Hooper and Minister, Department of Environment and Heritage
[2005] AATA 735
•3 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 735
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/39
GENERAL ADMINISTRATIVE DIVISION )
Re LEON HOOPER Applicant
And
MINISTER, DEPARTMENT
OF ENVIRONMENT AND
HERITAGERespondent
DECISION
Tribunal Dr KS Levy, Member Date3 August 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
…….............[Sgd].....................
KS Levy
Member
CATCHWORDS
CULTURAL HERITAGE –Protection of movable Cultural Heritage Export of Cultural Heritage – McLaren Steam Traction Engine No 705 of 1901 8HP, compound cylinders - whether Category B item - significance to Australia - whether export would cause significant diminution of cultural heritage - decision affirmed
Protection of Movable, Cultural Heritage Act 1986 ss 7, 8, 10
Protection of Movable Cultural Heritage Regulations 1987 Sch 1, part 4Re JB Hawkins Antiques v Minister for Communications and the Arts (1995) 38 ALD 323
Truswell v Minister for Communications and the Arts (1996) 42 ALD 275
Re Jacklin and Minister for the Arts and Centenary of Federation [2001] AATA 416
Re Hawkins and Minister for the Arts and Centenary of Federation [2001] AATA 304REASONS FOR DECISION
3 August 2005 Dr KS Levy, Member Introduction
1. In these proceedings the applicant, Leon Hooper (the “applicant”, seeks review of a decision of the Minister, Department of Environment and Heritage (the “respondent”) under section 29(1) of the Administrative Appeals Tribunal Act 1975.
2. The decision under review was a decision of the respondent made on 24 December 2004 which refused the applicant the grant of a permit to export a McLaren Steam Traction Engine under the Protection of Movable, Cultural Heritage Act 1986 (“the Act”).
3. On 17 January 2005, the applicant lodged the application for review with the Administrative Appeals Tribunal. On 21 February 2005, the respondent issued a statement of reasons in support of the Minister’s decision which is the subject of the present application.
4. On 22 June 2005, a formal hearing of the applicant and the respondent was undertaken. The applicant was self represented. Mr A Seglenieks, Senior Legal Office of the Legal Section, Department of the Environment and Heritage appeared as advocate for the respondent.
Background
5. The original application for a permit to export this steam engine was made by a person who, it is understood, was interested in purchasing this steam engine from the applicant. That person subsequently withdrew from the potential purchase as the application had been with the Department for over 12 months and no definitive answer was forthcoming as to the likelihood of success. Mr Hooper has pursued other potential purchasers overseas and has now lodged an application for an export permit in his own name.
Documentary Evidence
6.The following documents were admitted into evidence:
Exhibit 1Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents)
Exhibit 2Draft summary record of the 60th meeting of the National Cultural Heritage Committee on 13 and 14 May 2004
Exhibit 3 Curriculum Vitae of Matthew Spencer Churchward
Exhibit 4Extract (pages 52 and 53) of publication “The History of J & H McLaren of Leeds – Steam & Diesel Engine Makers” by John Pease
Exhibit 5A summary document entitled “Surviving McLaren Steam Engines in Australia built before 1910”.
Evidence
§ Mr Hooper
7. The applicant, Mr Leon Hooper, made a sworn statement in the form of a submission. Mr Hooper, in particular, referred to the statement of reasons provided on behalf of the Minister at T2 of Exhibit 1. In particular, he referred to paragraphs 28 to 33 on page 9 of that exhibit. In paragraph 29 he disagreed with the statement that the role of the steam traction engines was connected with artesian water in the primary industries. In paragraph 30, he referred to the statement that the steam engine which he has, number 705, had “probable links to the Griffiths family of Toowoomba”. The applicant suggested that “probable links” provides no evidence and therefore does not carry much weight at all. Likewise, the reference in that paragraph to the engine having provenance to Mr EJ Beardmore, a prominent grazier and at one time, a Member of the Queensland Legislative Assembly is not significant. The applicant says that Mr Beardmore probably was prominent, however so was everybody else who owned a steam engine at that time.
8. He also took issue at paragraph 31 of the Statement of Reasons where there is reference to the regulations in that an engine such as this should be represented in at least two “public collections in Australia by an object of equivalent quality”. While he did not dispute that there is only one example of a McLaren steam traction engine and that that is held in the Power House Museum in Sydney, the applicant argued that there is no difference between the steam engine which he has being available in a warehouse or in a Museum. He argued that his engine was in a public rally every 6 months where 3,000 people may see it. He therefore contended that being on display in a Museum is not the only way of demonstrating compliance with the regulations.
9. He also referred to the document at T3 of Exhibit 1. This is the Expert Examiner’s Report prepared by Mr D Rossington. This report was prepared by the previous applicant for an export licence for this steam engine, a Mr DA Fremantle. The applicant took issue with the report by Mr Rossington, particularly in relation to comments that the previous applicant had not portrayed this steam engine accurately. He stated that he had contacted Mr Beardmore who stated that some parts were taken off his engine over the previous 12 months.
10. Mr Hooper also made reference to the reports by Mr Lloyd and Mr Thurrowgood. These were reports of expert examiners. He referred to the report by Challenge Assessment and stated that to do up a McLaren steam engine, would cost about $100,000. He further informed the Tribunal that he runs a property in the west of Queensland and as a result of drought, his finances were now diminished. He has also had an accident which involved the loss of some of his fingers and this, together with the financial position, resulted in his need to sell the McLaren steam engine.
11. In cross-examination by Mr Seglenieks, the applicant stated that he acquired the steam engine for $14,000 from Mr Beardmore.
12. Evidence was also provided by Mr Kevin Wohlers who explained the role of the Department’s Secretary to the Committee and the report and sequence of information gathered from the various expert witnesses. He explained that the time to gather various reports from witnesses was a lengthy process by the time reports were returned. It was also explained that while originally, two of the expert reports had recommended granting the export permit, the Committee agreed to a further expert report being obtained and that subsequently the two original reports recommending that a permit be granted were revised so that ultimately, all of the expert reports, on the basis of further information being available to them, agreed to recommend against the granting of a permit.
13. Expert evidence was provided by Ms Jennifer Sanders, who is Deputy Director of the Power House Museum in Sydney. She stated that in the museum in which she works, a McLaren compound engine is held as part of their collection. She emphasised that the state of the current engine was not a factor which would inhibit its value to a museum, as there is often benefit in not restoring such an engine. She stated that if the Power House Museum was to obtain the McLaren engine No 705 (hypothetically speaking), it would probably not be restored. She stated the significance is not based on the restoration but on experience and policy, and that it may be more significant in its original condition. She explained that the meeting of the Cultural Heritage Committee made its decision also after the report of the Matthew Churchward.
14. Evidence was also provided by Mr Churchward. Mr Churchward is a professionally qualified mechanical engineer and works as the Curator, Engineering and Transport of Museum, Victoria. He explained pains-taking enquiry into acquiring the history and the difficulty in acquiring an accurate history of an item such as the McLaren No 705. He also differentiated other McLaren engines which were available but a number of these were not compound engines as was the one for which Mr Hooper sought an expert permit. Mr Churchward would also refer to exhibits 4 and 5 in drawing a conclusion that No 705 was the oldest surviving example of such an engine. He was able to demonstrate the other engines referred to and to differentiate them.
15. Mr Churchward said the key features of No 705 was the age of this engine, that it was the longest surviving McLaren and one of the first to be introduced, that it had associated with bore drilling in Central Queensland and its association with the Griffith family and the Beardmore family.
Submissions
16. Mr Hooper referred to his previous submissions and discussed whether the engine was in a public collection by being available in a public display. Mr Seglenieks referred to Mr Hooper’s view that its value was based on this engine being fully operational. However, he argued the term “significant” had been previously defined in the case of Re Jacklin and Minister for the Arts and Centenary of Federation [2001] AATA 416 and in Re Hawkins and Minister for the Arts and Centenary of Federation [2001] AATA 304. He also referred the Tribunal to his submission in the Statement of Facts and Contentions concerning the term “public collection”, which was also dealt with in Jacklin’s case.
Legislation
17.The relevant provisions of the Act are as follows:
“Sect 7
Movable cultural heritage of Australia
(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).
Sect 8
National Cultural Heritage Control List
(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 .
Sect 10
Grant of permits in respect of particular objects
(1) A person may apply to the Minister for a permit to export a Class B object.
(2)An application shall be made in writing in the prescribed form, or, if no form is prescribed, the form approved by the Minister.
(3)On receipt of an application, the Minister shall refer it to the Committee and the Committee shall refer it to one or more expert examiners.
(4)The expert examiner or examiners shall submit to the Committee a written report on the application, and the Committee shall forward the report to the Minister together with the written recommendations (if any) made by the Committee.
(5) The Minister shall consider the report and recommendations (if any) and:
(a)grant a permit to export the Class B object concerned, subject to such conditions (if any) as the Minister specifies; or
(b)refuse to grant a permit.
(6)In considering the application, an expert examiner, the Committee and the Minister:
(a)shall have regard, among other things, to the reasons referred to in subsection 7(1) that are relevant to the object to which the application relates; and
(b)if satisfied that the object is of such importance to Australia, or a part of Australia, for those reasons, that its loss to Australia would significantly diminish the cultural heritage of Australia—shall not recommend the grant of a permit, or grant a permit, as the case may be, to export the object permanently.
(7)If the Minister refuses to grant the permit, the Minister shall, within the prescribed period after the decision is made, cause to be served on the applicant notice in writing of the refusal, setting out the reasons for the refusal.”
18. The regulations referred to in section 8 are the Protection of Movable Cultural Heritage Regulations 1987 (the “regulations”). In accordance with section 8(1) of the Act, a number of categories that constitute the Movable Cultural Heritage of Australia and which are subject to the requirement of an export permit are set out in Schedule 1 of the Regulations.
19. Part 4 of Schedule 1 is as follows:
“Schedule 1
Part 4 Objects of Applied Science or Technology
4.1This Part lists heritage objects of the category Objects of Applied Science or Technology .
4.2The objects in this category relate to human enterprise and activity, other than artistic activity, such as:
(a)tools, weapons, implements and machines; and
…
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.
4.4 Objects in this category are Class B objects for the Act, and include:
(a) any agricultural object, including:
(i) an object used for agricultural production; and
(ii) an object used for processing agricultural products; and
(iii)an object relating to an industry producing products for use in agriculture; and
(iv)any tool, implement or equipment used or intended for use in agriculture or in farming life; and
(v) scientific equipment relating to agricultural research; and
(vi) any other thing related to agriculture; and
(b) any engineering object, including:
(i)a manufactured object relating to any branch of engineering, including any object that is a machine or hand tool, engine or workshop equipment, a control system or control mechanism, or an invention, prototype or related model or patent object; and
(ii) any other thing related to engineering; and
…..
(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
(v)any object that is a component or part related to any object mentioned in subparagraphs (i) to (iv); and
…..”
Issue –
20. The issue for determination is whether refusal to grant a permit under section 10 of the Act was correct in the circumstances.
Consideration
21. All of the evidence, both and oral and documentary, together with the statutory legislation and case law, have been taken into account in determining this application.
22. As the issue to be ultimately decided is whether the refusal to grant a permit under section 10 of the Act was the correct or preferable decision in the circumstances, it would seem that there are three subordinate questions to be answered:
(a)Is the 1905 McLaren Steam Traction Engine, Builders No 705, part of the “Movable Cultural Heritage of Australia” as defined in section 7 of the Act?
(b)Whether the McLaren Engine No 705 falls within one of the categories of objects in “the control list” within section 8(2) of the Act? And
(c)Whether the McLaren No 705 is of significance to the Australian cultural Heritage and comes within the bounds of Part 4 of Schedule 1 of the Regulations?
23. In relation to Question 1 – does the McLaren No 705 satisfy the definition in section 7 of the Act?
24. After noting the submissions of both the applicant and the respondent, the Tribunal finds that the McLaren No 705 satisfies the section 7 in that it is of historical importance to Australia and that it is also of technological importance. Therefore, it satisfies section 7(1)(g) of the Act in that it is an object of scientific or technological interest. I accept the evidence of Mr Churchward in particular and to a lesser extent, that of Ms Jennifer Saunders of the Power House Museum in Sydney that the steam engine is an object of scientific or technological interest as this object is one which is a significant object which advanced agricultural productivity in the early to mid-20th century. It also is of considerable value from an educative point of view for Australians of all ages.
25. In a similar context it is also of value from a social historical perspective in that it was previously owned by Mr EJ Beardmore who was a grazier in the St George district in Queensland and was also a former member of the Queensland Legislative Assembly. There was evidence provided that the Beardmore dam on the Maranoa River was also named in memory of Mr Beardmore. The McLaren No 705 also has historical connections with the Griffiths family of Toowoomba. The Griffiths family established the Toowoomba Foundry which produced the “Southern Cross” windmills which had some notoriety in previous years.
26. The respondent submitted also that the McLaren had a number of uses in agriculture in the early 20th century. These included sawmilling and the drilling of artesian bore drains, either in establishment of such drains or in clearing them. It was also suggested that the McLaren had a possible use in the construction of bore sinking rigs. However, its use in developing irrigation systems for artesian water is undoubtedly one of significant effect for that period of time and is therefore an object which is of importance to Australia for historical and/or scientific and/or technological reasons as provided for by section 7(1) of the Act.
27. I therefore determine that the 1905 McLaren Steam Traction Engine, Builders No 705 which is the subject of this application is to be considered as “movable cultural heritage of Australia” within the meaning of section 7(1)(g) of the Act, as it is an object of scientific or technological interest.
28. In relation to Question 2 above – that is whether the McLaren No 705 is an object which is recognised by “the Control List” in terms of section 8(2) of the Act, that section provides for objects to be classified in two categories – class A and class B, which require the issue of a permit or certificate if such an object is to be legitimately exported from Australia. The list of objects which are subject to export control and which comprise either a class A or class B object are delineated in terms of the descriptions in the regulations. Specifically, these are outlined in Schedule 1 of the Regulations. Within Schedule 1, Part 4 deals with “objects of applied science or technology”. Regulation 4.2 indicates that objects in this category refer to human enterprise and activity such as:
“(a) Tools, weapons, implements and machines;
…..”
29. The McLaren No 705 is clearly, both in design and purpose, a tool or implement or machine for human enterprise and activity (other than artistic activity). Therefore, it is clearly an object which falls within Part 4 and accordingly, the Tribunal so finds.
30. Regulation 4.3 prescribes that the object must be of significance to Australia and if it is not of Australian origin – it was used in Australia at least 30 years ago, and, it is an object referred to in regulation 4.4 and it is not represented in at least two public collections in Australia by an object of equivalent quality. The Tribunal accepts the evidence of four expert examiners who ultimately, or unanimously agreed that the McLaren No 705 is of significance to Australia and that it should not be exported. The Tribunal is satisfied that Regulations 4.3(a), 4,3(b)(iii), 4.3(c) and 4.3(d) are all satisfied. In relation to regulation 4.3(c) the McLaren No 705 has been determined under regulation 4.2(a) that it is tool implement or machine, and the evidence of the expert witnesses which has been accepted by the Tribunal also shows that it was such an object used for agriculture or farming life. Consequently, regulation 4.3 and 4.4 are satisfied.
31. While it is accepted that the provisions of sections 7 and 8 and Part 4 of Schedule 1 of the regulations sufficiently indicate the McLaren No 705 is an object of movable cultural heritage which should be subject to export control. The final issue is whether the decision of the Minister to refuse a permit under section 10(5)(b) complies with section 10(6) of the Act. That requires the Minister to consider whether the object is of such importance to Australia, or a part of Australia, and for those reasons that it is lost to Australia would significantly diminish the cultural heritage of Australia.
32. In considering the question of whether the export of such an object would significantly diminish the cultural heritage of Australia, there must be shown to be that its value is of “significance” as defined in Regulation 2.1. This regulation is as follows:
" Regulation 2 Interpretation
“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.”
33. Based on the evidence submitted to the Tribunal and which was accepted as a finding of fact, it is clear that the McLaren No 705 was manufactured in the United Kingdom and not in Australia. However, employment of the McLaren No 705 was of considerable technological or social advancement in the era in which it was used and advanced the level of productivity and expectation of productivity of the agricultural industry in Australia. Even though those who owned McLaren steam engines were undoubtedly major land owners and a relatively small percentage of the population, the McLaren’s contribution to the cultural heritage, and its importance in the development of Australia and the agricultural industry, which was a significant economic impact for a majority of the 20th Century should not be underestimated. Its current value both of social historical as well as technological and scientific historical importance cannot therefore be gauged on its present monetary worth as submitted by the applicant, but rather, must be determined in accordance with the purpose of the Act and its scientific and technological contribution must be regarded as being of significance.
34. The word “significance” relates to ”importance”. To amplify this more clearly, significance must be taken to mean the quality of having importance in the current context. It may be described as how unusual or remarkable the object is. The criterion for determining whether an object is “significant” might be viewed in terms of the degree to which it departs from what is common knowledge. It is what informs people of national historical development and which is not otherwise obtainable. “Significant” also implies a discernable differentiation between present knowledge of cultural heritage and that which would exist if measured hypothetically, such an object was not present or available to the public.
35. This definitional context may also be viewed in terms of Regulation 4.3 as to whether or not such an object is represented in at least two public collections. The applicant submitted that the object is available for public display and does not necessarily need to be in a Museum to be in a public collection. The respondent, on the other hand, argued that being available in a public display periodically does not satisfy being in a “public collection”. I think that it is implied that a collection must be placed with more than one object of the same or different nature. Certainly, a collection implies a co-location of objects of the same or different nature and I accept the applicant’s submission that it does not need to be in a Museum. However, an object on public display which may or may not be co-located temporarily does not satisfy the requirement of being in a public collection and available to the public the majority of the time if it is held in isolation on a property in rural Queensland.
36. The Tribunal also considered that Regulation 4.3(d) required that it be an object of applied science or technology and that consideration must be given to the criteria that “it is not represented in at least two public collections in Australia by an object of equivalent quality” (Tribunal emphasis). The term “equivalent quality” is not defined in the legislation and on the applicant’s submission, the McLaren No 705 is of little value and therefore perhaps of poor quality. However, the requirement there should be at least two such objects represented in public collections is not presently satisfied and on the evidence available there are no other examples of a McLaren double crank compound two speed general purpose steam traction engine built in that era which are available in public collections.
37. There was evidence provided that some objects of a similar age or quality might be restored partially or fully. There is also evidence however that an object in its present state, unrestored, is also of significant cultural value and therefore whether it is restored or not might be a matter upon which experts in the field may have different views. However, that question is not of major importance for determination by the Tribunal, as the fundamental issue that there are not presently two such objects in public collections and the McLaren No 705 is the only remaining object which might enable the legislation to be satisfied wouldindicate that if the McLaren No 705 was exported from Australia, then there is little or no likelihood that there might ever be two such objects in public collections in Australia. The argument for refusing an export permit is therefore significantly strengthened.
38. In considering the matter in context, therefore, the Second Reading Speech of the Honourable the Minister for the Arts, Heritage and Environment who introduced the Protection of Moveable Cultural Heritage Bill indicated that the purpose of the legislation was not to prevent export of cultural material generally. The Minister said:
“We are concerned only to see that those objects, the export of which would constitute an irreparable loss to our cultural heritage, remain in Australia.”
39. In considering the decision which the Minister was required to make under section 10(6) of the Act, then whether export of the McLaren 705 would significantly diminish the cultural heritage of Australia would depend on whether its export might be regarded as a permanent loss to Australia (see Re JB Hawkins Antiques v Minister for Communications and the Arts (1995) 38 ALD 323 and Truswell v Minister for Communications and the Arts (1996) 42 ALD 275). Therefore, the Tribunal needs to be satisfied that the export of this object would diminish the cultural heritage of Australia in a notable way and is, therefore, significant.
40. The Tribunal is satisfied that both procedurally and with regard to the legislative considerations required by sections 7 and 8 in addition to the decision-making discretion to be applied under section 10(6) of the Act, that these have been correctly applied.
41. The decision under review is therefore affirmed.
42. As to this application, the Tribunal makes the comment however, about concerns raised by the applicant in terms of the considerable time required for him to receive resolution of his application. He referred to an applicant for an export permit for this object and who withdrew his application (and his offer to purchase the McLaren No 705) after the matter remained unresolved for approximately 12 months. The applicant also referred to an old steam engine of comparable age and condition (although not identical in model etc) which was on the wharf and about to be exported unlawfully, and indicated that an export permit was granted within 6 weeks. There are undoubtedly other considerations and facts involved but for an applicant in these circumstances where, after a very long time a permit has been refused, this is undoubtedly a frustrating exercise where the applicant cannot sell an asset he owns and equally, he may have little or no opportunity to sell it within Australia. The Department’s advocate indicated there are opportunities to provide assistance to the applicant in these circumstances where the applicant, who is not a young man and is now in a poor financial position.
43. The Tribunal suggests that the administrative processes of the Act for this particular application and applicant would be advanced if the Department could facilitate assistance (either advisory, facilitative or financial) as far as possible for Mr Hooper.
44. As indicated in paragraph 41, the decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 22 June 2005
Date of Decision 3 August 2005
The Applicant appeared in person
For the Respondent Mr A Seglenieks, Departmental Advocate
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