Jacklin and Minister for the Arts and the Centenary of Federation
[2001] AATA 417
•17 May 2001
`
DECISION AND REASONS FOR DECISION [2001] AATA 417
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2000/345
GENERAL ADMINISTRATIVE DIVISION )
Re STORM SEYMOUR JACKLIN
Applicant
And MINISTER FOR THE ARTS AND THE CENTENARY OF FEDERATION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Date17 May 2001
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision of the Respondent, Minister for the Arts and the Centenary of Federation, dated 4 February 2000 in which he refused the issue of an export permit to the Applicant, Mr Storm Seymour Jacklin, for the Walker Mailer Steam Engine pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Export of Cultural Heritage application – Walker Mailer Steam Engine - whether Category B item - significance to Australia - whether export would cause significant diminution of cultural heritage - decision affirmed
LEGISLATION
Protection of Movable Cultural Heritage Act 1986 ss 3, 7, 8(2), 9 and 10
Protection of Movable Cultural Heritage Regulations 1987 2(1) and 3 and Schedule 1 Parts 4 and 9
Protection of Movable Cultural Heritage Amendment Regulations 1998 - Explanatory Statement
CASE LAW
Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155
Re Best v Minister for the Arts and Administrative Services (1994) 36 ALD 343
Re Blake and Anor v Minister for Communications and the Arts (1995) 38 ALD 333
Re J B Hawkins Antiques v Minister for Communications and the Arts (1995) 38 ALD 323
Tasmanian Conservation Trust Inc v Minister for Resources and Anor (1995) 55 FCR 516
Truswell v Minister for Communications and the Arts (1996) 42 ALD 275
REASONS FOR DECISION
17 May 2001 Ms G Ettinger, Senior Member
The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Minister for the Arts and The Centenary of Federation ("the Minister") dated 4 February 2000 (T2/10), in which the Minister conveyed to Mr Storm Jacklin, the Applicant in these proceedings, his decision to refuse to grant, pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986, an export permit for the Walker Mailer steam engine ("the Walker engine"), the subject of these proceedings.
In refusing to grant an export permit because the "… steam engine is of such cultural importance to Australia that its loss by permanent export would significantly diminish the cultural heritage of this country", the Minister stated the reasons for his decision as follows:
"1. All the experts consulted in regard to this application agree that the engine has been used to power amusement rides and believe that with further research, it will be possible to re-unite the engine with its original ride or the mousetrap factory for which it is most famous.
2. This is the only known Walker roundabout engine to survive in Australia, and there are no known Walker engines of any type held in public collections in Australia. This particularly (sic) example is considered a rare form of steam engine.
3. The involvement of the engine with amusement rides places it in the movement to take entertainment to the masses in the form of travelling show ground amusements. There is considered a strong possibility that this particular engine may be among the first steam powered amusements in Australia." (T2/9)
I note here for the sake of completeness that this matter was linked, and heard simultaneously with the review of the decision in Matter N2000/344 in which permission for the grant of an export permit for the Ruston Proctor Colonial Steam Engine Class SHA 42028 ("the Ruston Proctor engine"), had been refused by the Minister. I did not see either engine but I was satisfied that I had illustrations and technical descriptions from people qualified to discuss the technological qualities of both engines. There were also a number of photographs of the engines in the Exhibits before the Tribunal. I therefore, did not think it necessary to put the parties to extra expense so that I could physically view the engines.
The Applicant was represented in both matters by Mr M Condon of counsel, instructed by Mr M Gemmell of Glasson Gemmell McGill Solicitors, and the Respondent by similarly by Mr J Johnson of counsel, instructed by Ms S Brown of the Australian Government Solicitor.
ISSUES BEFORE THE TRIBUNALThe issues before the Tribunal were:
·Whether the Walker Mailer Steam Engine was of such significance to Australia that allowing a permit for its export pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986 would significantly diminish the cultural heritage of Australia.
In order to make a decision in respect of the above, the Tribunal was also required to consider the following:
· Whether the Walker Mailer Steam Engine fell within the definition of movable cultural heritage as defined in section 7 of the Protection Of Movable Cultural Heritage Act 1986;
· If so, whether the Walker Mailer Steam Engine was a Class A or a Class B object pursuant to section 8(2) of the Protection of Movable Cultural Heritage Act 1986;
· If a Class B object, whether the grant of an export permit was appropriate in the circumstances, pursuant to section 10 of the Protection of Movable Cultural Heritage Act 1986, which involved considering:
·Whether the Walker Mailer Steam Engine came within the requirements of Part 4 of the Protection of Movable Cultural Heritage Regulations 1987
·Whether the Walker Mailer Steam Engine Number came within the requirements of Part 9 of the Protection of Movable Cultural Heritage Regulations 1987.
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter was the Protection of Movable Cultural Heritage Act 1986 ("the Act"), in particular sections 7, 8(2), 9 and 10, and the Protection of Movable Cultural Heritage Regulations 1987 ("the Regulations"), in particular regulations 2 and 3 and Parts 4 and 9 of Schedule 1. The object of this legislation is to protect the movable cultural heritage of Australia's by subjecting such objects to export control.
Section 7 of the Act defines the phrase "movable cultural heritage of Australia" as follows:
"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 sounds recordings;
(j)any other prescribed categories.
…"
Regulation 3 of the Regulations outlines the prescribed categories pursuant to section 7(1)(j) of the Act:
"3 Prescribed categories
For the purposes of subsection 7(1) of the Act, the following categories are prescribed:
(a) archaeological objects of non-Australian origin;
(b)natural science objects;
(c)numismatic objects;
(d)objects of social history [historical significance];
(e)philatelic objects.
…"
Section 8 of the Act enables the compilation of a list named the National Cultural Heritage Control List ("the Control List"), which outlines the "categories of objects that constitute the movable cultural heritage of Australia and are subject to export control." Specifically, section 8(2) of the Act provides for the further classification of the Control List:
"8 National Cultural Heritage Control List
(1) …
(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."
Section 9 of the Act prohibits the unlawful exportation of a protected object and provides large penalties for contravention of the section:
"9 Unlawful exports
…
(3) A person who knowingly:
(a)exports, or attempts to export, an Australian protected object otherwise than in accordance with a permit or certificate; or
(b)contravenes, or attempts to contravene, a condition of a permit or certificate;
is guilty of an offence punishable, on conviction by:
(c)if the person is a natural person – a fine not exceeding $100,000 or imprisonment for a period not exceeding 5 years, or both; or
(d)if the person is a body corporate – a fine not exceeding $200,000.
…"
Section 10 of the Act outlines the procedure with regard to applying for a grant of a permit:
"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 approved form, or if no form is prescribed, the form approved by the Minister.
(3)On receipt of an application, the Minister shall refer 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 it 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 Tribunal was also required to consider the relevant parts of the Regulations, particularly Parts 4 and 9 of Schedule 1. Part 4 of Schedule 1 outlines those objects relating to applied science or technology:
"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:
tools, weapons, implements and machines; and
any other kind of object produced by, or related to, an object of the kind mentioned in paragraph (a), including prototypes, models, patents and equipment.
4.3An object is in this category if it:
(a)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) is an object of the kind mentioned in item 4.4; and
(d)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)…
(a)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
…"
The phrase "significance to Australia" is defined in regulation 2.1 of the Regulations:
"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."
Part 9 of Schedule 1 outlines those objects of historical significance, and follow as relevant:
"Part 9 Objects of Historical Significance
9.1This Part lists heritage objects of the category Objects of Historical Significance.
9.2An object is in this category if it:
(a)is an object of the kind mentioned in item 9.3; and
(b)is associated with a person, activity, event, place or business enterprise, notable in Australian history; and
(c)is at least 30 years old; and
(d)is not represented in at least 2 public collections in Australia by an object of equivalent quality.
9.3Objects in this category are Class B Objects for the Act, and include:
(a)objects of heraldry; and
(b)objects relating to Australian military history; and
(c)objects relating to domestic life, including buildings, fixtures and decorations, equipment and furniture, costumes and textiles and personal effects; and
(d)objects relating to work life, including specialised trades and labour material, trade unionism, company activity and corporate identity, trade and commerce; and
(e)objects relating to courts and tribunals, law enforcement including the police, law-breakers, convicts and prison life; and
(f)objects relating to education; and
(g)objects relating to health and medicine; and
(h)objects relating to arts and crafts; and
(i)objects relating to leisure and recreation, including all forms of sport, entertainment and tourism; and
(j) objects relating to politics; and
(k) objects relating to exploration; and
(l) objects relating to migration; and
(m) objects relating to community activities; and
(n) objects relating to religion.
…"
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents ("the T-Documents"), lodged in Matters N2000/344 and N2000/345 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the following other Exhibits:
ITEM DATE NAME
Letter from Department of Communications Information Technology and the Arts to Mr M Gemmell 22 January 2001 Exhibit A1
Photographs (7) of Various Traction Engines Exhibit A2
Photographs (3) of Walker Steam Engine Exhibit A3
Report of Mr B Macdonald (Ruston Proctor Steam Traction Engine) 5 October 2000 Exhibit A4
Report of Mr B Macdonald (Walker Steam Engine) 5 October 2000 Exhibit A5
Report of Mr B Macdonald Together With Attachments 6 February 2001 Exhibit A6
Photograph of Ruston Proctor Steam Traction Engine recording the date of inspection Exhibit A7
Photographs (4) of Engines Similar to the Walker Steam Engine Exhibit A8
Photographs (4) depicting Engines at Work Exhibit A9
Statement of the Applicant 6 October 2000 Exhibit A10
1954-5 Certificates of Inspection of Boiler and Extract Instructions Owners/Users Exhibit A11
Richard Brooks, Lincolnshire Engines World Wide pages 64-5 Exhibit A12
Letter from Mr R Hooley, Ruston Archivist to Mr S Jacklin 16 May 2000 Exhibit A13
T-Documents (N2000/344) Exhibit R1
T-Documents (N2000/345) Exhibit R2
Letter from Glasson Gemmell McGill to Department of Communications, Information Technology and the Arts 22 September 2000 Exhibit R3
Letter from Mr G Clegg to Department of Communications Information Technology and the Arts 9 October 2000 Exhibit R4
Letter from Mr D Rossington to Department of Communications Information Technology and the Arts Received 7 November 2000 Exhibit R5
Guidelines for the Preparation of Expert Examiners' Reports Exhibit R6
Second Reading Speech of the Protection of Movable Cultural Heritage Bill 1985 27 November 1985 Exhibit R7
National Cultural Heritage Account Guidelines Exhibit R8
Comments in Response to Mr Macdonald's Report on Ruston Proctor Steam Traction Engine No.42028 by Mr M Churchward 8 February 2001 Exhibit R9
Richard Brooks, Lincolnshire Engines World Wide – Photograph page 24 Exhibit R10
Boiler Inspection Certificate – NSW State and Local Government Machinery Archives Exhibit R11
Application was made and granted for restricted access to certain documents prior to and during the hearing pursuant to section 35 of the AAT Act. It was not necessary for reference to be made to them in the decision.
Oral evidence was given by the Applicant, Mr S Jacklin; Mr B Macdonald, Field Expert and Registered Expert Examiner; Mr M Churchward, Senior Curator Engineering and Transport, Museum Victoria and Registered Expert Examiner; Mr G Clegg, Conservator, Museum of Applied Arts and Sciences and Registered Expert Examiner and Mr D Rossington, Field Expert and Registered Expert Examiner.
BACKGROUNDBy way of background, I noted that Messrs Churchward, Clegg and Rossington, the principal Expert Examiners conferred with other parties in preparation of their reports, including D and R Standfield, B Burke and C Robson (Exhibit R3).
A further matter by way of background was that the exact date of manufacture of the Walker engine, and its passage through time were not entirely clear, although I noted that the Applicant submitted it was typical of contemporary British technology of the first decade of the twentieth century, and had no adaptations specific to Australian conditions. There was no dispute it had been used in the amusement industry, and that it was likely to have been used to power a carousel. Little else appears to be known until between approximately 1945 and 1947, when it was sold to a scrap dealer, who sold it on to A.W. Standfield Pty Limited ("Standfield"), where it was modified to power machinery in times of power shortages, and used as a heater. I noted that the Applicant also submitted that there was no further information regarding the Walker engine available until the boiler was first certified in 1954. I noted that the parties were not agreed on that date.
EVIDENCE OF MR STORM SEYMOUR JACKLIN - THE APPLICANT
Mr Jacklin, whose statement dated 6 October 2000 was before the Tribunal as Exhibit A10, also gave oral evidence.
Mr Jacklin stated that he had been retained in July 1999 by Wheatcroft and Sons Limited of Leicestershire, England to apply for a permit to export the Walker "Steam Boiler… Boiler ID No 150-16-114" (T3/28) to England. In this respect I noted his comments that:
"Wheatcroft is the owner and operator of a museum known as the Donnington Museum located at Donnington in England … It is a highly regarded museum of world renown containing a wide range of motor vehicles including racing cars, motor bikes, a military collection and steam engines. It is open to the public. Wheatcroft restores items, often at great trouble and expense, before placing them in the Donnington Museum for public display." (Exhibit A10)
Of the intention of Mr Wheatcroft with respect to the Walker engine; Mr Jacklin submitted that the object had been purchased in Australia approximately fifteen years ago. Mr Jacklin advised that he had been requested to:
"… arrange for the Objects to be shipped to England where they would be restored to working condition and then put on display in the steam section of the Donnington Museum." (Exhibit A10)
I noted that Mr Jacklin, in his application for an export permit at T3, had valued the Walker engine at approximately $1,000., a figure substantially lower than that of any of the expert examiners. Mr Jacklin informed the Tribunal that he had relied on figures supplied to him and described the item as follows:
"The condition of this item is such that it has little or no commercial value, requiring a complete rebuild." (T3/28)
I was mindful that Mr Jacklin was questioned regarding his description of the Walker engine as a "boiler" in his application and noted that Mr Jacklin's reply was that he did not at the time know that it was a boiler and an engine.
I further noted the Applicant's comments at T16/72, where he requested that anonymity should be extended to the Applicant for a grant of an export licence. He stated that:
"People involved in the world of old and antique machinery in Australia are small in number and are in the main the domain of the older generation …
The point of my correspondence is to say that without anonymity the heat of battle has been such that it is unlikely that anyone who has publicly supported export would get a balanced result from members of the old machinery community. This is not a criticism of the obvious knowledge of the Experts. It is about underlying peer pressure that surreptitiously influences the decision making process in a small community."
I was curious regarding the significance of the statement "old machinery community" and comments made about age at the hearing. I note for clarification only, as I assigned no weight to the information about age in regard to the decisions I was required to make, that the Applicant's witness Mr Macdonald was 73 years old at the time of the Hearing, and the ages of the Respondent's witnesses were as follows: Mr Clegg, 53 years old, Mr Rossington, 38 years old and Mr Churchward, 36 years old.
When asked about the Mouse Trap Factory (run by Standfield), Mr Jacklin said that Mr Standfield junior, son of the man who had purchased the Walker engine, informed him that the engine had been a minor part of the operation, and that if it had ever been used, he had not seen it.
EVIDENCE OF MR BRUCE MACDONALD - FIELD EXPERT AND REGISTERED EXPERT EXAMINERMr Macdonald, in his statement of 5 October 2000, (Exhibit A5), informed the Tribunal that he had established and operated his own public museum at Goulburn from 1958 to 1978 with a working display of 32 different types of engines dating from 1835 to 1954. His statement also indicated that he had involvement in the preservation movement from 1953, and had himself restored 19 steam engines.
Mr Macdonald is also a qualified engineer in the heavy steel manufacturing industry and a registered expert examiner. I noted that full details of his qualifications and experience were outlined at paragraphs 2-a to 2-h of his report, Exhibit A5. He had two other reports before the Tribunal as Exhibits A4 and A6, related to the Ruston Proctor and Walker engines, and as relevant are discussed below. I was mindful that Mr Macdonald had the opportunity of considering the reports of the other expert examiners.
Mr Macdonald described the Walker engine as "reasonably complete" when he examined it on 7 July 2000. He said that it was a locomotive type steam boiler surmounted by a two cylinder horizontal steam engine. Manufacture he, said could be attributed to the firm of Walker & Sons of Tewkesbury, Gloucestershire, England ("Walker"), who were manufacturers of fairground devices dating from the late Victorian era. Mr Macdonald also stated that the description of the origin accorded with the brass plate on the engine.
Mr Macdonald said that engines were used for various fairground rides but that the Walker subject of this claim, was most likely used for a carousel. Referring to Exhibit A3, Mr Macdonald discussed what may have been a modification, or an adaptation for a stand, although he said that he was not convinced it had been modified.
In reply to a question in cross-examination, Mr Macdonald said that the numerals "14157" referred to in paragraph 4-j of Exhibit A5, could have indicated a manufacturer's serial numbers. The five figure number alerted him, Mr Macdonald said, to the fact that the manufacture may have been outsourced.
There was some discussion about what the numerals, "150 16-11-11" on the plate signified. Mr Macdonald indicated that in his opinion the 150 referred to a pressure test which measured 150 p.s.i. and the other numbers an indication that the engine was manufactured in 1911.
There was also discussion regarding when the Walker engine would first have been inspected in NSW, with Mr Macdonald giving a history of the development of inspections. He told me that inspections commenced in the various States from 1890, and that in NSW, each inspector was required to identify him or herself by number on the certification. Mr Macdonald said that he had checked the archives for boiler inspection records, and indicated that the Walker engine was now stamped "49 B 79", and in this respect, I noted that in a copy of an inspection certificate, which was tendered as Exhibit R11, bearing the same registration number. However, in the certificate of inspection of 27 November 1954, the Walker engine was identified as "49.U. 79" (Exhibit A11).
Mr Macdonald told me that he visited the Mouse Trap Factory in June 2000 and spoken to Mr Standfield's son, who referred to the Walker engine as "Oh, Dad's toy". Mr Macdonald told me he had learned that it was used to drive certain parts of machinery, but not the whole factory. He said that it was of limited capacity (less than 2 HP of steam), and virtually identical in layout, size and in general to the Savage appearance, and similar to the Thompson. Mr Macdonald also referred to the photograph of the Walker engine in Exhibit A8.
He said that this Walker engine was not unusual and not very different from others in various collections. He agreed it was built for use in an amusement ride but said that it was technologically the same as all portable engines. Mr Macdonald described the construction of a roundabout, carousel or merry-go-round in paragraph 4-d of his report at Exhibit A5.
Mr Macdonald said that there was no information available as to the type of device to which it had been fitted, and that:
"The object is only part of a whole object, the form and whereabouts of which is unknown and its removal from that context not only lessens its significance but it almost transfers it to the common category of "Portable Engines" of which there are a great number in existence in collections of all descriptions …" (Paragraph 5-a of Exhibit A5)
Mr Macdonald emphasised that the only known association with a notable Australian was that with the firm of A.W. Standfield & Co, who received recognition for their endeavours in their improvisation of machines for the mechanised production of rat traps, mouse traps, clothes pegs, light fitting fixtures and brackets from 1933 to 2000. He noted that the association between the engine and the firm was only for approximately 15 years in the life of the firm.
In commenting on the reports of the other expert examiners, Mr Macdonald focused in particular on their statements regarding the possibility of the engine being reunited with its original ride, emphasising that in the thirty years the engine had been available to the "local enthusiast fraternity", nothing had emerged.
I noted that Mr Macdonald also considered the propositions put forward by the other examiners in which he commented that:
"In respect to Mr.Clegg's statement, in his discussion on the "Background", in paragraph 8 he records engines of various makers in existence in Australia and includes the Walker. The Act only requires articles of "equivalent quality" … The Act does not consider name brand. Under the heading "Subject of Application" he states in paragraph 2 that "It is known to have been removed from its roundabout c.1945--˝ but offers no reference for this. I have not been able to find any definite history prior to Standfield's purchase of it c.1950. Under his heading "Recommendation", in paragraph 1 he discusses the possibility that the major part of the device may still exist and be found but offers no practical or financial solution to this quest …
Mr.Churchward on page 2 agrees that the Object's provenance is difficult. I reject his contention that the engine unit might be united with its original ride because the passage of time makes such an aim almost a financial and practical impossibility. If, at the end of that time, nothing eventuates and the object remains in its present state, the present owner's intentions to fully restore it may well have been financially and practically disadvantaged and his intention to fully restore it imay (sic) well have been thwarted. On page 4 Mr Churchward suggests that there are fifteen steam merry-go-rounds in Australia. This is a significantly greater number than other record." (Exhibit A5)
EVIDENCE OF MR MATTHEW CHURCHWARD - SENIOR CURATOR ENGINEERING AND TRANSPORT, MUSEUM VICTORIA AND REGISTERED EXPERT EXAMINER
Mr Churchward, whose date of birth was 8 January 1964, said he was awarded a Bachelor of Mechanical Engineering and a Master of Engineering Science, with a focus on history and technology. Mr Churchward also said that he was involved in research and consultation in the industrial heritage field and had produced a book entitled The Victorian Steam Heritage Register. Mr Churchward said that he had been the curator of Engineering and Transport for the Museum of Victoria since 1994.
In commenting on acquisitions policy, Mr Churchward said that it was normal practice to undertake extensive research prior to acquiring an object for the Museum's collection. He went on to say that at the Museum, an item could legitimately be acquired because it may have been a novel idea even though commercially it may have been a "flop".
Mr Churchward's report regarding the Walker machine was before the Tribunal at T15 (Expert Examiner's Assessment Form in Matter N2000/345). He did not inspect the engine, and commented that from the photograph provided, it was clear the Walker boiler had a steam engine fixed on top of it. He expressed the view that the description provided by the Applicant was therefore incomplete and perhaps even misleading.
Mr Churchward, in respect of the numerals "11" stamped on the Walker engine, said that he did not think it referred to the date of manufacture as he believed the engine was more likely to have been built prior to 1911, but added that that was not definitive.
Mr Churchward estimated the value of the engine at between $10,000. and $20,000. In his report he said that Thomas Walker of Tewkesbury was known to have been a specialist builder of amusement rides who only built steam engines to fit to his own merry-go-rounds and fairground rides. The Walker engine was, he said, a standard semi-portable engine of the type that Walker's produced for "centre engines" to drive their merry-go-rounds. He said that based on the engine's design it would have been built between the mid 1880s to 1910, and had been modified.
Mr Churchward said that:
"If retained in Australia and restored to working order as part of a restored or reconstructed steam merry-go-round, this engine provides a rare opportunity to interpret the history of steam-powered amusement-rides in Australia and to yield a greater understanding of the role that these machines played in the development of Australia's recreational culture." (T15/69)
In addition to its connection with the amusement ride industry which formed a notable part of Australia's show and fairground scene during the early twentieth century, Mr Churchward said it was also associated with the historic Mouse Trap Factory belonging to the Standfield family. He added that the Walker engine was significant to the development of Australia's engineering industry and provided a context to the later steam merry-go-round engine built by Herbert Thomson, a significant innovator in the field.
Mr Churchward also said that the Walker engine represented an extremely rare form of steam engine, and the total number built was likely to have been less than 100. He said that only four examples of the Walker semi-portable remained in the United Kingdom, and this was the only such example in Australia. He said that there was only one example of a steam-powered merry-go-round or carousel in a State or Commonwealth public museum, and that was in Canberra.
Mr Churchward said in evidence, that he had a fairly lengthy conversation with Mr Robson regarding the Walker engine, who had advised him that he had inspected the Walker engine and was strongly of the opinion that it was involved in the fairground scene. Mr Churchward added that he thought it may also have been used for steam yachts and steam rides, or even a generator for lighting.
Mr Churchward believed that export of the object would significantly diminish Australia's cultural heritage, and result in the loss of the only known Australian example of this make and type of engine.
EVIDENCE OF MR GRAHAM CLEGG – CONSERVATOR MUSEUM OF APPLIED ARTS AND SCIENCES AND REGISTERED EXPERT EXAMINERMr Clegg, whose Expert Examiner's Assessment Form report was at T12 in Matter N2000/345 and letter dated 9 October 2000 at Exhibit R4, outlined his qualifications for the Tribunal in oral evidence. Mr Clegg said that he was currently employed as a conservator, having been an accredited contractor to the Powerhouse Museum since 1980. Mr Clegg said further that his background was one as a qualified mechanical engineer with a focus on hydraulics and steam plants and as a Registered Expert Examiner. He said that he had an interest in the preservation of machinery and completed a degree in 1988 regarding the Protection and Restoration of Heritage items.
Mr Clegg also said that he was a member of the Road Machinery Society, which was concerned with the history of road and fairground machines and in this regard, a file had been compiled in respect of the Thomas Walker & Sons, Tewkesbury, Gloucestershire operations.
Mr Clegg advised the Tribunal that Thomas Walker specialised in amusement industry rides, which were distinguished by the use of brass and were more decorated than normal engines. Mr Clegg described the Walker engine in the following terms:
"Steam roundabout engine by Thomas Walker, Tewkesbury UK, unidentified by number, comprising locomotive type boiler, engine with duplex cylinders, and integral feed pump." (T12/53)
I noted that in his expert examiner's report at T12/52, Mr Clegg said that he inspected the Walker engine in the 1980s. He estimated the value of the engine to be in the vicinity of $10,000. to $20,000., depending on a detailed assessment of its condition.
Mr Clegg said that his research suggested that the Walker engine, the subject of this claim, was one of Walker's first designs. He said that their designs changed by the 1900's and the construction of the smoke box, which was later modified, revealed the engine as one of the earlier designs. In this respect, I was mindful that in his expert examiner's report, Mr Clegg stated that the Walker engine was Walker's first design because:
"The centre engine differs from the usual small portable steam engine by originally having been mounted on to a truck which incorporated the centre mechanism of the roundabout. The chimney is arranged to direct exhaust steam and smoke into the hollow centre pole of the ride, where it was discharged above the canvas roof. This feature can be seen on the engine, with makeshift chimney added on top to enable further use in a factory later in its life. The engine is typical of the standard design adopted by British makers, with locomotive type boiler, twin cylinder simple expansion engine, and carrying additional brassware as would benefit an amusement machine. Features of its design are recorded as having been superseded in about 1900 in Walkers revised model, so its date can be tentatively set at between 1895 and 1900. This places it amongst the earliest such plants to have worked in Australia." (T12/58)
While he said that he had no specific knowledge as to when the Walker engine was imported into Australia, Mr Clegg said that he had read enough about amusement devices to know that it had been fitted to a rotary ride and that it was of an early design. He said that he disagreed with Mr Robson who considered the engine could not have been used for a rotary ride.
When questioned about the statement of Mr Robson that he was not of the opinion that the Walker engine was used in a rotating ride, Mr Clegg said that the engine exhibited features that showed it was part of a rotary ride. He said that this view was based on the technical detail exhibited by the Walker engine and its modifications. He said that from discussions with the sons of Mr Standfield, he had gleaned that their father had bought the engine from scrap dealers after it was removed from a merry-go-round in Hyde Park.
Mr Clegg added by way of additional information that roundabouts and fairground equipment such as the Walker engine, the subject of this claim, were:
"… a very major source of entertainment in days prior to radio, cinema, mass motor vehicle ownership, and more recently television, and still hold their appeal despite modern competition. As a result, amusement machines of this type are generally held to have a high social significance because of their exposure to and the provision of entertainment to hundreds of thousands if not millions of members of the public at all levels of society." (T12/57)
In respect of the stamping of the engine, Mr Clegg said during his involvement in steam engines, he had come across many examples that had not been stamped by the manufacturer. Mr Clegg also said that he did not agree, when questioned that the date stamp "11" on the Walker engine was necessarily the date of its manufacture, although he said it was one of a number of possibilities.
I was mindful that Mr Clegg stated that the Walker engine was:
"… known to have been removed from its roundabout c1945 and was eventually sold by a scrap metal dealer in the Alexandria/Erskineville/St Peters area of Sydney. What became of the roundabout remains unclear, but industry identities suggest that very few roundabouts were ever scrapped, as their operation was quite profitable, and re-powering was a common option for further use." (T12/58)
Of the Standfield acquisition of the Walker engine, Mr Clegg said that:
"… Standfield's business had attracted considerable attention over the years as the only manufacturer of mouse and rat traps in the Southern Hemisphere. The enterprise was started during the Depression when Standfield contrived a machine out of discarded engineering components and scrap material, and began producing traps, also from scrap materials, as a means of providing an income. The same machine is still in use, with total production of traps now exceeding 60 million items." (T12/58)
Mr Clegg also said that he spoke to Mrs Standfield who told him the Walker engine was "in occasional use in the 1950's", and added that the engine was useful in Standfield's operations in that it provided power during the power strikes. He understood from Mrs Standfield that it eventually became a makeshift factory heater, though he said that she could not specify an exact date.
When questioned about the Walker engine failing to be an integral part of the Mouse Trap Factory, Mr Clegg said that being an integral part did not only refer to the final product.
I noted that in conclusion, Mr Clegg recommended that an export licence be withheld pending further research and investigation into its relationship with the amusement ride industry, as well as the following reasons:
"a)Even removed from its original ride, the engine is considered to be of high social and technical significance due to its association with a huge audience via the outdoor entertainment industry, and the introduction of steam power to that industry. This is the only known example of a Walker roundabout engine to survive in Australia, and no roundabout or roundabout engine of any make appears in any public institution in Australia.
b)The unit has provenance to a well-documented Australian small business which throughout its existence has reflected the Australian traditional makeshift ability to improvise and recycle. The purchase of a cast off and outdated steam engine to provide standby power in the 1940s is a typical and integral part of that story. Standfield's sons who now operate the business anticipate that import competition may force their closure in the near future. They have expressed the wish that their machinery will eventually be preserved,
Retention of the Walker engine in Australia would enable the unit to be re-united with Standfield's machinery, or with its original roundabout if research reveals its existence. In either case it is the writer's opinion that there would be many parties keen to preserve the machine in Australia if given the opportunity.
c)Export to the UK would remove the unit from its area of greatest social and historical significance, to where it would only be accessible to a few Australian visitors." (T12/59-60)
EVIDENCE OF MR DAVID ROSSINGTON - FIELD EXPERT AND REGISTERED EXPERT EXAMINER
Mr Rossington, said that he was awarded a degree in mechanical engineering in 1980 and had been interested in the area of steam technology since 1977. Mr Rossington said that he had been employed in the steam repair and replacement part field from 1986, and that he continued to engage in research into the manufacture and importation of steam technology in Australia.
Mr Rossington informed the Tribunal that he had not inspected the Walker engine and relied on photographs and descriptions when compiling his Expert Examiner's Assessment Form report, which was before the Tribunal at T11 in Matter N2000/345.
In describing the Walker engine, Mr Rossington said that:
"The engine unit of a merry-go-round is the prime mover of the ride and as such provides rotating movement to a complicated gearing mechanism mounted above the engine." (T11/46)
Mr Rossington estimated value of the Walker engine in the vicinity of between $12,000. and $21,000.
In respect of its manufacture by Walker, Mr Rossington informed the Tribunal that:
"Due to a market dominance by the firm of Frederick Savage & Co, it was quite rare for a firm of such a small stature as Walker's to manufacture its own steam centre engines. Many Walker roundabouts used Savage or Tidman engines and merely produced mechanism for driving carousel horses etc." (T11/48)
When asked whether the stamp "11" on the Walker engine referred to the date of its manufacture, Mr Rossington said that he was aware of nothing that would suggest that the Walker engine was stamped at the date of manufacture and said that the date could refer to some later date if it was a date at all.
I was mindful that in his report, Mr Rossington stated that:
"Thomas Walker & Sons were involved in the manufacture of fairground rides and other forms of mass amusement. Little is known of their products and an indication of the small volume of products emerging from the factory can be gauged by the fact that they did not number their products." (T11/46)
Mr Rossington also said that he was not aware of the date on which the Walker engine entered Australia nor was he sure of its use until 1949, when an inspection certificate was issued in respect of the engine. It was before the Tribunal as Exhibit R11.
While he could not elaborate on its ownership in Australia, I was mindful that Mr Rossington stated in his report that:
"As the original operator of this ride is at yet unknown it is quite probable that he/she were of some stature in the community and most certainly a member of the Australian Showmans Guild." (T11/48)
As to the difficulties involved in conducting further research on the Walker engine, Mr Rossington informed the Tribunal that it could be undertaken through speaking to people in the amusement industry who hadn't already been consulted, and through the examination of archival documents.
Regarding the significance of the Walker engine to Australia, Mr Rossington stated that:
"The introduction of powered amusements that could cater for a growing Australian population during a depressed part of our history must rate as a significant development in Australia's largest and most identifiable area of cultural heritage, that of family relaxation and leisure." (T11/48)
I was mindful that Mr Rossington also considered the modification of roundabout engines and stated that with the introduction of new forms of power, the merry-go-rounds were converted to either petrol or electricity and this accounted for the reason why:
"… many ancient pieces of fairground architecture have survived to this day, albeit without their original motive power.
There is a good chance that the ride that this engine drove is still with us and could be reunited if the opportunity arose." (T11/48)Mr Rossington documented the use of the Walker engine in the Mouse Trap Factory owned by Mr Standfield:
"This steam engine after being disposed of as a profitable power source for an amusement ride found a useful life as an emergency lighting plant in the Sydney firm of "Supreme Mouse Traps" Mascot. Purchased in 1947 from a second hand machinery agent the boiler and engine powered the factory during the shortages of the late forties up until the late sixties when it was replaced." (T11/48)
Mr Rossington recommended that an export licence not be granted in respect of the Walker engine and that further research be done into the origin and use of the machine for the following reasons:
"I consider the export of this object would considerably lessen the wealth of Australia's cultural heritage.
Currently to the author's knowledge, there is no example of a merry-go-round centre engine in an Australian public museum.
There exists in Australia private collections of amusement rides and entertainments which would benefit from the availability of this object.
A link with out (sic) past as far as the introduction of amusement devices for the enjoyment of the masses would be lost.
Currently in the UK there are four Walker centre engines while in Australia there is one known example.
This item represents the products of a small firm in an equally small and remote district in England. Their products were specialised engines and mechanisms for the amusement industry and the existence of one of these machines on our shores leaves one wondering the true story of how it got here and by whom." (T11/50)
EVIDENCE OF MR GEORGE MACDONALD CHIEF EXECUTIVE OFFICER MUSEUM VICTORIA AND MR DES LANG ENGINEERING WORKSHOP SUPERVISOR SCIENCE WORKS MUSEUM
There were reports of Mr George Macdonald, Chief Executive Officer of Museum Victoria and Mr D Lang, Engineering Workshop Supervisor of the Scienceworks Museum, before the Tribunal at T13 and T14 respectively. Both stated that the Walker engine was not represented in at least two public collections in Australia by an object of equivalent quality (Item 4.3(d) of the Regulations).
SUBMISSIONS AND CONCLUSIONSI had to take into account the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether the Walker Mailer Steam Engine was of such significance to Australia that allowing a permit for its export pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986 would significantly diminish the cultural heritage of Australia.
In order to make a decision in respect of the above, the Tribunal was also required to consider the following:
· Whether the Walker Mailer Steam Engine fell within the definition of movable cultural heritage as defined in section 7 of the Protection Of Movable Cultural Heritage Act 1986;
· If so, whether the Walker Mailer Steam Engine was a Class A or a Class B object pursuant to section 8(2) of the Protection of Movable Cultural Heritage Act 1986;
· If a Class B object, whether the grant of an export permit was appropriate in the circumstances pursuant to section 10 of the Protection of Movable Cultural Heritage Act 1986 which involved considering:
·The requirements of Part 4 of Schedule 1 of the Protection of Movable Cultural Heritage Regulations 1987
·The requirements of Part 9 of Schedule 1 of the Protection of Movable Cultural Heritage Regulations 1987.
Mr Johnson submitted that according to the decision in Re Blakeand Anor v Minister for Communications and the Arts (1995) 38 ALD 333, the Tribunal was able to consider any applicable guidelines as available to the expert examiners. He directed my attention to page 342 of the decision, where the Tribunal held that:
"The guidelines set out reference criteria which may be of assistance when a recommendation is being formulated.
In assessing the significance of the object the guidelines mention a number of criteria:(a)the contribution, or potential contribution, of the object to yield information that will assist in an understanding of the prehistory, history, natural history, and culture of Australia and Australians;
(b)the contribution, or potential contribution, of the object to the development of Australian culture, and to the recognition of that culture in both Australia and overseas;
(c)the association of the object with a notable person, business, association or enterprise;
(d)the association of the object with a notable event or period in Australian history or prehistory;
(e)the object's importance in demonstrating a high degree of creative or technical achievement at a particular period of Australia's history or prehistory;
(f)the existence, relevance and quantity of other similar objects, which are held in Australia or are represented in Australian public collections; and
(g)any other circumstances which may be relevant."
I noted that a copy of the Guidelines for the Preparations of Expert Examiner Reports were admitted into evidence before the Tribunal as Exhibit R6. They were of interest as background material.
There were various descriptions of the Walker engine amongst the documents before the Tribunal. I have reproduced that of Mr Churchward who provided a comprehensive description as follows:
"'semi-portable steam engine' consisting of a short-firebox internally-fired locomotive-type multitubular (fire-tube) boiler with over–type twin-cylinder high-pressure (non-condensing) steam engine. The estimated capacity of the steam engine is 2½ nominal horsepower and its date of manufacture was estimated to be between 1880-1910, based on the design features and style of construction. The identification plate described in the application indicated that the object was built by Thomas Walker, of Tewkesbury, Gloucestershire, England." (T15/68)
In commencing my deliberations regarding the evidence and submissions, I was mindful that the parties and their witnesses were unable to advise of the exact date of manufacture of the Walker engine. However, there was some consensus between the experts that the engine was one of Walker's first designs, which would date its manufacture prior to 1910. I did not consider the exact date to be of paramount importance, and was satisfied from the evidence that the Walker engine was manufactured in a period between the late nineteenth century and the first decade of the twentieth.
I was mindful that in reaching the correct and preferable decision, the intent of the legislation was not to preclude the export of objects, but rather to preclude the export of only those objects whose importance was so significant that the cultural heritage of Australia would be diminished if they were exported.
I turned then to consider whether the Walker engine fell within the definition of movable cultural heritage pursuant to section 7 of the Act.
WHETHER THE WALKER ENGINE FELL WITHIN THE DEFINITION OF MOVABLE CULTURAL HERITAGE PURSUANT TO SECTION 7 OF THE PROTECTION OF MOVABLE CULTURAL HERITAGE ACT 1986I noted that movable cultural heritage for the purposes of this application is defined in section 7 of the Act. It provides:
"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 sounds recordings;
(j)any other prescribed categories.
…"
I noted the submissions of the parties that the Walker engine fell within section 7(1)(g) of the Act in that it was an object of "scientific or technological interest". I noted that in addition to section 7(1)(g) of the Act, the categories of movable cultural heritage applicable to the Walker engine could also include section 7(1)(j) being "any other prescribed categories", noting that the prescribed categories are outlined in regulation 3 of the Protection of Movable Cultural Heritage Regulations 1987:
"3 Prescribed categories
For the purposes of subsection 7(1) of the Act, the following categories are prescribed:
(a) archaeological objects of non-Australian origin;
(b)natural science objects;
(c)numismatic objects;
(d)objects of social history [historical significance];
(e)philatelic objects"
In determining whether the Walker engine could be considered an object of movable cultural heritage for the purposes of section 7 of the Act, I considered the nature of the engine and the history of its usage in Australia. I was mindful that Mr Churchward stated that while:
"… this particular object, like most other merry-go-round centre engines used in Australia, was built in England, it is of significance to development (sic) Australia's engineering industry because it provides a context to the later steam merry-go-round engine built by Herbert Thomson of Armadale, Victoria (and now held by the National Museum, Canberra). Herbert Thomson was a significant innovator in the application of steam power within Australia, and it would have been from imported merry-go-round engines such as this that he gained his ideas. Thus, this object could have the potential to contribute to an important case study of technological transfer from Britain to Australia." (T15/70)
I also noted the submissions of the Respondent, who, in respect of the connection between the Mouse Trap Factory and the Walker engine, stated that:
"The engine's use in industry in the post-World War II period represented a significant technological benefit to industry during a period of limited power resources." (Statement of Facts and Contentions dated 12 October 2000 page 12)
Mr Condon submitted that while the experts' reports, which had recommended that an export licence not be granted in respect of the engine, were replete with phrases of the transfer of technology between the United Kingdom and Australia, the Walker engine had no local innovation or adaptation of any significance. In this respect, he directed me to the comments of Mr Macdonald, who stated that the Walker engine was not unusual and not very different from other such engines in various collections, and although he agreed it was built for use in an amusement ride, said that it was technologically the same as all portable engines.
In this respect, I was mindful that Mr Macdonald stated:
"The object is only part of a whole object, the form and whereabouts of which is unknown and its removal from that context not only lessens its significance but it almost transfers it to the common category of "Portable Engines" of which there are a great number in existence in collections of all descriptions …" (Exhibit A5)
I also noted that Mr Macdonald did not disagree with the Respondent's experts in this regard, stating that he had learned that it was used to drive certain parts of machinery in the Mouse Trap Factory, but not the whole factory. Notwithstanding, Mr Macdonald added that the relationship between the Walker engine and the Mouse Trap Factory extended for only fifteen years of the firm's operations which lasted from 1933 to 2000.
Mr Rossington, commenting on the use of the Walker engine in the Mouse Trap Factory owned by Mr Standfield, said that:
"This steam engine after being disposed of as a profitable power source for an amusement rise found a useful life as an emergency lighting plant in the Sydney firm of "Supreme Mouse Traps" Mascot. Purchased in 1947 from a second hand machinery agent the boiler and engine powered the factory during the shortages of the late forties up until the late sixties when it was replaced." (T11/48)
I noted that in his report at Exhibit R5, Mr Rossington stated that the Savage steam engine at the Power House Museum was not in any way similar to the Walker because the Savage was an engine which had been used to drive an organ. However in his oral evidence, Mr Rossington stated that the Walker engine was of a "basic mechanical design" as were the Tidman at Darling Harbour and the Savage steam engines at Robson's Museum.
I noted that Mr Clegg after speaking with Mrs Standfield, said that the Walker engine was "in occasional use in the 1950's", adding that the engine was useful in Standfield's operations in that it provided power during the power strikes. I was mindful that Mr Clegg understood from Mrs Standfield that it eventually became a makeshift factory heater.
I was satisfied from the evidence of all the above mentioned experts that the Walker engine was an object falling within the category of objects of Applied Science and Technology pursuant to item 4.4(b), in that it was an engine used as piece of workshop equipment in the Mouse Trap Factory run by Mr Standfield.
Mr Johnson also submitted, from the evidence of Messrs Clegg, Churchward and Rossington, that the Walker engine was an object relevant to the category of social history due to its involvement in "leisure and recreation, including all forms of sport, entertainment and tourism", specifically in Australian fairground amusement industry. The Respondent also submitted that:
"Its use as a merry-go-round engine also represented significant social progress for its time as it was an important part of the leisure industry in the late 19th and early 20th centuries." (Statement of Facts and Contention dated 12 October 2000 page 8)
In this respect, I was mindful that Mr Rossington stated that:
"The introduction of powered amusements that could cater for a growing Australian population during a depressed part of our history must rate as a significant development in Australia's largest and most identifiable area of cultural heritage, that of family relaxation and leisure." (T11/48)
Mr Rossington also considered the modification of roundabout engines and stated that with the introduction of new forms of power, the merry-go-rounds were converted to either petrol or electricity and this accounted for the reason why:
"… many ancient pieces of fairground architecture have survived to this day, albeit without their original motive power.
There is a good chance that the ride that this engine drove is still with us and could be reunited if the opportunity arose." (T11/48)I also noted that Mr Clegg, in addressing the relationship of the Walker engine to the technical advancement and social life, stated that:
"Even removed from its original ride, the engine is considered to be of high social and technical significance due to its association with a huge audience via the outdoor entertainment industry, and the introduction of steam power to that industry." (T12/59)
Mr Churchward commented as follows:
"If retained in Australia and restored to working order as part of a restored or reconstructed steam merry-go-round, this engine provides a rare opportunity to interpret the history of steam-powered amusement-rides in Australia and to yield a greater understanding of the role that these machines played in the development of Australia's recreational culture." (T15/69)
I was satisfied from the evidence of all the above mentioned experts that the Walker engine was a part of Australia's social history. There was no disagreement between the experts that the engine had been part of an amusement ride such as a merry-go-round or other fairground ride. I also accepted the evidence and submissions that in the days before other forms of mass media such as radio and television, outdoor amusements of the type the Walker engine would have driven, were part of Australia's social and leisure history dating back to the late nineteenth and early twentieth century.
Therefore, without concerning myself at this early stage with the precise way in which the engine could be considered movable cultural heritage pursuant to Parts 4 and 9 of Schedule 1 of the Regulations, I was satisfied that the Walker engine the subject of this claim, could be considered movable cultural heritage pursuant to section 7 of the Act, in that it fell within the criteria for section 7(1)(g) of the Act, being an object of scientific or technological interest, and section 7(1)(j) of the Act falling within one of the prescribed category of objects, namely, objects relating to social history pursuant to regulation 3(d) of the Regulations.
WHETHER THE WALKER ENGINE WAS A CLASS A OR CLASS B OBJECT PURSUANT TO SECTION 8(2) OF THE PROTECTION OF MOVABLE CULTURAL HERITAGE ACT 1986Section 8 of the Act enables the compilation of a list named the National Cultural Heritage Control List ("the Control List"), which outlines the "categories of objects that constitute the movable cultural heritage of Australia and are subject to export control." Specifically, section 8(2) of the Act provides for the further classification of the Control List:
"8 National Cultural Heritage Control List
(1) …
(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
(c)Class B objects, being objects that are not to be exported otherwise than in accordance with a permit or certificate."
I was mindful that in section 3 of the Act, Class A and B objects are defined as follows:
"Class A object means an object included in the class of Class A objects in the Control List.
Class B object means an object included in the class of Class B objects in the Control List."
In considering the Control List, I noted that objects were classified as either Class A or Class B depending on the category of movable cultural heritage within which they fell. In the instant case, I have accepted that the Walker engine could be considered movable cultural heritage as either an object of scientific or technological interest and/or an object relating to social history for its involvement in the leisure industry and Australia's social history. In this respect, I considered Part 4 – Objects of Applied Science and Technology – and Part 9 - Objects of Historical Significance (Social History) - of Schedule 1 of the Regulations.
I noted that item 4.4 of the Regulations provided that "Objects in this category [Applied Science and Technology] are Class B objects for the Act …" Similarly, item 9.3 of the Regulations states that "Objects in this category [Historical Significance] are Class B objects for the Act …"
Therefore, I was satisfied that the Walker engine, the subject of this claim, was a Class B object for the purposes of the legislation and that it could only be exported from Australia if a permit or certificate was granted pursuant to section 10 of the Act. I was mindful that if export took place in contravention of such a permit, penalties applied pursuant to section 9 of the Act.
WHETHER THE WALKER ENGINE FELL WITHIN PART 4 OF SCHEDULE 1 OF THE PROTECTION OF MOVABLE CULTURAL HERITAGE REGULATIONS 1987Part 4 of Schedule 1 of the Regulations outlines the considerations relevant to determining whether objects relation to Applied Science or Technology can be subject to a grant of a permit for export:
"Part 4 Objects of Applied Science or Technology
4.3This Part lists heritage objects of the category Objects of Applied Science or Technology.
4.4The objects in this category relate to human enterprise and activity, other than artistic activity, such as:
tools, weapons, implements and machines; and
any other kind of object produced by, or related to, an object of the kind mentioned in paragraph (a), including prototypes, models, patents and equipment.
4.3An object is in this category if it:
(a)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) is an object of the kind mentioned in item 4.4; and
(d)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)…
(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
…"
As discussed above, I was satisfied on a preliminary level that the Walker engine the subject of this claim could fall within the definition of movable cultural heritage of Australia pursuant to section 7(1)(g) of the Act, being an object of scientific or technological interest and an object of social history. Notwithstanding, I was mindful that in order to be categorised as an object under this Part, it was necessary to meet the requirements of item 4.3, namely that the object be of significance to Australia; that it was in use at least 30 years ago; that it be an object of the type mentioned in item 4.4; and that it was not represented in at least two public collections in Australia by an object of equivalent quality.
As a preliminary matter, I was mindful that the phrase "significance to Australia" is defined in regulation 2.1 of the Regulations:
"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."
I was mindful that the significance to Australia was addressed by Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources and Anor (1995) 55 FCR 516, who, following the reasoning of Stein J in Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155, stated in respect of the phrase "significant effect on the environment" that:
"If the word "significant" needs elaboration in this context, I use it in the sense of "an important or notable effect on the environment."
Stein J had held in Drummoyne Municipal Council (supra), that:
"… a significant effect must be an important or notable effect on the environment, as compared with an effect which is something less than that, that is, non-significant or non-notable."
In considering the issue of significance, I noted that the Applicant submitted that the Walker engine was not significant to Australia in that it was manufactured in the United Kingdom. Further the Applicant maintained that this lack of significance to Australia was reinforced by the fact that it was not modified for use in Australia, and was incomplete in that it had been detached from its amusement ride, of which nothing was known of its whereabouts.
I was mindful that Mr Macdonald had said that this Walker engine was not unusual and not very different from other such engines in various collections. He agreed it had been built for use in an amusement ride but said that it was technologically the same as all portable engines. Mr Macdonald said that there was no information available as to the type of device to which it had been fitted, and that:
"The object is only part of a whole object, the form and whereabouts of which is unknown and its removal from that context not only lessens its significance but it almost transfers it to the common category of "Portable Engines" of which there are a great number in existence in collections of all descriptions …" (Paragraph 5-a of Exhibit A5)
I then moved to consider the Walker engine in context of a scientific or technological item, namely, in respect of engineering objects and workshop equipment.
Mr Macdonald emphasised that the only known association with a notable Australian was that with the firm of "A.W. Standfield & Co" who had recognition for their endeavours in their improvisation of machines for the mechanised production of rat traps, mouse traps, clothes pegs, light fitting fixtures and brackets from 1933 to 2000. He noted that the association between the engine and the firm was only for approximately 15 years in the life of the firm.
Mr Rossington also commented on the use of the Walker engine in the Mouse Trap Factory owned by Mr Standfield:
"This steam engine after being disposed of as a profitable power source for an amusement rise found a useful life as an emergency lighting plant in the Sydney firm of "Supreme Mouse Traps" Mascot. Purchased in 1947 from a second hand machinery agent the boiler and engine powered the factory during the shortages of the late forties up until the late sixties when it was replaced." (T11/48)
I was also mindful that Mr Clegg stated that the Walker engine was:
"… known to have been removed from its roundabout c1945 and was eventually sold by a scrap metal dealer in the Alexandria/Erskineville/St Peters area of Sydney. What became of the roundabout remains unclear, but industry identities suggest that very few roundabouts were ever scrapped, as their operation was quite profitable, and re-powering was a common option for further use." (T12/58)
Of Standfield's acquisition of the Walker engine, Mr Clegg said that:
"… Standfield's business had attracted considerable attention over the years as the only manufacturer of mouse and rat traps in the Southern Hemisphere. The enterprise was started during the Depression when Standfield contrived a machine out of discarded engineering components and scrap material, and began producing traps, also from scrap materials, as a means of providing an income. The same machine is still in use, with total production of traps now exceeding 60 million items." (T12/58)
Mr Clegg also said that he spoke to Mrs Standfield who told him the Walker engine was "in occasional use in the 1950's", and added that the engine was useful in Standfield's operations in that it provided power during the power strikes. He understood from Mrs Standfield that it eventually became a makeshift factory heater, though he said that she could not specify an exact date.
Similarly, Mr Churchward acknowledged that the Walker engine was associated with the historic Mouse Trap Factory belonging to the Standfield family. In addition, he said that the Walker engine was significant to the development of Australia's engineering industry, and provided a context to the later steam merry-go-round engine built by Herbert Thomson, a significant innovator in the field.
I then directed my attention to the definition of "associate" in the Third Edition of the Macquarie Concise Dictionary ("the Macquarie Dictionary"), which indicated that by implication association meant "to join as a companion, partner, or ally".
I noted as follows from paragraph 18 of the Applicant's Statement of Facts and Contentions dated 3 October 2000 that the Applicant considered that the use of the engine by the Standfield company was peripheral in that "the engine did not drive the factory's machines directly, but via belting to a generator for power during external power rationing, which had itself largely finished by the time of installation."
I noted further from paragraph 19 of the Applicant's Statement of Facts and Contentions dated 3 October 2000:
"It cannot be assumed that the draughtspersons (sic) of the Act and Regulations contemplated that such an association, which has been shared by countless objects used in the factory, renders the object so important and notable as to warrant a prohibition on its exportation."
By way of contrast, I noted that when Mr Clegg was questioned about the Walker engine failing to be an integral part of the Mouse Trap Factory, his view was that being an integral part did not only refer to the final product.
I also considered the views of the Respondent from the oral submissions of Mr Johnson, which were essentially outlined in its Statement of Facts and Contentions dated 12 October 2000:
"? Item 4.3(a) – [The Walker engine] is of significance to Australia as it had been used in Australia as the engine for a merry-go-round and power source and represents significant technological or social progress for its time due to these uses and associations. … It was one of the earliest of such engines imported into Australia, and represented significant technological and social development of the late 19th and early 20th centuries….
?Item 4.3(b) – As an object not of Australian origin, it was in use in Australia at least 30 years ago;
?Item 4.3 (c)- It is an object of the kind mentioned in item 4.4 as it is an engineering object which includes an engine;
?Item 4.3(d) – Expert evidence from five experts concluded that the object is not represented in at least 2 public collections in Australia by an object of equivalent quality."
I assessed the evidence before me and preferred the submissions of the Respondent that the Walker engine was associated with a person, activity, event, place or business enterprise notable in history, namely its role of the piece of workshop equipment in the Mouse Trap Factory (regulation 2.1(a) of the Regulations).
I considered whether the engine represented significant technological or social progress for its time pursuant to regulation 2.1(c) of the Regulations, and accepted the evidence and submissions that it represented significant social progress for its time in that it was one of the early engines imported into Australia for amusement machine use which engaged the mass of the population. I also find that after consideration of its role in industry in the Mouse Trap Factory as described above, the Walker engine satisfied regulation 2.1(a) of the Regulations through its association with a business enterprise notable in history.
I was satisfied pursuant to Part 4 of Schedule 1 of the Regulations that, although the Walker engine was not of Australian origin, it is of significance to Australia and satisfied item 4.3(b)(iii) in that it was in use in Australia at least 30 years ago, that is in the late nineteenth and early twentieth century. Moreover, the Walker engine satisfied item 4.4 in that it was an engineering object used to drive machinery in the Mouse Trap factory run by Standfields, generating power and providing heating during a time of power shortages.
The next point to determine was whether, pursuant to item 4.3(d) of the Regulations, an object of equivalent quality was "not represented in at least 2 public collections in Australia by an object of equivalent quality."
The parties were not in agreement regarding the characterisation of a public collection, neither the meaning of "equivalent quality" in the present context.
Mr Condon submitted that it was necessary to consider the ordinary dictionary meaning of the words. In this respect, I noted that the Macquarie Dictionary defined "collect" and "equivalent" as follows:
"collect … 1. to gather together; assemble.
equivalent … 1. equal in value, measure, force, effect, significance, etc. 2. corresponding in position, function, etc …"
Mr Johnson then submitted the Respondent's view of the phrase "public collection", saying that it was not necessary for the Tribunal to consider the definition of "collect" as proposed by the Applicant, as the word "collection" was defined in the Macquarie Dictionary:
"collection … 3. a set of objects, specimens, writings, etc., gathered together …"
He also directed my attention to the definition of the word "public" as contained in the Second Edition of the Macquarie Concise Dictionary:
"public … maintained at the public expense, under public control, and open to the public generally: e.g. a public library …"
On the basis of the above definitions, Mr Johnson submitted that the phrase public collection for the purposes of the legislation referred to:
"… a government-owned or administered museum or gallery which is open to the public for the purposes of viewing the objects in the collection (e.g. the National Gallery of Australia). The relevant distinction is with a private collection (i.e. a collection owned by a private individual or organisation) which may or may not be open to the public."
Moreover, Mr Johnson went on to submit that a single object did not constitute a set or collection and I noted that in the case of the Walker engine, it was the only example of its type in Australia, and clearly it was not in any public collection. This was confirmed by the evidence of all the experts who provided evidence in this case.
In determining what constitutes a "public collection", I was mindful that the Act and the Regulations have remained silent, and have not provided a definition to assist decision-makers to ascertain what is a "public collection". Notwithstanding, the ordinary dictionary definition of the word "collection" specifies "a set …" and in this respect, I preferred the submissions of the Respondent that a collection must be comprised of more than one item, whatever its nature, to be correctly called a collection.
I was mindful also of written comments by Mr Churchward regarding collection policies of Australian State and National Museums. In summary, I noted that he expressed an opinion that there was a qualitative difference between the principal State and National Museum collections and other locally owned or managed collections. Collections in the former, he said, were generally permanent or long term and they had well defined collecting and deaccessioning policies describing the major focus of their collections and appropriate areas of significance.
I noted the evidence given by Messrs George Macdonald and Des Lang that the Walker engine was not represented in at least two public collections in Australia.
I then turned to consider the nature of a "public collection" and concurred with the submissions of the Respondent that a public collection is one that is "… maintained at the public expense, under public control, and open to the public generally: e.g. a public library …".
I preferred the Respondent's view of what was meant by a public collection within the terms of the legislation. Bearing this in mind, I could not accept the argument that there were equivalent engines on display elsewhere, and noted that although Mr Macdonald submitted in paragraph 5-f of Exhibit A5 that:
"If it is assumed that this object is part of a carousel then I have direct knowledge of eight complete steam carousels held:
The Power House Museum, Sydney; The Darling Harbour Authority; The ACT Government; Mr.Mark Money Tasmania; Mr.Craig Robson, Sydney; has two; Mr.F.Laurie. Sydney; Mr.H.Carter Sydney. Each of these with the exception of Mr.Laurie's, has a "Centre Engine" of the same general design and in far better condition than the one in question. Each, with the exception of Mr.Carter's is on permanent or occasional public exhibition".I accepted the evidence that the Walker engine subject of this claim was the only one of its type in Australia and that there was none in a public collection. I accepted the evidence that the Savage, Tidman and other engines in collections in Australia could not be considered pursuant to the legislation to be of equivalent quality
I thus concluded that the Walker engine came within the ambit of Part 4 noting in particular the tests for item 4.3, finding that it was significant for Australia because it had the nexus to industry by way of its use as a piece of workshop equipment in the Mouse Trap Factory run by Standfield. There was no dispute the engine was not of Australian origin and had clearly been in use at least 30 years ago. The contentious point of whether the engine is not represented in at least two public collections in Australia by an object of equivalent quality has been canvassed above and I was satisfied that there was no equivalent of such engine in any public collection in Australia. I moved then to consider Part 9 of Schedule 1 of the Regulations.
WHETHER THE WALKER ENGINE CAME WITHIN PART 9 OF SCHEDULE 1 OF THE PROTECTION OF MOVABLE CULTURAL HERITAGE REGULATIONS 1987Part 9 of Schedule 1 of the Regulations outlines the considerations relevant to determining whether objects of historical significance can be subject to a grant of a permit for export:
"Part 9 Objects of Historical Significance
9.1This Part lists heritage objects of the category Objects of Historical Significance.
9.2An object is in this category if it:
(a)is an object of the kind mentioned in item 9.3; and
(b)is associated with a person, activity, event, place or business enterprise, notable in Australian history; and
(c)is at least 30 years old; and
(d)is not represented in at least 2 public collections in Australia by an object of equivalent quality.
9.3Objects in this category are Class B Objects for the Act, and include:
(a)objects of heraldry; and
(b)objects relating to Australian military history; and
(c)objects relating to domestic life, including buildings, fixtures and decorations, equipment and furniture, costumes and textiles and personal effects; and
(d)objects relating to work life, including specialised trades and labour material, trade unionism, company activity and corporate identity, trade and commerce; and
(e)objects relating to courts and tribunals, law enforcement including the police, law-breakers, convicts and prison life; and
(f)objects relating to education; and
(g)objects relating to health and medicine; and
(h)objects relating to arts and crafts; and
(i)objects relating to leisure and recreation, including all forms of sport, entertainment and tourism; and
(j) objects relating to politics; and
(k) objects relating to exploration; and
(l) objects relating to migration; and
(m) objects relating to community activities; and
(n) objects relating to religion.
…"The evidence regarding its role in the development of Australia's social history and its role in industry as a power source in the Standfield Factory has been canvassed in the discussion earlier in these reasons. I am also mindful that the Walker engine was part of a public amusement ride, probably a type of merry-go-round which in the days when it operated early in the late nineteenth and early twentieth century would have been a major source of entertainment for the Australian people.
Therefore, as to item 9.3 of the Regulations, I have found that the Walker engine was an object relating to work life in its role in the Mouse Trap Factory ( item 9.3(d)), and in satisfaction of item 9.3(i), an object relating to leisure and recreation due to its use in powering a fairground amusement ride.
As I have found from the evidence of the experts whose evidence was before the Tribunal, that the Walker engine was on the balance of probabilities manufactured between 1890 and 1910, I was satisfied (as stated above), that the engine was at least 30 years old pursuant to item 9.2(c) of the Regulations
I have noted from the submissions of the Respondent and its Statement of Facts and Contentions dated 12 October 2000 as follows, and accepted its argument:
"? Item 9.2(a) – [The Walker engine] is an object of the kind mentioned in items 9.3 as it is equipment which relates to "domestic life", "work life" and/or "leisure". In terms of having been used in an amusement device and playing a part in the manufacture of mouse and rat traps;
·Item 9.2(b) – It is associated with an "activity" and "business enterprise" notable in Australian history in terms of its use in the late 19th and early 20th century as one of the earliest steam engines for a merry-go-round and its use in the factory which was the only manufacturer of mouse and rat traps in the southern hemisphere;
·Item 9.3(c) – it is clearly more than 30 years old;
?Item 9.3(d) – Expert evidence from five experts concluded that the object is not represented in at least 2 public collections in Australia by an object of equivalent quality."
I was mindful of the association I found to have existed between the Walker engine and Standfield as detailed above in respect of regulation 2.1(a) of the Regulations.
I noted that a carousel was available to the public from time to time at Darling Harbour. I am mindful that the Sydney Harbour Foreshore Authority Act 1998 under which Darling Harbour operates includes a power to operate cultural activities, but that the main focus of that body is for other purposes. Sydney Harbour Foreshore Authority has to the best of my knowledge, no accessions policy, an important criterion for establishing whether a collection is a "public collection". I therefore accepted the submission of the Respondent that the carousel at Darling Harbour was not in a public collection pursuant to the legislation.
In addition, and for the same reasons I have found in respect of item 4.3(d) of the Regulations above, I make the finding that the situation of the engine was such that it could not meet the tests in item 9.2(d) because it was not represented in at least two public collections in Australia by an object of equivalent quality. The evidence regarding this requirement has been canvassed above, and I was satisfied that there was no equivalent of such engine in any public collection in Australia.
Finally, I noted that Mr Churchward stated that:
"If retained in Australia and restored to working order as part of a restored or reconstructed steam merry-go-round, this engine provides a rare opportunity to interpret the history of steam-powered amusement-rides in Australia and to yield a greater understanding of the role that these machines played in the development of Australia's recreational culture." (T15/69)
Mr Clegg corroborated the evidence that roundabouts and fairground equipment such as the Walker engine, the subject of this claim, were:
"… a very major source of entertainment in days prior to radio, cinema, mass motor vehicle ownership, and more recently television, and still hold their appeal despite modern competition. As a result, amusement machines of this type are generally held to have a high social significance because of their exposure to and the provision of entertainment to hundreds of thousands if not millions of members of the public at all levels of society." (T12/57)
Mr Rossington also considered the modification of roundabout engines and stated that with the introduction of new forms of power, the merry-go-rounds were converted to either petrol or electricity and this accounted for the reason why:
"… many ancient pieces of fairground architecture have survived to this day, albeit without their original motive power.
There is a good chance that the ride that this engine drove is still with us and could be reunited if the opportunity arose." (T11/48)
In commenting on the reports of the other expert examiners, Mr Macdonald focused in particular on their statements regarding the possibility of the engine being reunited with its original ride, emphasising that in the thirty years the engine had been available to the "local enthusiast fraternity" nothing had emerged.
I took into account the above views regarding the significance of the Walker engine as an object of social history as it had provided for public leisure and entertainment given the context of its time and its value in the days before significant access by the public to radio, cinema and of course, television. I found its social value to be of great significance within the terms of the legislation.
WHETHER THE WALKER ENGINE IS OF SUCH IMPORTANCE TO AUSTRALIA THAT ITS LOSS WOULD SIGNIFICANTLY DIMINISH THE CULTURAL HERITAGE OF AUSTRALIAIn assessing cultural importance, I was mindful that the Minister for the Arts, Heritage and Environment in the Second Reading Speech of the Protection of Movable Cultural Heritage Bill, stated that:
"… the Government is not seeking to stop movement of all cultural material or even most of it. 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."
I was also mindful that the Tribunal in Truswell v Minister for Communications and the Arts (1996) 42 ALD 275 considered the meaning on the phrase "cultural heritage of Australia" as contained in section 10(6) and held that:
"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."
I noted that the Tribunal in Truswell (supra) held further that the narrow definition of "movable cultural heritage" in section 7(1) of the Act did not limit the definition of "cultural heritage" in section 10(6) of the Act, stating:
"That the description of movable cultural heritage focuses upon some aspects only of cultural heritage does not mean that a commensurately narrow meaning should be given to the words "cultural heritage" in s 10(6). Section 10(6) requires consideration of the effect of the loss of a particular object upon the cultural heritage of Australia. There are no words of limitation such as those in s 7(1), and this accords with the essence of the scheme established by the Act, namely that the loss of the particular object is to be assessed against the whole of Australia's cultural heritage. For these reasons, we considered that the words "cultural heritage" should be given their ordinary meaning in s 10(6)."
As to the degree to which the cultural heritage of Australia would be diminished if the Walker engine was exported from Australia, Mr Johnson submitted that the Tribunal should apply the principle enunciated in Truswell (supra) and Re J B Hawkins Antiques v Minister for Communications and the Arts (1995) 38 ALD 323. I was mindful and agreed with the statement in Truswell (supra), where the Court held that if an object was exported it must be regarded as permanently lost to Australia and as a result, it was not possible to consider whether the object may return in the future.
I was mindful that the Tribunal in Hawkins (supra) also considered the effect of exportation of an object on the cultural heritage of Australia and held that:
"The moment a heritage object leaves this country, then its value is potentially lost to Australians for all time. There is no way of requiring its return. On the other hand, so long as an object remains within this country, then it remains potentially available for public and heritage purposes even if it is not immediately realising its potential.
…
Accordingly, whilst the immediate or short term disposition of an object might sometimes be relevant to the issues raised under s 10(6), particularly if the object is being allowed to deteriorate, these considerations will rarely, if ever, prevail over matters relating to the long term potential of a significant heritage object."Mr Johnson submitted that I consider the decision of the Tribunal in Re Best v Minister for the Arts and Administrative Services (1994) 36 ALD 343 in which it was held that the association between the locomotive in question there and the sugar industry was significant to the cultural history of Australia, so much so that the Tribunal affirmed the decision not to grant an export permit. He also added that while the Tribunal considered the unanimous conclusion of the experts not to recommend an export permit was not binding, it held great weight in their decision making.
Mr Condon submitted that the relevant provisions of the Act had been considered in a number of cases. He argued that the case of Truswell (supra), dealt with the issue of significant diminution of Australia's cultural heritage. Mr Condon said that President Matthews (as she then was), Deputy President Forgie and Member Stein held that assessing whether the export of an object would significantly diminish Australia's cultural heritage followed the two stage process established in Re Best (supra) and Re Blake (supra). He directed the Tribunal's attention to paragraph 92 of the decision, in which it was stated that:
"First, one must look to whether the object under consideration is important to Australia for reasons referred to in s 7(1) of the Act. Secondly, one must ask whether, given that importance, the loss of the object would significantly diminish Australia's cultural heritage."
Mr Condon said that the test as elucidated in Re Best (supra) was set out at paragraph 76 of the decision of Matthews J:
"… the overriding question is whether the locomotive is of such importance to Australia … that its loss would significantly diminish the country's cultural heritage. In pursuing this question the focus must, as both parties agree, be an Australian one."
I further noted that in the Applicant's Statement of Facts and Contentions dated 3 October 2000, it was submitted that the case law has established the following:
"3.1 the legislation is not intended to stop movement of all cultural material or even most of it, but is concerned only to see that those objects the export of which would constitute an irreparable loss to this nation's cultural heritage remain in Australia (Re Blake and Minister for Communications and the Arts (1995) 38 ALD 333 at 341)
3.2In this context, the word "significant", where it appears in s.10(6)(b), requires an "important" or "notable" diminution of Australian culture (Re Truswell and Minister for Communication and the Arts (1996) 42 ALD 275 at 295)
3.3Whether or not the loss of the object would be a significant diminishment of the cultural heritage of Australia must be established to the decision-makers satisfaction (Re Best and Minister for the Arts and Administrative Services (1994) 36 ALD 343 at 354)."
Mr Condon emphasised that the intent of the legislation was not to preclude the export of objects, but rather to preclude the export of only those objects whose importance was so significant that the cultural heritage of Australia would be diminished if they were exported.
Mr Johnson argued that it would be impossible to establish that any object was so significant to Australia if it had to reach the whole of Australia to be the subject of Australia's cultural heritage. He submitted that in accordance with the authority in Tasmanian Conservation Trust (supra), Sackville J, in terms of considering whether there was significant impact on the environment, stated that:
"… this does not mean that the significance of a particular activity can only be assessed by reference to its impact upon the whole area in which some aspect of the activity is to take place. Despite the broad definition of "environment" in the Environment Protection Act … site specific impacts can be significant, depending on the circumstances. The impact of logging in particular forests can have a significant impact on the environment, even though there may be other forests nearby which remain untouched."
Mr Johnson submitted that in deciding whether the loss of the engine would be detrimental to the cultural heritage of Australia, it was also appropriate to consider the rarity of the item, although only in terms of the extent or nexus with Australia. Mr Johnson directed my attention to Re Best (supra) in which President Mathews as she then was, held:
"… rarity is clearly one of the relevant considerations under s 10(6)(b). It is not, as Mr Molesworth rightly submits, simply a matter of arithmetic, of saying that if you deduct one from three then two will still remain. But the rarity of an object will always be relevant to the question of whether its loss would significantly diminish the cultural heritage of the country. Indeed there may well be situations in which the question of rarity will be determinative of this issue."
I was mindful that rarity was also considered by the Tribunal in Truswell (supra), which held at paragraph 93 that:
"Other propositions established by Best were that rarity of the object is always relevant and may be a determinative factor. However, rarity is not a matter of mere arithmetic. It is also relevant to ask whether removal from the country would irrevocably separate the object from its cultural and historic associations."
I have noted the use of the word "irreparable" in relation to the loss through export of a Category B item. I was mindful that "irreparable" was used in Blake (supra), and respectfully note that the Act at section 10(6)(b) refers to "significantly diminish" which would require a notable or important diminution of Australian culture, but not an "irreparable" one (Re Truswell (supra)).
In reaching the correct and preferable decision, I have considered the oral and written evidence before me together with the submissions of the parties. In this respect, I noted the evidence of the experts, that there is only one Walker engine remaining in Australia and that other similar engines mentioned by Mr Macdonald in his evidence cannot be held to be equivalent. I was satisfied that this engine was not only used to power a merry-go-round or similar amusement machine, but also performed in a later role in industry at the Mouse Trap Factory.
I find from the evidence that the Walker engine is an object of importance to Australia from a scientific and technological point of view as it represents technology of the late nineteenth and early twentieth century developed to power an amusement ride. I accept it would be possible, according to the expert opinion, if further research were carried out, that the Walker engine could be reunited with its ride.
I also accepted that the item was of historical/social significance in that it would have been used for the leisure time amusement of the people of Australia in the days before the development of radio or television and other types of entertainment. It may indeed have been one of the first steam powered amusement rides in Australia which would add to its significance (Mr Clegg). Its further nexus with New South Wales was its use by Standfield in his Mouse Trap Factory where it was used as a power source. Mr Clegg's evidence which I accepted was that it was used to provide standby power for the Standfield factory and was invaluable during the coal strikes and power shortages in the late 1940s. The Mouse Trap Factory can be considered a notable Australian enterprise because of the distinctive appliances, which were widely sold throughout Australia for many decades.
I accepted that there were no engines of equivalent quality in public collections in Australia. There are other steam powered carousels such as the steam powered carousel built by Herbert Thomson in 1914 and the carousel at Darling Harbour in Sydney. I did not agree that either engine was in a public collection for the purposes of the legislation. I noted and accepted the evidence of Mr Lang and Mr George Macdonald, which confirmed that there were not two such engines represented in public collections in Australia.
WHETHER THE REFUSAL TO GRANT A PERMIT FOR EXPORT PURSUANT TO SECTION 10 OF THE PROTECTION OF MOVABLE CULTURAL HERITAGE ACT 1986 WAS CORRECT IN THE CIRCUMSTANCESSection 10 of the Act outlines the procedure regarding the grant of a permit:
"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 approved form, or if no form is prescribed, the form approved by the Minister.
(3)On receipt of an application, the Minister shall refer 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."
I noted that there was no dispute between the parties that Mr Jacklin applied on 2 August 1999 to the Minister for an export permit for a Class B object in the appropriate form, which was reproduced at T3 (sections 10(1) and (2) of the Act).
I was also satisfied that upon receipt of Mr Jacklin's application, the Minister referred it to the National Cultural Heritage Committee ("the Committee") established pursuant to section 15 of the Act and that the Committee referred the matter to Messrs Rossington, Clegg, Churchward, Lang, and George Macdonald in their capacity as registered expert examiners (section 10(3) of the Act).
I noted that the expert examiners provided reports on the Walker engine as follows:
· Mr Rossington dated 28 November 1999 (T11);
· Mr Clegg dated 29 November 1999 (T12);
· Mr Churchward dated 10 December 1999 (T15);
· Mr Lang dated 8 December 1999 (T14);
· Mr George Macdonald 2 December 1999 (T13).
The Committee, having reviewed the reports which unanimously recommended against the granting of a permit, made non-binding recommendations to the Minister (section 10(4) of the Act), who then made a decision and notified Mr Jacklin that a permit would not be granted (T17).
I was satisfied that the correct procedure had been followed in the lodgment and assessment of Mr Jacklin's application. I was mindful that as Mr Jacklin applied to the Tribunal for review of the decision of the Minister to refuse the grant of a permit for the export of the Walker engine pursuant to section 10(5)(b) of the Act on 4 February 2000 (section 10(7) of the Act), I was required to place myself in the shoes of the decision-maker and consider the application for a permit de novo. I was also mindful of being bound by the legislation, particularly section 10(6) of the Act which outlines the matters that the Minister and the Committee (and thus, the Tribunal) must have regard to in reaching their decision, namely: the reasons referred to in subsection 7(1) of the Act that are relevant to the object to which the application relates; and whether 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.
In considering the matters referred to in section 7(1) of the Act, I was required to consider the applicable provisions, in this case, regarding objects of scientific or technological interest and objects of social history contained Part 4 and Part 9 of the Regulations. As outlined above, I was satisfied that the Walker engine the subject of this claim, fell within the requirements of both Parts 4 and 9 of Schedule 1 of the Regulations in that:
Part 4 - Objects of Scientific or Technological Interest·The Walker engine was significant to Australia in that it was a piece of workshop equipment in the Mouse Trap Factory run by Standfields, providing power for machinery during the power strikes before becoming a factory heater pursuant to item 4.4 (b)(i);
·The Walker engine, having been imported to Australia in between 1980 and 1911, was not of Australian origin, but was in use in Australia at least 30 years ago pursuant to item 4.3(b)(iii);
The Walker engine fell within the category of Class B objects in item 4.4 in that it could be classed as a piece of workshop machinery pursuant to items 4.3 (c) and 4.4;
·There is only one engine of the Walker engines of its type which powers an amusement ride in existence in Australia, and it is not in a public collection. Thus there is no engine of equivalent quality to the Walker engine in a public collection in Australia.
Part 9 - Objects of Social History
·The Walker engine as a result of its use in the leisure and entertainment industry was an object related to "leisure and recreation" and the development of leisure and amusement in the late nineteenth and early twentieth centuries pursuant to items 9.2(a) and 9.3(i), and later served in "work life" in the Mouse Trap Factory pursuant to items 9.2(a) and 9.3(d);
The Walker engine was associated with a "business enterprise", namely, the operations of Standfield, who manufactured of mouse and rat traps and was the only manufacturer of mouse and rat traps and other related items for some decades pursuant to item 9.2(b);
The Walker engine was on the balance of probabilities manufactured between 1890 and 1910, and is clearly well in excess of 30 years old pursuant to item 9.2(c);
The Walker engine is the only remaining engine of its type, and may have been one of the first imported to power merry-go-rounds or similar amusement rides in the late nineteenth and early twentieth centuries, and was on the balance of probabilities a model for Herbert Thomson who build the first Australian amusement rides. Therefore, for the same reasons given in respect of item 4.3(d), there exists no engine of equivalent quality to the Walker engine in a public collection in Australia pursuant to item 9.2(d).
Having considered all of the evidence before me regarding the application by Mr Jacklin for a permit to export the Walker engine to the United Kingdom, I was satisfied that the decision by the Minister to refuse such a permit was the correct and preferable decision because for the reasons outlined above, its export would significantly diminish the cultural heritage of Australia. Its importance was that it was one of the earliest examples of a steam driven engine which powered an amusement ride in the late nineteenth or early twentieth centuries contributing to the leisure activities of the people of Australia, and thus played a significant role in the social history of this country. Its loss through export would therefore significantly diminish the cultural heritage of Australia.
Later post World War II, the engine was from 1945, involved in powering machinery in the Mouse Trap Factory, a significant manufacturer of the time, and the only manufacturer of mouse and rat traps and other related items for some decades. It thus benefited Australia in a technological way through its association with a person and a business enterprise notable in Australian history. Its loss through export would significantly diminish the cultural heritage of Australia.
Therefore, I was satisfied that the Walker engine is of such importance to Australia that its export would significantly diminish the cultural heritage of Australia, and accordingly I affirm the decision of the Minister not to issue a permit to export the object pursuant to section 10(5) of the Act.
DECISIONThe Administrative Appeals Tribunal affirms the decision of the Respondent, Minister for the Arts and the Centenary of Federation, dated 4 February 2000 in which he refused the issue of an export permit to the Applicant, Mr Storm Seymour Jacklin, for the Walker Mailer Steam Engine pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986.
I certify that the 189 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 13 and 14 February 2001
Date of Decision 17 May 2001
Counsel for the Applicant Mr M Condon
Solicitor for the Applicant Mr M Gemmell
Counsel for the Respondent Mr J Johnson
Solicitor for the Respondent Ms S Brown
Key Legal Topics
Areas of Law
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Cultural Heritage Law
Legal Concepts
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Cultural Heritage Significance
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Public Interest
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Judicial Review
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