Hawkins and Minister for the Arts and Centenary of Federation - [2001] AATA 304

DECISION AND REASONS FOR DECISION [2001] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/182

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOHN BERNARD HAWKINS
  Applicant
           And    MINISTER FOR THE ARTS AND THE CENTENARY OF FEDERATION
  Respondent

DECISION

Tribunal Deputy President B.H. Burns Air Marshal I.B. Gration, Member

Date11 April 2001
PlaceCanberra

Decision      The decision of the Tribunal is that the decision under review is affirmed.
  ........………..(Signed)..................….
  DEPUTY PRESIDENT B.H. BURNS
CATCHWORDS
CULTURAL HERITAGE – export permit – objects of scientific or technological interest – astronomical regulator - whether export would significantly diminish cultural heritage of Australia – decision affirmed.
Protection of Movable Cultural Heritage Act 1986 ss7, 9 and 10
Protection of Movable Cultural Heritage Regulations 1987 – reg 2 and Schedule 1 Pt 4
Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275
Re Hawkins and Minister for Communications and the Arts (1995) 38 ALD 323

REASONS FOR DECISION

11 April 2001 Deputy President B.H. Burns Air Marshal I.B. Gration, Member

This is an application by John Bernard Hawkins ("the applicant") for review of a decision of the Minister for the Arts and the Centenary of Federation ("the respondent"), made on 28 January 2000, not to grant an export permit for Frodsham Regulator number 1062 ("Regulator 1062") (T1/4-5). The subject regulator is a long case astronomical regulator clock which was first installed at the Melbourne Observatory in 1865. The application for the export permit was originally made on 16 December 1997 (T3) under the Protection of Movable Cultural Heritage Act 1986 ("the Act") s10(1), and re-submitted on 5 May 1999 (T5).
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with the T documents numbered T7 and T8 from an earlier discontinued hearing (N98/1830), and the exhibits tendered by the parties. The applicant tendered 5 exhibits, including a book written by himself (Exhibit A3) and the respondent tendered 2 exhibits, including a statement of facts and contentions. The Tribunal also had before it the respondent's written submissions. In addition, the Tribunal heard oral evidence from the applicant, and Professor R.W. Home, Dr N.R. Lomb, Dr J. Biggs and Mr K. Wohlers.
The applicant appeared before the Tribunal in person and the respondent was represented by Mr D. Smith of counsel.
On 2 December 1997, Regulator 1062 was sold for $18,000 as one of a group of four regulators from the Mount Stromlo Observatory at Lawson's Auction Rooms, Sydney. It was purchased by J B Hawkins Antiques, the applicant's antique business (T17/70). The circumstances of the sale of the regulator were complex (see Transcript, p85), but eventually Mr Hawkins sold Regulator 1062 to Mr Wee Ee Lim, of Singapore. Mr Hawkins is acting on Mr Lim's behalf in these proceedings (Exhibit A2).
background
The Tribunal makes the following findings of fact which were not in dispute between the parties:

a)By facsimile dated 16 December 1997, the applicant submitted an application to the Department of Communications and the Arts for an export permit for Regulator 1062 (T3) in accordance with s10(1) of the Act.
b)By letter dated 4 August 1998 the respondent, in accordance with s10(7) of the Act, notified its refusal to grant an export permit for Regulator 1062 (T4/23).
c)Mr Hawkins applied to this Tribunal for review of the decision on 14 December 1998 (T4/19-20), but subsequently withdrew the application on 22 April 1999 (T6).
d)On 5 May 1999, Mr Hawkins applied for an export permit for Regulator 1062 for a second time (T5/25-30). In accordance with s10(4) of the Act, three expert examiners' reports were obtained, all of which recommended against the granting of an export permit (T11, T12 and T13).
e)By facsimile dated 24 September 1999, the Department of Communications, Information Technology and the Arts invited the applicant to comment on the three Expert Examiner assessments (T16). On 15 October 1999, Mr Hawkins provided a written statement rebutting the opinions expressed in the three Expert Examiner assessments (T17/69-84).
f)On 20 December 1999, in accordance with s10(4) of the Act, the National Cultural Heritage Committee considered the matter and unanimously recommended to the respondent that an export permit should not be granted to the applicant for Regulator 1062 (T18/87) and on 20 January 2000, the respondent was provided with a brief on the matter (T18/85-103).
g)On 28 January 2000, in accordance with s10(5)(b) and s10(6) of the Act, the respondent decided not to grant an export permit in relation to Regulator 1062 (T18/88-89). The respondent found that Regulator 1062 was covered by Part 4 of the Control List of the Protection of Movable Cultural Heritage Regulations 1987 ("the Regulations"), and that Regulator 1062 was of such cultural importance to Australia that its loss by permanent export would significantly diminish Australia's cultural heritage.
h)On 18 February 2000, the applicant wrote to the Tribunal again requesting a review of the decision of the respondent (T1/3).

the evidence
professor r.w. home

Professor Home informed the Tribunal that he was a Professor of History and Philosophy of Science at the University of Melbourne and that he had prepared an expert examiner's report on Regulator 1062.
Professor Home explained to the Tribunal that Regulator 1062 was a scientific instrument, an astronomical regulator, "not any old regulator" (Transcript, p30). Professor Home testified that he regarded Regulator 1062 as culturally significant because of the central role it played in the scientific work carried out at the Melbourne Observatory in the 19th century. The Melbourne Observatory was the premier scientific institution in Australia in the 19th century and one of its major pieces of scientific research was to prepare the first satisfactory stellar map of the Southern Hemisphere sky.
Professor Home explained that the Melbourne Observatory produced an excellent catalogue with many more stars and much more accurate positions than earlier attempts had achieved. It became definitive for a number of years and was immediately recognised by the international astronomical community. Producing the catalogue with such precision represented a quantum leap forward in the technical capability of the Australian scientific community and crucial to the precision of that work was the regulator, Regulator 1062.
Professor Home told the Tribunal that the star mapping project began soon after Regulator 1062 arrived in 1865. Linked with a new telescope, the two instruments ran in concert on the star mapping project for about 10 years. Professor Home gave evidence that the annual reports of the director of Melbourne Observatory, Mr Robert Ellery, reveal that Regulator 1062 drove the chronograph that was the recording instrument for the mapping survey. A second Frodsham Regulator, number 998, which was of the same standard as Regulator 1062, was used for other work in the observatory, and the two regulators were also used to provide controls over the other regulators in the observatory, for example, the regulator designated to supply the time for the national time service.
Professor Home told the Tribunal that there were no other observatories in Australia involved in this particular star-mapping project. In the 1890's, the French National Observatory promoted a more accurate universal photographic star mapping project called the "Carte de Ciel" map of the sky. However, the Melbourne Observatory map was the prime Southern Hemisphere star map for 60 or 70 years.
Cross-examination of Professor Home focused upon the contention that Regulator 1062 was not the sidereal regulator that played the major role in the star mapping project. The presence of electrical contacts on Regulator 1062 was put forward as evidence of its usage as a mean time regulator rather than a sidereal regulator, by reference to a report by Mr Christopher Wood (Exhibit A1). In reply, Professor Home put forward an annual report by Mr Ellery, director of the Melbourne Observatory, where Mr Ellery stated: "The clock 1062 called the new sidereal regulator is used almost solely in connection with the zone observations, that is the stellar mapping project, and it is connected directly with the chronographs in the east transit room." (Transcript p 38) Professor Home went on to explain that it was his belief that the electrical contacts on Regulator 1062 were used to connect the chronograph to it in order to keep it rotating at a uniform rate.
During cross-examination, it was also put to Professor Home that Frodsham regulators were not uncommon in Australia and were produced for both observatories and for shops for the purpose of watch regulation. It was put to Professor Home that Regulator 1062 was the only regulator in a most superb veneered case, implying that it was probably initially in its life designed as a shop regulator rather than an astronomical regulator. The initial positioning of Regulator 1062 in the library of Melbourne Observatory was put to Professor Home as confirming that it was not used as a sidereal regulator. Professor Home told the Tribunal in reply that in his opinion, it was absolutely clear that the regulator was built as an astronomical regulator because of its accuracy, and it was placed initially in the library because Mr Ellery did not have enough space to set up his zone observation program. Professor Home referred once again to the 1866 report by Mr Ellery, which stated in relation to Regulator 1062: "This regulator is the one employed in the zone work and stands in the library". (Transcript p42)
dr n.r. lomb
Dr Lomb informed the Tribunal that he has been working since 1979 as Curator of Astronomy and Time Keeping at Sydney Observatory, now a part of the Powerhouse Museum and has a PhD in Astronomy from the University of Sydney. Dr Lomb indicated that he had provided an expert examiner's report in respect of Regulator 1062 (T11/41-45).
Dr Lomb explained to the Tribunal that the cultural significance of Regulator 1062 was found in its long and well-documented historical connection to the Melbourne Observatory. Dr Lomb indicated that there is one regulator, Frodsham Regulator number 998, mentioned extensively in the Melbourne Observatory's records, which would be of similar or perhaps of more significance than Regulator 1062 because it was purchased before Regulator 1062. However, the location of Frodsham Regulator number 998 is presently unknown, so that at the moment, all that is left is one regulator, Regulator 1062, with such a long historical association with the Observatory.
Dr Lomb told the Tribunal that the Powerhouse Museum does have a "fairly good collection" (Transcript p58) of astronomical regulators, including a Frodsham regulator 987, as well as the Hardy regulator and the two pendulum Breguet regulator, both originally imported into Australia by Sir Thomas Brisbane for the first Australian observatory at Parramatta and considered to be two of the most important astronomical regulators surviving within an observatory complex anywhere in the world. It was then put to Dr Lomb that an identical Breguet regulator was in existence in England and was highly decorative, unlike the Breguet regulator purchased by Sydney Observatory. Dr Lomb stated in reply that if there is a regulator that is used for astronomical purposes, then it is an astronomical regulator, whatever the quality of the case it is in.
Dr Lomb testified that all of these regulators would have similar cultural significance to Frodsham Regulators 998 and 1062, especially Regulator 987, because of its long history associated with Sydney Observatory. In Dr Lomb's opinion, the Melbourne and Sydney Observatories were the two main observatories in Australia during the 19th century, and both of these observatories had contributed a great deal to putting Australia onto an international scientific map. Having regulators associated with each observatory was therefore important.
Dr Lomb gave evidence that Sydney Observatory was involved from 1890 in the "Carte de Ciel" international astrography catalogue project and Frodsham Regulator 987 was used by Sydney Observatory as part of that work. However, only Melbourne Observatory was involved in the pre-1890 Southern Hemisphere star-mapping project.
Dr Lomb testified that his understanding was that Regulator 1062 was a sidereal telescope that was adjusted to keep time by the stars. It was used for the transit telescope, and it had an essential role in the work of Melbourne Observatory in compiling the southern star catalogue.
During cross-examination, Dr Lomb was asked why Sydney Observatory did not purchase at an antique dealers' fair a former Sydney Observatory Frodsham Regulator used in the "Carte de Ciel" star mapping project, if Frodsham Regulators, including 1062, are so important. In reply, Dr Lomb told the Tribunal that at that time, Sydney Observatory already held a very high quality Frodsham Regulator, number 987, which was much better documented and was directly associated with the main site of the Sydney Observatory since its purchase in 1860.
dr james biggs
Dr James Biggs testified that he is the Government Astronomer for Western Australia, and the Director of Perth Observatory, where he has worked for just over 6 years. Dr Biggs indicated that he had provided an expert examiner's report on Regulator 1062 (T12/47-51).
Dr Biggs testified that the cultural significance of Regulator 1062 was that it was one of several regulators used at the Melbourne Observatory and was physically used in observations conducted during the 19th century. However, Dr Biggs was not sure with which events or research the regulator was physically associated.
During cross-examination, Dr Biggs informed the Tribunal that the Perth Observatory still has, on public display, its 19th century sidereal and mean-time regulators which were used in the making of the French "Carte de Ciel" photographic catalogue of the stars of the southern hemisphere in the early 20th century. The regulators used were "Kullberg clocks".(Transcript p74)
mr j.b. hawkins
The applicant first outlined to the Tribunal the history of his career, stating that his father had formed one of the finest collections of clocks in England and that he had inherited this collection when his father died. Mr Hawkins gave evidence that he had a long interest in horology and clocks and, after emigrating from England to Australia in 1967, he used his father's collection as the basis of the stock for the business he opened in Sydney, a business which is still in existence after 32 years. Mr Hawkins told the Tribunal that in 1975 he published a book called "Thomas Cole & Victorian Clockmaking" (Exhibit A3), which contained specific references to Frodsham's work.
During his evidence in chief, the applicant told the Tribunal that he has had dealings with the Moveable Cultural Heritage Department in the past and was concerned about the extent to which the department was inconsistent in its decisions to allow or not allow the export of certain objects. Mr Hawkins was also concerned about the inaction on the part of the Movable Cultural Heritage Committee in relation to the purchase of Regulator 1062 and the lapse of three years since he purchased Regulator 1062. He also expressed concern that another Frodsham regulator had been sold and exported without any apparent concern for Australia's cultural heritage (T8/ N98/1830).
The applicant told the Tribunal that Regulator 1062 is "a clock amongst many" (Transcript, p93) and identified several equivalent regulators. He first listed the three Frodsham Regulators of Melbourne – number 880, number 998 and number 1062. Of these, he explained that number 880 was in private hands, number 998's whereabouts was unknown, but it could possibly be the skeletonised example at Mount Stromlo in Victoria, and Regulator 1062 remains in Australia in private hands. Mr Hawkins also mentioned the two regulators of Sydney – number 987, which is still on display at Sydney Observatory and another regulator that was sold and exported in 1997. Mr Hawkins then mentioned a regulator from Adelaide, number 991, which is also at Mount Stromlo. In addition, he included as equivalent regulators the Breguet and Hardy regulators of the Sydney Observatory and the two Kullberg clocks of the Perth Observatory.
The applicant told the Tribunal that he believed the cultural significance of Regulator 1062 had been exaggerated, both in its role within the Melbourne Observatory and the relative importance of the Melbourne star catalogue, compared with the earlier Parramatta catalogues and the later French "Carte de Ciel" project.
The applicant stated that Regulator 1062 has had a "somewhat chequered career" (Transcript, p96) and it was not clear what role it played in relation to the star mapping project – whether it was the sidereal regulator used to assist in mapping the stars, or whether it was merely a mean time clock, placed in the library of Melbourne Observatory for, amongst other things, decorative purposes. In his evidence, Mr Hawkins put forward the view that Frodsham Regulators 1062 and 998 from Melbourne Observatory and Frodsham Regulator 987 from Sydney Observatory were of identical technical quality, the only variation being that Regulator 1062 has a beautifully veneered case, whereas the other two regulators do not. He said that he believed Mr Ellery preferred Frodsham Regulator 998 and used it as his primary sidereal regulator, and it was his belief that Frodsham Regulator number 998 was the regulator with the skeletonised dial currently at Mount Stromlo.
Mr Hawkins stated that in assessing the cultural significance of Regulator 1062 and whether there are regulators of equivalent quality in public collections, it is necessary to examine the place of the Melbourne Observatory project within the larger context of viewing the stars in the Southern Hemisphere from Australian soil during the 19th–20th century. From this perspective, Sir Thomas Brisbane's earliest work at Parramatta pioneered the process of attempting to catalogue the Southern Hemisphere sky and its place in Australian scientific history has been underestimated. The Melbourne Observatory's star-mapping project certainly improved on this earliest catalogue but historically, Brisbane's work was more important. In addition, the French "Carte de Ciel" photographic project, involving 22 observatories all working together, contributed sixty years to its star-mapping process. From this perspective, Regulator 1062 played only a role of equal significance as other regulators used throughout the 19th–20th star-mapping period, several of which are currently in public collections within Australia.
mr kevin wohlers
The respondent called Mr Wohlers to testify as to the alleged inaction on the part of the Movable Cultural Heritage Authorities Committee in relation to the possible purchase of Regulator 1062. Mr Wohlers informed the Tribunal that he is the Secretary of the National Cultural Heritage Committee. His responsibilities as Secretary are for the administration of the Protection of Movable Cultural Heritage Act 1986, provision of Secretariat services to the Committee and provision of policy advice to the respondent.
Mr Wohlers told the Tribunal that whilst the legislation when first enacted made provision for a fund to facilitate the purchase of Australian protected objects, the fund was not provided with any moneys until the 1999/2000 financial year, when half a million dollars was provided to facilitate the purchase of objects to place them in public collections. In the course of that financial year, procedures to gain access to the account were being developed, and during this time, Regulator 1062 was offered for sale.

In addition, Mr Wohlers said that he was attempting to ascertain from certain purchasers in Melbourne with an interest in acquiring Regulator 1062 just how much money they could put together to assist in its purchase. That took considerable time, but the advice eventually received was that the consortium was able to collect some $17,000.
At that time, Mr Wohlers was trying also to ascertain a fair market value for Regulator 1062. At public auction, Regulator 1062 was sold for $17,000 or $18,000 and the price being asked was £35,000. There were no evidentiary materials on which to base a determination as to whether that was a fair market price. A number of institutions had been approached in efforts to obtain an assessment, but Mr Wohlers eventually decided to hear directly from the applicant as to how much was paid for the regulator at its last sale. Mr Wohlers testified that it was only on the day of the Tribunal hearing that he finally became aware of the price previously paid and was in a position to advise the Minister as to the reasonableness or otherwise of the price that was being asked. Mr Wohlers also did not know up until the time of the Tribunal hearing who actually owned Regulator 1062.
Mr Wohlers told the Tribunal that the Minister's decision not to grant a permit to export Regulator 1062 was on the basis of its significance. Mr Wohlers told the Tribunal that from the Department's perspective, quality means not just the physical appearance of the object but also its significance to the nation. In his view, there is only one Regulator 1062, and even if one tended to be a little clouded as to whether it was Regulator 1062 or 998 which carried out the stellar mapping work, the fact remains that Regulator 1062 appears to be the only regulator left that was involved with that particular project at that particular point in time. The whereabouts of Regulator 998 is unknown, and even if it is the skeletonised regulator at Mount Stromlo, it has been disfigured and there are no markings left on it to determine whether or not it is Regulator 998.
issues which are not in dispute
The issues which are not in dispute between the parties are first, that the object, Regulator 1062, was not of Australian origin but was in use in Australia at least 30 years ago, and therefore satisfies paragraph 4.3(b)(iii) of Schedule 1 of the Regulations, unless "substantially modified"; second, that the object is a device used for scientific measurement and is thus covered by subparagraph 4.4(f)(i) of Schedule 1 of the Regulations and the object therefore satisfies paragraph 4.3(c) of Schedule 1 of the Regulations; and third that the object satisfies paragraph 4.3(a) of Schedule 1 of the Regulations, that the object is of "significance to Australia" within the meaning of subregulation 2(1).
issues in dispute
The issues in dispute between the parties were first, whether the object, in accordance with subregulation 2(2), has in the last 30 years, been "repaired, restored or reassembled" and in that process has been "substantially modified" and thus whether the object was "in use" in Australia at least 30 years ago (paragraph 4.3(b) of Schedule 1); second, whether the object "is represented in at least 2 public collections by an object of equivalent quality" (paragraph 4.3(d) of Schedule 1); and third, whether the object is of such importance to Australia, or a part of Australia, that its loss to Australia would significantly diminish the cultural heritage of Australia (section 10(6)(b) of the Act).
submissions of the parties
submissions of the applicant
The applicant during the giving of his evidence and in cross-examining the various witnesses made the following submissions.
In consideration of the legislation and regulations, Mr Hawkins disputed that Item 4.3(d) of Schedule 1 of the Regulations was satisfied, namely, that the object is not represented in at least 2 public collections in Australia by an object of equivalent quality. The applicant submitted that the object was represented in at least two public collections in Australia by an object of equivalent quality. The applicant also submitted that Regulator 1062 was not of such importance to Australia, or a part of Australia, that its loss to Australia would significantly diminish the cultural heritage of Australia (section 10(6)(b) of the Act).
The applicant submitted that the expert examiners who provided reports on Regulator 1062 were not independent in that they had a vested interest in trying to ensure that this particular instrument returned to the Melbourne Observatory. The applicant was also concerned that the expert examiners gave their written opinions without ever viewing the clock.
The applicant submitted that the key consideration as to whether or not the clock could or could not be exported was its historic role in Melbourne Observatory. Crucial to its historical importance was whether or not Regulator 1062 was the observatory's sidereal regulator, used for the star mapping project. The applicant submitted that there was a real problem in ascertaining which regulator did which job at the observatory and in his own handwriting, Mr Ellery, Director of the Melbourne Observatory, stated different things. The applicant contended that the fact that Regulator 1062 was fitted with electrical contacts suggested that the clock was bought and used as a mean time clock and not as a sidereal clock. The applicant further submitted that the fact that Regulator 1062 had a veneered case and stood in a library tended to further suggest that the clock was bought as a decorative addition and not as a vital and integral part of the instruments at the Melbourne Observatory. The applicant submitted that it was his belief that Frodsham Regulator 998 was Ellery's favourite clock and was the most accurate and the one that he would use in the star mapping project.
The applicant submitted that in the 19th century, regulators were not uncommon in Australian observatories and there were lots of competitors to Frodsham, whose clocks were equally as good. The applicant also submitted that in the 19th century, Adelaide Observatory had a Frodsham sidereal clock and a mean time clock, Perth Observatory had a Frodsham sidereal clock, Sydney had three sidereal clocks, two of which were made by Frodsham, and Melbourne had three Frodsham clocks. The applicant further submitted that a Frodsham astronomical clock from Sydney Observatory was sold some three years ago and exported from Australia without comment.
In relation to the contention that the object's loss to Australia would significantly diminish Australia's cultural heritage, the applicant submitted that there are lots of better candidates in terms of regulators that have the right to claim the distinction of being the instruments that have made a great contribution to science in Australia. The applicant submitted that there were three periods of significance in terms of the mapping of the southern skies and there are regulators in Australian public collections representing each of these periods. The applicant submitted that the first of these periods is the period in the early 19th century, when Sir Thomas Brisbane came to Australia and pioneered the first attempt to map the stars from Australian soil, for which he was awarded a gold medal. The regulators that he used at the Parramatta Observatory, the Breguet, and the Hardy, it was submitted, are still in existence at the Sydney Observatory as part of its public collection.
The applicant submitted that the second period, the star-mapping project at Melbourne Observatory during the 1860's, was less important historically than the first period. The applicant submitted that Sydney Observatory was also involved in this project but did not publish its results and its Frodsham Regulator, which did exactly the same job and exactly the same work, is still on display at Sydney Observatory. The applicant contended that it was not clear which regulator was doing which job in Melbourne Observatory, but one of the Melbourne regulators, Frodsham Regulator 998, is still in existence at Mount Stromlo, albeit with a skeletonised dial and no identification number. The applicant submitted that this regulator is an object of equivalent quality to Regulator 1062 and that Mount Stromlo is a public collection in the sense that it is publicly owned and any one can go and see the regulator. The applicant further submitted that Regulator 1062, Frodsham Regulator 998 and the Frodsham Regulator at the Sydney Observatory are uniform in their mechanics, engineering and machinery and the only difference between them is the cabinet in which they were placed.
The applicant submitted that the third period of significance was the French Photographic Catalogue of the Stars of the Southern Hemisphere, involving the observatories in Perth, Sydney and Melbourne. The applicant submitted that this project was more important historically than the Melbourne star mapping project because it was an international operation straddling two centuries and involving 22 observatories. The applicant submitted that the Perth Observatory still has the two Kullberg clocks used during this project as part of its public collection and Sydney Observatory still has the Frodsham regulator used in this same operation available for view by the public.
The applicant also submitted that at the time of purchase of Regulator 1062, he believed that he was purchasing a clock, rather than an important scientific instrument, and hence he did not contemplate that there would be a need for a request for an export licence.
submissions of the respondent
The respondent provided written submissions.
Mr Smith submitted on behalf of the respondent that the applicant did have standing to apply to the Tribunal under section 27(1) of the Administrative Appeals Tribunal Act as a person whose interests were affected by the decision, in that the applicant was applying on behalf of his client, the owner of Regulator 1062, Mr Wee Ee Lim.
Mr Smith submitted that Professor Home's opinions expressed no Melbourne bias, and his enthusiasm for Regulator 1062 was a result of his knowledge of the historical material. Mr Smith also referred to the detailed report and testimony of Dr Biggs, who is Director of the Perth Observatory, and outside any Sydney-Melbourne rivalry.
Mr Smith submitted that Regulator 1062 meets the definition of an object of "significance to Australia" in accordance with paragraph 4.3(a) of Schedule 1 of the Regulations. Mr Smith referred the Tribunal to the testimony and reports of the three expert examiners as evidence that the object has been used in Australia and is associated with persons, a place and an activity notable in history in accordance with the definition of "significance to Australia" found in paragraph 2(1)(a) of the Regulations.
Mr Smith submitted that Regulator 1062 has not been "substantially modified" in accordance with subregulation 2(2) so as to be treated as an object between 3 and 5 years old. Mr Smith referred the Tribunal to the reports of Dr Lomb (T11/41), Professor Home (T13/53) and Dr Biggs (T12/47) and submitted that the removal of electrical contacts from Regulator 1062 did not constitute repair, restoration or reassembly and that the electrical contacts, although original, were essentially an accessory to the regulator proper. It was submitted that the essential components of the object were the movement and case. Mr Smith submitted that therefore, Regulator 1062 satisfied the requirement of paragraph 4.3(b)(iii) of Schedule 1 of the Regulations of being "in use in Australia at least 30 years ago".
Mr Smith submitted that Regulator 1062 was not "represented in at least 2 public collections by an object of equivalent quality" in accordance with paragraph 4.3(d) of Schedule 1 of the Regulations. Mr Smith referred to definition 6 of "public" in the Macquarie Dictionary (2nd ed, 1991) and contended that a "public collection" for the purposes of the Control List means a government-owned or administered museum or gallery which is usually open to the public for the purposes of viewing the objects in the collection, as opposed to a private collection owned by a private individual or organisation which may or may not be open to the public.
Mr Smith further contended that the term "equivalent quality" meant the relative grade of excellence of the object compared to other objects in public collections in Australia. Mr Smith submitted that any judgment about the "quality" of an object for the purposes of the Control List must be based on a consideration of the degree to which it possesses each of the characteristics which go towards making the object an "Australian protected object". Mr Smith submitted that in the case of an object of applied science or technology, this required consideration of the extent to which an object has "significance to Australia" having regard to the matters listed in subregulation 2(1). Mr Smith submitted that the Explanatory Statement for Statutory Rules 367 of 1998, which introduced the new Control List, sets out a number of statements about "equivalent quality" for each Part of the Control List in which the expression occurs and that the statements suggest that "quality" is to be assessed from the point of view of a curator of similar objects for an Australian public collection.
Mr Smith submitted that the intention behind the provisions of the Control List was that the export of an object will not be prevented where there are at least two specimens of that kind of object kept in Australian public collections that are as good, or better, as museum specimens than the object, and the "quality" of an object must be evaluated having regard to the degree to which it is desirable as an acquisition to an Australian public collection. Mr Smith submitted that the relative physical condition is not the only consideration.
Mr Smith conceded that the Sydney Observatory, as part of the Powerhouse Museum is a "public collection" for the purposes of paragraph 4.3(d) of Schedule 1 of the Regulations; however, the two regulators present there used by Sir Thomas Brisbane represent an earlier phase of Australian astronomy than the significant work at Melbourne Observatory in the second half of the 19th century and are not of "equivalent quality" to Regulator 1062, within the meaning of paragraph 4.3(d) of Schedule 1 of the Regulations. Mr Smith contended that the fact that their commercial value may be higher was not the issue. Mr Smith submitted that the same reasoning applied to Flinders' Earnshaw regulator, mentioned by Dr Lomb.
Mr Smith contended that Mount Stromlo Observatory is a working astronomical observatory, and as part of the Australian National University, it is partly government-funded. However, it only provides limited access to the public and is not a museum, nor does it employ anyone to undertake museum curator duties. Mr Smith submitted therefore that the Frodsham regulator situated in the Director's office was not on public display or in any meaningful sense accessible to the public. Mr Smith further submitted that, if the Frodsham regulator at Mount Stromlo is Regulator 998, then the modifications carried out upon it, particularly the skeletonizing of the dial, mean that it is arguably not of "equivalent quality" to Regulator 1062.
Mr Smith submitted that Perth Observatory is a similar institution to Mount Stromlo in that it is primarily a research institution and does not contain a "public collection" within the meaning of paragraph 4.3(d) of Schedule 1 of the Regulations. Mr Smith further submitted that, if the two Kullberg regulators used at Perth Observatory in the "Carte de Ciel" project still remain there, those objects are not of "equivalent quality" to Regulator 1062 as they have no association with the historically significant earlier work of the Melbourne Observatory.
In relation to the requirement of importance of the object to Australia set out in subsection 10(6) of the Act, Mr Smith submitted that the decision-making process consists of two steps – first, an assessment of the importance of the object to Australia's cultural heritage and second, given that importance, an assessment of whether or not the permanent loss of the object would significantly diminish Australia's cultural heritage. Mr Smith referred the Tribunal to the cases of Re Hawkins and Minister for Communications and the Arts (1995) 38 ALD 323 and Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275 and submitted that the issue is the degree to which the cultural heritage of Australia would be diminished.
In relation to the history and significance of Regulator 1062, Mr Smith submitted that the precise details of the history of Regulator 1062 may never fully be known and the details of the location and use of Frodsham Regulators 1062 and 998 are somewhat unclear. Mr Smith submitted that Mr Hawkins and Professor Home did come to different conclusions on whether it was Regulator 1062 or Regulator 998 which was the transit clock used in the relevant star mapping project, but both conclusions were based upon Ellery's own writings.
Mr Smith also conceded that the place of the Melbourne Observatory in 19th century Australian astronomy is also somewhat open to interpretation, with Professor Home considering it to be the pre-eminent scientific institution in 19th century Australia and Dr Lomb considering it to be the equal of the Sydney Observatory.
Mr Smith submitted that the quality and significance of the work of Sir Thomas Brisbane at Parramatta in the 1820's is also in some dispute in that his observations were later found to be flawed, leading to a loss of overseas confidence in Australian astronomy; and it was the work of the Melbourne Observatory in the second half of the 19th century which restored this confidence. Mr Smith submitted that as the work of the Melbourne Observatory in mapping the southern stars was "world-class" and Melbourne Observatory was the only Australian observatory involved in that international cooperative research project, it is this work and the time-service functions performed by Melbourne Observatory which are the most significant. Mr Smith submitted that Frodsham Regulators 1062 and 998 were crucial to this work. Mr Smith submitted that the French "Carte de Ciel" project beginning in the 1890's was a photographic project in which mechanical regulators were much less important.
Mr Smith submitted that the significance of Regulator 1062 is increased by the fact that the location of Frodsham Regulator 998 is unknown and the transit telescope used at the Melbourne Observatory in the 1860's and 1870's mapping project is in the possession of Museum Victoria. Mr Smith submitted that if an export permit for Regulator 1062 was granted, the real opportunity for it to be returned to its original site as part of a public display at the reopened Melbourne Observatory would be lost. Mr Smith submitted that interest has been expressed by the Royal Botanic Gardens and Museum Victoria in purchasing Regulator 1062 for display in the reopened Old Melbourne Observatory in the Royal Botanic Gardens.
Mr Smith submitted that the Tribunal should find that, on the balance of probabilities, Regulator 1062 was used at the Melbourne Observatory in the second half of the 19th century and in the 20th century, and in particular was directly or indirectly used in both the significant star mapping project and in providing the standard time service for Victoria.
Mr Smith submitted that Australia's cultural heritage includes the history of colonial Australian science and that Regulator 1062 is a tangible link with, and representation of, some of the highest quality and best-regarded colonial Australian scientific work. Mr Smith submitted that the Tribunal should find that Regulator 1062 is of importance to Australia, and in particular to Victoria, for historical and scientific reasons; that it is of such importance that its loss to Australia would significantly diminish the cultural heritage of Australia; and that, accordingly, the decision under review should be affirmed.

Mr Smith further submitted that if the Tribunal decided to grant a permit with conditions, then the only condition appropriate would be that the object may not be exported until the expiration of a specified period, for example, 28 days after the Tribunal's decision, to allow for negotiations for the purchase of the object to proceed.
the tribunal's findings, reasons and decision
legislation
The object of the legislation relevant to this application for review is to protect, by way of export control, Australian heritage of movable cultural objects. The relevant sections of the Act are as follows:
Movable cultural heritage of Australia
"7(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:
          (a)       objects recovered from:
(i)        the soil or inland waters of Australia;
(ii)the coastal sea of Australia or the waters above the continental shelf of Australia; or
(iii)the seabed or subsoil beneath the sea or waters referred to in subparagraph (ii);
(b)objects relating to members of the Aboriginal race of Australia and descendants of the indigenous inhabitants of the Torres Strait Islands;
(c)objects of ethnographic art or ethnography;
(d)military objects;
(e)objects of decorative art;
(f)objects of fine art;
(g)objects of scientific or technological interest;
(h)books, records, documents or photographs, graphic, film or television material or sound recordings;
(j)any other prescribed categories.
(2)The generality of paragraph (1)(j) is not limited by any of the other paragraphs of subsection (1)

.
National Cultural Heritage Control List

8.(1) Subject to subsection (2), the regulations shall prescribe a list, to be known as the National Cultural Heritage Control List, of categories of objects that constitute the movable cultural heritage of Australia and are to be subject to export control.
(2)The Control List shall divide such objects into 2 classes, namely:
(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.

(3)Subsection (2) does not prevent the division of Class A objects and Class B objects into sub-classes and other divisions or categories.
(4)Nothing in this section shall be taken to limit the application of subsection 33(3A) of the Acts Interpretation Act 1901.

……
Grant of permits in respect of particular objects
10.(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".

The regulations referred to in s8 of the Act are the Protection of Movable Cultural Heritage Regulations 1987 ("the regulations"). For the purposes of s.8(1) of the Act the list of categories of objects that constitute the movable cultural heritage of Australia subject to export control is that set out in Schedule 1 of the regulations. Part 4 of Schedule 1 lists heritage objects of applied science or technology. Objects in this category relate to human enterprise and activity, other than artistic activity, such as machines (reg 4.2). There can be no dispute that Regulator 1062 falls to be described as a machine and the Tribunal so finds. Regulation 4.3 lays down the conditions which must be fulfilled before an object can be said to be in the above category.
"4.3    An object is in this category if:
(a)it is of significance to Australia; and
(b)for an object:
(i)of Australian origin – it was made in Australia at least 30 years ago; or
(ii)that has substantial Australian content – the Australian content was made in Australia at least 30 years ago; or
(iii)that is not of Australian origin – it was in use in Australia at least 30 years ago; and
(c)it is an object of the kind mentioned in item 4.4; and
(d)it is not represented in at least 2 public collections in Australia by an object of equivalent quality;
…
Regulation 4.4(f) provides
"(f)      any object of scientific interest, including:
(i)        an implement, tool or device used, or intended for use, for scientific examination or measurement; and
(ii)apparatus assembled or constructed for purposes of scientific research; and
(iii)a model of original scientific apparatus or of an original scientific instrument; and
(iv)any other thing related to the field of science; and
…."
The Tribunal now turns to a consideration of the requirements contained in regulation 4.3. The first of these is the requirement that Regulator 1062 be of "significance to Australia". This expression is defined in regulation 2 as follows:
"2        Interpretation
          (1)…….
significance to Australia, for an object, means the object is of Australian origin, has substantial Australian content, or has been used in Australia, and:
(a)       is associated with a person, activity, event, place or business enterprise, notable in history; or
(b)       has received a national or international award or has a significant association with an international event; or
(c)       represents significant technological or social progress for its time; or
(d)       is an object of scientific or archaeological interest.
…"
That Regulator 1062 has been used in Australia there can be no doubt. In this respect, the Tribunal accepts the evidence of the three expert examiners which tends to support that fact and so finds. Additionally, the Tribunal would indicate that it has accepted the evidence of the three expert examiners (all of whom gave oral evidence in addition to the reports they prepared for the respondent) which might be said to be relevant to the question of Regulator 1062's significance to Australia in terms of paragraphs (a) to (d) of the above definition. All were impressive witnesses and the Tribunal is satisfied from their evidence that the subject regulator is associated with an event or activity notable in history, namely, the creation of the first satisfactory stellar map of the Southern Hemisphere sky. This map was the prime Southern Hemisphere star map in the world for a period of 60 or 70 years. And so the Tribunal is satisfied that the requirement of reg 4.3(a) has been met.
Turning next to reg 4.3(b), it is clear from the evidence of the three expert examiners that the subject regulator is not of Australian origin. The Tribunal is also of the view that the regulator in question was in use in Australia at least 30 years ago, namely, shortly after its arrival in Australia in 1865. In this regard the Tribunal has accepted the evidence of the three expert examiners which tends to support such a finding but particularly the evidence of Professor Home whom the Tribunal found to be most thorough and objective in the giving of his testimony. The Tribunal is also not satisfied that the subject regulator has been repaired, restored or reassembled, and, accordingly, reg 2(2) is not relevant.
The next requirement which needs to be satisfied is as to whether the subject regulator is a Class B object for the purposes of the Act. Regulation 4.4 is relevant in this regard. It is clear from the evidence led by the respondent that the regulator is a device used for scientific measurement and accordingly falls within the confines of reg 4.4(b)(i), and the Tribunal so finds. The last requirement of reg 4.2 for an object such as the subject regulator to be a heritage object for the purposes of the Act is that "it is not represented in at least 2 public collections in Australia by an object of equivalent quality" (reg 4.3(d)).
The Tribunal now turns firstly to a consideration as to what is meant by the use of the expression "equivalent quality" which is the characteristic which the object is required to have pursuant to reg 4.3(d). It goes without saying that the above words must be considered in their context having regard to the purpose of the relevant legislation. The legislation is concerned with objects that are of importance to Australia, and relevantly in this case, that are of importance for historical and/or scientific reasons (s7 of the Act). The Tribunal's considered view, having regard to the context of the subject words in reg 4.3(d), of the subject object not being represented in at least two public collections in Australia, is that if there are two or more such objects apart from the subject object, then there would be no restriction on the movability of the subject object outside the confines of Australia. In other words, the cultural heritage of the nation would not be diminished significantly by the absence from Australia of the object in question because there would be available to the public at large two other objects. However, they must be of "equivalent quality". The Tribunal is of the view that these words must be given their ordinary meaning but in an Australian cultural heritage setting, and more particularly so in relation to human enterprise and activity regarding objects of scientific interest used for scientific examination or measurement. (s7(1) of the Act and regulations 4.2 and 4.4) The evidence of Professor Home is significant in the above regard.
The Tribunal found Professor Home to be a most impressive and expert witness. The Tribunal has no hesitation in accepting his evidence which included the following (at pp 30, 31 of transcript).
"Science has been an important part of the cultural history of this country since the very beginning. Europeans first came to Australia on a scientific expedition in 1770. Unfortunately the significance of science to the history of the national culture is not always appreciated, if I might say so, a remark of Mr Hawkins' a few moments ago exemplifies that when he clearly rates a piece of furniture more highly than a piece of scientific equipment from a heritage point of view. I would challenge that. Science has, as I say, been a very significant part of Australia's cultural heritage since the beginning. The astronomical regulator that we are talking about here is a scientific instrument. It is not any old regulator. It is an astronomical regulator [which is] highly [accurate]– a very very precise piece of instrumentation [which] I regard as significant because of the central role it played in a particular piece of scientific work, a long term piece of scientific work carried out at the Melbourne observatory in the 19th Century. In the second half of the 19th Century the Melbourne Observatory was the premier scientific institution in Australia. Its major – one of its two major pieces of scientific research was to prepare the first really good stellar map of the southern hemisphere sky. You will appreciate that the stars that we see from here in the southern hemisphere can't be seen by observers in the northern hemisphere and so [for much of] the long history of scientific astronomy there were no maps of the southern sky simply because people couldn't see it. People had to come to the southern hemisphere in order to do that map. There had been a couple of earlier attempts to map the southern sky, a famous attempt at the so called Parramatta Observatory founded by Governor Brisbane in the 1820s produced a catalogue published in the mid 1830s but it was a very unsatisfactory catalogue indeed and was immediately recognised to be such at the time. They had terrible instrument problems that they didn't perceive in doing the mapping but were perceived by the astronomers in the northern hemisphere when they saw the catalogue. A temporary observatory was placed at Cape Town in the 1830s also. Sir John Herschel operated that for a few years visiting from England and it was because he had done that observing that he recognised the inadequacies in the Parramatta catalogue.
…
But until the Melbourne Observatory began its mapping program in the late 1860s those were the only substantial attempts to map the southern sky. The Melbourne Observatory produced an excellent catalogue with many more stars and much more accurate positions than the earlier attempts had achieved. It became definitive for a number of years. The excellence of the Melbourne catalogue was immediately recognised by the international astronomical community. So producing that catalogue … - in my view – represented a quantum leap forward in the technical capability of the Australian scientific community. The precision of the work was … [a] quantum leap ahead of anything that had been done previously. And crucial to the precision of that work was the regulator that was used in making the observations. And basically to determine the … longitude of a star you have to know precisely the time at which it crosses the meridian directly above your head. To do that accurately you need a good regulator. And the regulator – the regulator that we're talking about here was that regulator. So this particular instrument was absolutely central to one of the most important scientific research programs carried out in this country in the 19th Century. That's in my view the basis of its cultural significance. And that's why it's this particular regulator that is important. It seems to me irrelevant that there may be other Frodsham regulators whether of the same quality as regulators or not in other public collections. This regulator is, for the reasons I've described, unique because of its historical role in this major piece of scientific research."

The importance of the abovementioned scientific work is further supported in the evidence of Dr Biggs where, at page 70 of the transcript, he referred to the above work in the following terms
"… round about 1875, it was quoted by the Astronomer Royal, Sir George Airy from the Royal Greenwich Observatory and he said, it's quoted here, 'The Melbourne Observatory has produced the best catalogue of stars in the Southern Hemisphere ever produced'."

A great deal of the other evidence led by the respondent supports the above and is accepted by the Tribunal. Other evidence which might be said to be at variance is rejected. This latter evidence included evidence given by the applicant. The Tribunal formed the distinct impression that the applicant's evidence suffered from a lack of objectivity, perhaps understandably so, bearing in mind his interest in obtaining the necessary permit.
The Tribunal's considered view is that Frodsham Regulator 1062 played a key role, ie for many years it drove the newly designed chronograph developed by the Melbourne Observatory's director during the development of the best catalogue of stars in the Southern Hemisphere ever produced (as at 1875).
It is also clear from the evidence of Professor Home that another Frodsham Regulator, 998, played a role in the above project in so far as it and Regulator 1062, between them by means of electrical connections, controlled all of the Observatory's recording instruments. Both played a role, with the Regulator 1062 playing the more significant role. These two regulators, on the evidence before the Tribunal, and particularly that of Professor Home, were the only ones which played essential and significant roles in the abovementioned scientific project.
The preponderance of evidence before the Tribunal clearly indicates that the above catalogue of stars of the Southern Hemisphere was at the time the best ever produced and recognized to be so by the international scientific community. It follows, as no other regulators were significantly involved in the above project, that there are no other objects of equivalent quality. They alone distinguish themselves by virtue of the respective and significant roles played in the first major international research project in which an Australian scientific institution had played a leading part and which created, as at 1875, the best catalogue of stars in the Southern Hemisphere ever produced. Reference was made from time to time in the evidence to other regulators associated with other projects. Even if it can be said that other regulators (of equivalent accuracy) were utilized for other projects of equivalent significance (which is not so on the evidence accepted by the Tribunal) they would still not fall to be described for reg 4.3(d) purposes as being "of equivalent quality" for the simple reason that none of them played a significant or any role with respect to the abovementioned scientific project. They are not of equivalent quality in that sense and the Tribunal so finds.
The whereabouts of Regulator 998 is unknown, leaving the only other regulator, namely Regulator 1062, (the subject of these proceedings) which is in the possession of the applicant and not in a public collection. It goes without saying that for the purposes of reg 4.3(d) the latter is not represented in at least two public collections in Australia by an object of equivalent quality and the Tribunal so finds.
From the above the Tribunal finds that Regulator 1062 is, for the purposes of sections 7 and 8 of the Act,
1. an object of scientific interest (s7(1)(g)).
2.an object of importance to Australia for historical and/or scientific reasons (s7(1)).
3.a Class B object (s8).
The Tribunal now turns to s10(5) of the Act which provides the respondent with the power to grant, or not, a permit to export the subject Class B object. If the power were to be exercised in favour of granting such a permit then the Minister has a discretion to specify conditions attaching to that grant of permit. There are a number of prerequisites which need to be complied with before the power in s10(5) is exercised and these are contained in s10(1),(2),(3) and (4). These have all been met by the Minister, Committee and the three expert examiners Professor Home and Drs Lomb and Biggs.
It is clear from the wording of s10(6)(a) that the Minister (and this Tribunal on review) is obliged to have regard to the historical and/or scientific reasons as to why Regulator 1062 is of importance to Australia (s7(1)). It is further clear from s10(6)(b) that if the Minister (and this Tribunal on review) is satisfied that Regulator 1062 is of such importance to Australia for the above reasons, that its loss to Australia would significantly diminish the cultural heritage of Australia, then the Minister (and this Tribunal on review) is precluded from granting a permit to export the regulator permanently.

The Tribunal now turns to a consideration of whether, pursuant to s7(1) of the Act, it can be said that Regulator 1062 is an object of scientific interest. Clearly this is so, bearing in mind the oral evidence of the expert examiners and their reports which further establish (particularly the evidence and report of Professor Home) that the regulator in question is of importance to Australia for historical and scientific reasons. The above evidence clearly establishes that the regulator is of significance to Australia (reg 2(1)).
The reasons which the Tribunal has had regard to pursuant to s10(6)(a) are those given by Professor Home, supported as they were by the evidence of the other two expert examiners. It has also had regard to the views and material put forward by the applicant but has preferred the former.
The Tribunal now turns to consider s10(6)(b). In this regard the Tribunal would indicate that it is in agreement with the Tribunal's views in Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275 that the words "the cultural heritage of Australia" are to be given their ordinary wide meaning. (see para 112 of Truswell) namely
"Cultural heritage is that which is inherited by a society or group about its customs, achievements, products and outlook, its artistic and intellectual development and its forms, stages and types of intellectual development or civilization. It follows that cultural heritage includes not only tangible property such as objects or land but also the intangible such as customs, outlook, religion, folk-lore, music or history."

As to the meaning to be given to the word "significantly" in s10(6), the Tribunal is of the view that the word means what it says within its context, namely, that if Regulator 1062 were to be lost to Australia then the lessening or reduction of the cultural heritage of Australia must be of importance or consequence. This accords with the Macquarie Dictionary definition of "significant", namely, "important; of consequence;" and is consistent with the view of the Tribunal in Truswell that it meant "importantly or notably". (para 123)

In the opinion of the Tribunal there can be no doubt that were Regulator 1062 allowed to leave this country, then potentially it is lost to Australia forever. In this regard the Tribunal is completely in accord with the views expressed by the Tribunal in Re Hawkins and Minister for Communications and the Arts (1995) 38 ALD 323 at paras 38 and 39.
"38 Clearly any private owner of a valuable object such as View of the Town of Sydney is entitled to do with it as he or she pleases, subject to the prevailing legislation. This is one reason why a painting such as this should ideally be in public rather than private ownership. 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 such 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. It would entirely undermine the object of the legislative scheme and would enable individuals to manipulate the legislation to their own advantage if issues such as short term availability were allowed to prevail.
39. Accordingly, whilst the immediate or short term disposition of an object might sometimes be relevant to the issues raised under s10(6), particularly if the object is being allowed to deteriorate, these considerations should rarely, if ever, prevail over matters relating to the long term potential of a significant heritage object."

Similar views were expressed by the Tribunal in Truswell (supra) (at para 136).

The issue now for the Tribunal is, having regard to the historical and scientific significance to Australia of Regulator 1062, whether its loss to Australia by way of a permit to export the regulator permanently would significantly diminish the cultural heritage of Australia.
The Tribunal is firmly of the view that the above question must be answered in the affirmative. The expert examiners were unanimously of that view, given the importance of the worldwide role it played in 19th century astronomy. The Tribunal has considered all that was placed before it and has preferred the evidence of the respondent to that of the applicant and reached the above conclusion for the same reasons as proffered by Professor Home, supported as it was in the main by Drs Lomb and Biggs. As far as is known to date, Regulator 1062 is the last remaining regulator known to exist in Australia to have played such a significant role in underpinning the high-precision work done at the Melbourne Observatory in the 19th century, which was a dramatic advance in the standard of Australian research and which is acknowledged as one of the outstanding achievements of Australian science in the 19th century and acclaimed internationally. The considered view of the Tribunal is that its loss to Australia would, without question, significantly diminish the cultural heritage of Australia and the correct or preferable decision is that the permit sought should not be granted and pursuant to s10(5)(b) of the Act it be refused.
Accordingly, the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns and Air Marshal I B Gration, Member
Signed:         .............….(Signed)..............…
  Barbara Armstrong (Associate)
Date/s of Hearing  7 September 2000
Date of Decision  11 April 2001
Counsel for the Applicant        In Person
Counsel for the Respondent    Mr D Smith
  Departmental Representative