards’ opinion, the fact that Badham has not been extensively collected reflects the fact that curators have not generally considered his art a priority for acquisition over other Australian artworks of greater artistic importance, and the recent interest and high prices achieved at auction do not make him now a central figure of Australian art.

44. Ms Edwards agrees that Snack Bar is of undeniable social and historic interest but not of any cultural significance.  In her view it is not of exceptional or seminal artistic excellence or historical significance, and believes it would not be viewed by most experts as aesthetically exceptional or innovative. Badham’s most significant painting of wartime events, both aesthetically and historically, is The Fairground held by the Australian War Memorial.

45. Ms Edwards gave evidence that Snack Bar is “a very interesting and idiosyncratic imaging of a specific cultural and social moment in Australian history” and its depiction of Australian locals along with several American sailors and army personnel is of historical significance, but “wartime at home” has been portrayed by more important Australian artists including Margaret Preston, Albert Tucker, Sidney Nolan, William Dobell, Donald Friend, John Perceval and Noel Counihan, many of whom, in her view, have addressed the subject “with more political, aesthetic, emotional and social charge”.  By contrast, Snack Bar is a “relatively neutral social vignette” and Badham’s tendency to caricature diminishes its aesthetic quality.

46. Ms Edwards does not consider Snack Bar of such importance that its loss to Australia would significantly diminish Australia’s cultural heritage.

    Dr Hansen

47. Dr Hansen agrees with Ms Edwards.  He gave evidence that Badham cannot be regarded as a major figure in the history of Australian art.  He merits only a single paragraph in McCulloch’s Encyclopaedia of Australian Art, and has no biography at all in the online dictionary Design and Art Australia Online; the fact that Badham is not well represented in public collections reflects his relatively low position in curatorial hierarchies and priorities.

1. In Dr Hansen’s view, Snack Bar is of particular appeal to a “secondary market” for its “wry and satirical” observation of a social scene but the arguments against the export permit focus too narrowly on the social interaction between American military personnel and Australian civilians during World War II, a subject addressed in the Victory Girls paintings of Albert Tucker and in the work of Noel Counihan, William Dobell, RC Hodgkinson, John Perceval and Danila Vassilieff.  He agrees with Ms Edwards that the subject of soldiers and civilians is treated in Badham’s work The Fairground held in the Australian War Memorial.

2. Dr Hansen gave evidence that the price paid for Snack Bar at auction was the direct result of the “phenomenal” price paid for Badham’s painting Travellers which sold at auction in 2013 for $732,000.  He believes Badham is having his “moment in the sun” in the secondary market after which things will settle down.

3. Dr Hansen and Ms Edwards agreed they could not think of another painting of a comparable scene in Sydney in the 1940s, in particular showing interaction with an African American serviceman.

   Ms Prosser

4. In her assessment for the Committee, Ms Prosser stated that Badham’s paintings of wartime subjects are “unique social history documents”.  Unlike other modernists such as Albert Tucker, his “theatrically composed urban subjects are neatly restrained yet they still comment on the evolving social, gender and racial changes occurring as a result of the Second World War [and] present a counterpoint to Tucker’s work in their depiction of wartime change in 1940s Australia”. 

5. Ms Prosser stated that no other paintings in Australian public collections which reference the American presence in Australia have the “modernist social realist edge which permeates Badham’s unique ability for social insight into the changing social situation in Australia during the Second World War”.

6. Ms Prosser regards Snack Bar as “a significant document reflecting the social mix of Australians and international servicemen present in Sydney during the Second World War”. It provides “an important visual record of American servicemen mixing with everyday Australian working men and women during the war” reflecting “an important wartime experience”.  There are few comparable examples of works of art by Australian painters that capture the same subject matter or are painted in Badham’s social realist style.  She considers it “indispensable to the Australian public”.

7. Ms Prosser describes Snack Bar as the only known painting of the interior of the iconic Hasty Tasty snack bar, “a popular inexpensive dining place which offered visiting American servicemen breakfast in Kings Cross” and the first 24-hour fast food café in Sydney. 

8. We understand that no one has been able to verify that the café in Snack Bar is in fact the Hasty Tasty.  If it is, it adds an element of local interest and significance, but in our view it does not detract from the painting’s importance if it is not.

   Mr Fry

9. In his first report, Mr Fry recommended in favour of granting the export permit.  In his second report, he recommended against the permit.  He gave evidence that, in the meantime, he had researched and written on another Badham wartime painting, Pitt Street, Sydney and “after considerable analysis” he changed his mind about Snack Bar.  He gave evidence that he was “of two minds” on the first occasion but it did not take much for him to change his mind, as the close similarity in his reports indicates.

10. In Mr Fry’s opinion, Mr Badham is a “major figure in Australian art history” and his style of modernism represents an important moment in Australian art.   He was “highly thought of in his own time”; he was the first person to write a comprehensive history of Australian art and his teaching work over many decades was influential.  His work is technically sophisticated, beautifully designed and well executed, and it offers an alternative viewpoint to artists such as Albert Tucker, Sidney Nolan and Arthur Boyd, whose paintings are usually regarded as representative of Australian art of the World War II period.

11. Mr Fry acquired Badham’s work Fairground for the Australian War museum.  He gave evidence that it is “totally different” from Snack Bar which is significant because it is one of a small number of works depicting interactions between American servicemen and local people.  He considers Snack Bar the most complex of Badhan’s figure compositions in terms of the numbers of recognisable individuals depicted in the way in which they occupy the small space of the café, and quite different in style, mood, execution and social context to others’ work.

12. Mr Fry believes that the increase in prices at auction over recent years suggests he is not alone in his assessment of Badham’s importance.  He does not agree that representation in galleries is necessarily indicative of an artist’s importance or reflects a consensus of informed opinion as to an artists’ importance; rather, that fashion plays a large part. 

    Mr Pegram

13. In Mr Pegram’s view, the export of Snack Bar will not diminish the cultural heritage of Australia.  He gave evidence that the main theme of Snack Bar is the “mood of relaxed tension in Sydney two years after the bombing of Darwin and submarine attacks in Sydney Harbour”. Despite the prejudice and racial discrimination faced by African American servicemen at home and in the American forces, it portrays an African American sailor conversing with an Australian woman in an encounter that evidently challenges the racial prejudice prevalent in America at the time. However, while it is “an interesting feature” of the painting, it is not its focus; it tells a broader story of the impact of World War II on the Australian home front in the final years of the war.

14. Mr Pegram believes the depiction of the Hasty Tasty all-night café is of particular interest because it was a “hot spot” for British and American sailors who wandered Kings Cross while on shore leave, and it was one of the first meeting places of Australia’s first Alcoholics Anonymous groups, but this part of its history is “sufficiently represented” in the photographic collection of the State Library of New South Wales.  While it would be “a shame to lose such an interesting piece”, its historical significance to Australian social and military history is marginal and already covered in a number of national and state based institutions.

15. Mr Pegram concluded his report with the observation that there is the possibility that the painting may return to Australia with the owner if he or she decides to do so in the future.  For the reasons below, that is not a relevant consideration here.

    Duncan Chappell

16. Professor Chappell was a member of the Committee that made the initial and updated recommendations concerning Snack Bar.  He gave evidence that the Committee’s views were that the recommendations in favour of granting the permit ignored the fact that an artist’s significance may change over time.  He acknowledged that price is not one of the statutory criteria, but said it was very unlikely that a work would fetch such a high price unless it was significant.  He gave evidence that the historical, aesthetic and social significance of Snack Bar were the dominant considerations.

    What is the “cultural heritage of Australia”?

17. The Act requires the Tribunal to consider what effect, if any, the permanent loss of Snack Bar would have on the “cultural heritage of Australia”.  Nothing in the Act, Regulations, or Guidelines assist with the meaning of those words.

18. In Terrence Albert David Truswell and Minister of Communications and the Arts [1996] AATA 154 (Truswell), the Tribunal observed that the meaning of the phrase “cultural heritage of Australia” had not been considered in previous cases although heritage and culture have been the subject of enactments at Commonwealth and State level, notably the Australian Heritage Commission Act 1975 (since repealed) and the World Heritage Properties Conservation Act 1983.

19. For the reasons given by the Tribunal in Truswell at [112] (and in J B Hawkins Antiques and Minister of Communications and the Arts [1995] AATA 194), we agree that the words “cultural heritage” should be given their ordinary meaning as follows:

    …Cultural heritage is that which is inherited by a society or group about its customs, achievements, product and outlook, its artistic and intellectual development and its forms, stages and types of intellectual development or civilisation.  It follows that cultural heritage includes not only tangible property such as objects or land but also the intangibles such as customs, outlook, religion, folk-lore, music or history.

    Is Snack Bar of such importance that its loss would significantly diminish the cultural heritage of Australia?

20. We have not had the opportunity of viewing Snack Bar ourselves, but we have had the benefit of what appears to be a faithful photocopy.

21. The test in subsection 10(6) comprises two elements: the degree of importance of the protected object and the degree to which its loss would diminish Australia’s cultural heritage.  In reality, the two are virtually indistinguishable; the degree of loss and whether it is “significant” follows from the degree of importance.

22. The Oxford English Dictionary relevantly defines “importance” as:

    1The fact or quality of being important or urgent; that which is important.

    (a)The fact or quality of being important; (with modifying word or phrase) the degree or extent to which something is important; (great) significance or consequence.

    …

    5Meaning, significance.

23. We agree with the Tribunal’s observation in Vulcan Australia and Comptroller-General of Customs and Dimplex Australia Pty Ltd [1994] AATA 150 at [72] that “there is necessarily a fair degree of value-judgement involved in attributing significance to something”. Significance will depend upon context and the answer to the subsidiary question: significant for what? Statutory criteria determine the scope and nature of the enquiry but there will always be room for reasonable minds to differ.

24. Each of the experts who gave evidence is eminently qualified to offer an opinion on the importance of Badham and the significance of any diminution of Australia’s cultural heritage that would be occasioned by the permanent export of Snack Bar.  Their divergent views only illustrate that reasonable minds may differ. 

25. We acknowledge the valuable expertise in military history that Mr Pegram brought to this matter but the fact that the interior of the Hasty Tasty café (if that is what it is) and similar scenes are documented in photographic collections is not persuasive.  The importance of a painting and its cultural significance are broader than its documentary value.  Also, as set out below, Mr Pegram placed some importance on the owner’s undertaking to make Snack Bar available for public exhibition if deemed suitable.  That is not a relevant consideration for present purposes.  For these reasons we place less weight on Mr Pegram’s views than those of the other exerts. 

26. We prefer the opinions of Ms Prosser and Mr Fry to those of Ms Edwards and Dr Hansen.  In our view, a combination of factors makes Snack Bar of particular importance.  It was painted by an Australian artist of acknowledged importance whose output was small.  The number of Badham’s painting in public collections is relatively small.  The permanent export of any of his paintings should therefore be approached with some caution. 

27. Snack Bar is of historic significance for its depiction of American serviceman and local civilians during wartime and, in particular, the “mood of relaxed tension in Sydney” after the bombing of Darwin and submarine attacks in Sydney Harbour.  We accept Ms Prosser’s comment that it presents Australia as the country “on the brink of social change in relation to gender and social norms”. We accept the submission for the respondent that it contributes to Australia’s identity in capturing the theme of change brought about by the influx of American servicemen in Australia during World War II and their impact on Australian social identity.

28. Snack Bar is unique in its portrayal of the interaction between an African American serviceman and a local woman.  The experts agree that they know of no other painting that documents a similar interaction.  That might not be significant except for the social and historic context of the time, in particular the racial discrimination faced at home by African Americans including servicemen, as described by Mr Pegram.  The fact that it is not the central theme of the work does not detract from the unique social commentary it offers.

29. There is no dispute between the experts that Snack Bar is well designed and executed and is an excellent example of Badham’s work. That does not necessarily mean it is of particular aesthetic significance but it underlines its historic importance.  We note the opinions that Badham is not ranked in the first tier of Australian artists.  However, this fact is not conclusive.  Other factors, including the subject matter and its method of execution are also factors to be considered.

30. We accept that the market does not necessarily reflect a painting’s long term significance for Australia’s cultural heritage, and that art works are subject to fashion and fads.  However, the evidence is that there has been a steady increase in the price of Badham’s work in recent years.  The increase in the past three years has been substantial, although it must be acknowledged that it involved only four paintings.  We are not persuaded that the increase is accounted for by fashion alone.

31. There is no argument that Badham was an important and influential artist, teacher and writer and that Snack Bar is a particularly good example of his work.  It is of relative rarity in that his output was small and because he was one of only a small number of artists who produced work in Australia during World War II.  The subject of Snack Bar is relatively rare and the depiction of the particular serviceman and female civilian is unique.

32. We are satisfied that Snack Bar is of such importance that its loss would significantly diminish the cultural heritage of Australia.  No other painting exists which depicts the café life in Sydney during the perilous years of World War II.  The subject matter, which graphically records the interaction of different races, associating in congenial circumstances at a time of great danger for Australia, is deeply impressive.

    Availability for return

33. The owner of Snack Bar has provided a letter in support of the application in which he outlines his involvement in important museums and institutions in London, and his substantial collection of Australian art.  He says it has always been his intention to make relevant works from his collection available for loan to public institutions in Australia and throughout the world for public exhibitions that further the understanding, appreciation and promotion of Australian art and artists in particular. For this reason, he says, Snack Bar could not be considered “lost” to the nation if the permit were granted. 

34. We have no reason to doubt what the owner says.  Nevertheless, the Tribunal considers that the removal of such a painting will deprive future generations of the opportunity of viewing such a work. The applicant’s thoughtful offer may be valid for his lifetime but does not address the long term future of the artwork.  The Tribunal is satisfied that the painting depicts a critical stage in Australia’s history both relating to its wartime history and its development as a harmonious and racially integrated nation. It will show future generations an aspect of Australia’s development as a multicultural society. 

35. We agree with the observations made by the Tribunal in J B Hawkins Antiques and Minister of Communications and the Arts [1995] AATA 194 in which the applicant told the Tribunal that the painting would be made available, at least for further scientific analysis, if required. The Tribunal said at [38]:

    …It would involve sacrificing all long term considerations for the possibility of immediate short term benefits if Mr Hawkins’ argument on this matter were to prevail. And clearly this legislation is concerned with long term issues. The moment a heritage object leaves this country, then its value is potentially lost to Australians for all time. There is no way of requiring its return. On the other hand, so long as an object remains within this country, then it remains potentially available for public and heritage purposes even if it is not immediately realising its potential. This is precisely the purpose for which the legislation was enacted: in order to ensure that the potential value of the object is not lost to this country. …

    Conclusion

36. For these reasons, we are satisfied that, by reason of its combined historic and artistic value, the painting Snack Bar is of such importance to Australia, that its loss would significantly diminish the cultural heritage of Australia.

37. We affirm the decision under review.  

I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Senior Member J F Toohey

..........................[sgd]..............................................

Associate

Dated 15 August 2016

Date of hearing	12 May 2016
Date final submissions received	7 June 2016
Counsel for the Applicant	Mr R Lancaster SC
Solicitors for the Applicant	Simpsons Solicitors
Solicitors for the Respondent	Department, Communications and the Arts – Legal Branch