Jacklin and Minister for the Arts and the Centenary of Federation
[2001] AATA 416
•17 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 416
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2000/344
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 Ruston Proctor Colonial SHA Class Steam Engine Number 42028 pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Export of Cultural Heritage - Ruston Proctor Colonial SHA Class Steam Traction Engine No.42028 - 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 7, 8(2), 9 and 10
Protection of Movable Cultural Heritage Regulations 1987 regs 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), to refuse to grant, pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986, an export permit for the Ruston Proctor Colonial SHA Class Steam Engine Number 42028 ("the Ruston Proctor engine") to Mr Storm Jacklin, the Applicant in these proceedings.
In refusing to issue 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.Although the engine was produced in the United Kingdom, it was constructed specifically for colonial conditions and to meet a market situation existing in Australia. This fact sets it aside from other engines of the same make or standard British design.
2.This is the best known of only a few examples of Ruston "Colonial" traction engines known in Australia, with no known examples present in any public collections.
3.The expert assessments were unanimous in finding that the export of this item would significantly diminish Australia's cultural heritage and in favour of retaining the object within Australia." (T2/10)
I note here for the sake of completeness that this matter was linked, and heard simultaneously with the review of the decision in Matter N2000/345 in which the issue of an export permit for the Walker Mailer Steam Engine ("the Walker engine"), had been refused by the Minister to Mr Jacklin. I have not seen either engine and although I could have requested this, I was satisfied that I had illustrations and technical descriptions from people qualified to discuss the technological qualities of both engines. There were also 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 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 Ruston Proctor Colonial SHA Class Steam Engine Number 42028 was of such significance to Australia that allowing a permit for its export pursuant to section 10 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 Ruston Proctor Colonial SHA Class Steam Engine Number 42028 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 Ruston Proctor Steam Engine SHA Class Number 42028 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 Ruston Proctor Colonial SHA Class Steam Engine Number 42028 came within the requirements of Part 4 of the Protection of Movable Cultural Heritage Regulations 1987;
·Whether the Ruston Proctor Colonial SHA Class Steam Engine Number 42028 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 prescribed 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."
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:
(a)tools, weapons, implements and machines; and
(b)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) any agricultural object, including:
(i)an object used for agricultural production; and
(ii)an object used for processing agricultural products; and
(iii)an object relating to an industry producing products for use in agriculture; and
(iv)any tool, implement or equipment used or intended for use in agriculture or farming life; and
(v)scientific equipment relating to agricultural research; and
(vi)any other thing related to agriculture; and
(b)any engineering object, including:
(i)a manufactured object relating to any branch of engineering, including any object that is a machine or hand tool, engine or workshop equipment, a control system or control mechanism, or an invention prototype or related model or patent object; and
…"
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 follows 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 it was not in dispute that the Ruston Proctor engine was manufactured in the United Kingdom by Ruston Proctor & Co ("Ruston Proctor"), one of the largest builders of steam powered agricultural machinery, and exported to Australia in approximately 1911 or 1912. Mr Churchward's evidence was that the engine left the Ruston Proctor works in England on 22 July 1911 bound for Australia. There was some disagreement, however, as to the number of Ruston Proctor "Colonial SHA Class" steam engines imported into Australia by H.V. McKay and Co ("H.V. McKay"). Mr Clegg claimed that the engine subject of this claim was the last of seven engines imported into Australia (T11/51). Both Mr Macdonald (Exhibit A6) and Mr Churchward (T14/66 and 69) said that it was one of five engines imported into Australia. For the purposes of this decision, I accepted that the Ruston Proctor engine the subject of this claim, was one of between five or seven Colonial SHA Class steam engines imported into Australia by H.V. McKay. I was also mindful that H.V. McKay was known to be one of the largest manufacturers of agricultural machinery in Australia, and was responsible for introducing direct ploughing techniques and machinery suited to direct ploughing.
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 by Wheatcroft and Sons Limited of Leicestershire, England to apply for a permit to export the Ruston Proctor engine Number 42028 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 Ruston Proctor engine; Mr Jacklin submitted that the objects 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 Ruston Proctor engine at approximately $8,000., a substantially lower figure than any of the expert examiners.
I also noted the Applicant's comments in his letter dated 17 December 1999 to the Department of Communication Information and the Arts where he requested that anonymity should be extended to the Applicant for the 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." (T16/72)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.
I further noted that upon receipt of assessment from the expert examiners, Mr Jacklin expressed concerns about the "… emotive comments and the obvious collusion in the reports. There has been an attempt to imply importance by extrapolation and association at the expense of hard facts." (T16/73)
In respect of the Ruston Proctor engine the subject of this claim, Mr Jacklin stated that it was "far from unique in this country. There being many examples of American and UK machines in private and public collections". (T2/24)
EVIDENCE OF MR BRUCE MACDONALD - FIELD EXPERT AND REGISTERED EXPERT EXAMINERMr Macdonald, in his statement of 5 October 2000, (Exhibit A4), 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 at Exhibit A4. He had two further reports before the Tribunal as Exhibits A5 and A6, of which those parts relating to the Walker engine are discussed in the decision and reasons for decisions in the linked Matter N2000/345.
Mr Macdonald advised that he had examined the Ruston Proctor, the subject of this claim on 7 July 2000, at which time he observed that:
"This Object is largely complete and in fair order, having been in the "preservation" field through various owners since the writer first viewed it in the 1960's … The three other Ruston, Proctor engines of this type known to me … are reportedly not in as good general condition but they are and have been available for restoration for some considerable time in the hands of various well intentioned enthusiasts." (Exhibit A4)
Mr Macdonald said that the engine was "attributed to the firm of Ruston Proctor & Co Ltd of Lincoln England." He described the special features of the Ruston Proctor engine both in his written and oral evidence, and referred to the numerals "42028" on the engine as the manufacturer's serial number.
When asked what the significance of the Ruston Proctor engine was to Australia, Mr Macdonald replied that it participated in the transitional period between horse drawn ploughs and the application of steam in agriculture, which took place from the 1870's onwards. He said that it came into the picture when the use of steam was already quite advanced. Mr Macdonald also said that the Ruston Proctor engine had not been more suitable than other engines of equivalent size and horsepower.
I noted that Mr Macdonald, in respect of the Ruston Proctor, stated that:
"Its purpose would have been as a prime mover for agricultural machinery in the rural environment. This could be achieved by the use of a leather belt from the flywheel. It could also be used as a locomotive engine to haul wheeled equipment along roads from place to place or, as suggested, to pull cultivating devices over paddocks as a procedural improvement on the use of horses." (Exhibit A4)
In commenting on the direct traction ploughing referred to in Mr Churchward's report, Mr Macdonald said it involved a plough being attached directly behind the engine, and pulled along by the engine. Mr Macdonald also said that although direct traction ploughing was an innovation that was probably considered worthwhile at the time, it did have problems. A horse drawn plough he said, only required one person to drive the horse, whereas for an engine, additional labour was needed to drive the engine and to chop the wood.
I noted that in his report at Exhibit A4, Mr Macdonald said further that:
"[Direct Ploughing] … was successful in the short period of use prior to the development of the internal combustion tractor and is recorded photographically in the Murray and Riverina areas. This use was not confined to Ruston engines as any traction engine could be used for this purpose. Photographic evidence exists of a McLaren traction engine performing this work. In fact McLarens marketed a class of engine specifically for direct ploughing."
In cross-examination, Mr Macdonald agreed that H.V. McKay was a manufacturer of agricultural machinery, and played an important part in Australian agricultural history, though he added, not exclusively. Mr Macdonald said further that he could not comment on whether H.V. McKay was the largest manufacturer of agricultural machinery in Australia, as it operated mainly interstate, but acknowledged that H.V. McKay did use Ruston Proctor engines to promote ploughing by steam.
Mr Macdonald also went on to say that the Ruston Proctor had no other association with H.V. McKay other than that the engine was imported by the company, as agent for Ruston Proctor in Victoria.
Mr Macdonald said that generally, the different so-called Colonial engines were fairly similar in their technical attributes, although visually there may have been differences. In this respect, I noted Mr Macdonald's comments in relation to the Ruston Proctor engine, the subject of this claim, at paragraph 5-a (1) and 5-e (5):
"This object is an example of completely overseas technology which was adapted to suit local conditions outside of Britain … It has no other local modifications which could set it apart for adaptive or innovative notice or recognition.
…
The Object does not incorporate any features associated with a uniquely Australian usage. The features described were incorporated in the designs offered by the English and USA manufacturers for world wide market …" (Exhibit A4)I noted further that Mr Macdonald considered the differences between the Colonial SHA Class steam engines and other standard engines and recorded that the Ruston Proctor had:
"(a) Smaller flywheel, having a clutch mechanism.
(b) "Lighter" construction in both material and design.
Functionally both features were minor and of little significance ." (Exhibit A6)When questioned about his comments in paragraph 4-e of Exhibit A4, where he referred to engines for export from the United Kingdom to distant lands such as Australia and South America, Mr Macdonald emphasised that the use of wood fuel was universal in all countries. However, he did accept that coal could be used, and said further that in South America, straw was predominantly used, and that the engines were therefore modified to suit that fuel. Mr Macdonald said that modifications to the engine for straw burning included changes to the firebox and boiler. According to Mr Macdonald, straw was not used in the Ruston Proctor engines. I noted that this differed from the evidence of Mr Clegg, who said that in South Africa and South America straw was used in the modified Ruston Proctor engines.
I noted that Mr Macdonald also considered the propositions put forward by the other examiners in which he commented that:
"Mr Clegg's statement under Background, paragraph 8 states that the object and its type was made specifically for Australian conditions. This is not accurate as their initial export was to South America. Neither does it incorporate any unique design or technical feature which sets it apart from another of the same class or other so called "Colonial" engine. Similarly, under "Subject of Application", and "Discussion", the association was with the firm of "H.V.Mackay & Co." who, at the time held the agency for the sale and distribution of the products of Messrs. Ruston Proctor & Co. Like any other agency as observed today, their function was to promote and service the products and obtain customer satisfaction leading to further business for which they received monetary commission. They also held agency agreements with other manufacturers of agricultural implements. It was a business arrangement and it was not likely that H.V.Mackay as a person was involved with this engine. His forte and interest was in the development of agricultural machines. Finally, under "Conclusions", he claims that there is not another British built Colonial Traction engine in a public institution. There is some doubt as to the definition of the section of the Act as regards a public institution or exhibition. However, there is an example of the Buffalo Pitts product in the Power House collection and other collections exhibiting the technology on which the English engines were based. There are also other "light" type USA engines exhibited in various exhibitions in most States and most in equal or better condition to the engine being discussed …
The above remarks would also apply to statements by Messrs Rossington and Lang on their almost identical contentions." (Exhibit A4)Mr Macdonald also commented on the various photographs, which were before the Tribunal as Exhibits A2 and A7. Referring to the photographs, he compared the Buffalo-Pitts engines made in the United States, which were of lighter construction than the Ruston Proctor. He also commented on comparisons between the Garrett engine depicted at Photograph A in Exhibit A2 and the Ruston Proctor which had "English wheels."
Mr Macdonald indicated that the Colonial models were lighter than the standard engines and that this was used as a selling feature. He added that there were many other engines (of the non-Colonial type) which were single speed/cylinder. Generally he did not consider that there was anything noteworthy about the place of the Ruston Proctor engine that was not able to be filled by another engine. Nor did Mr Macdonald consider that the engine incorporated any features associated uniquely with Australian usage. He gave evidence regarding his understanding of other similar engines in private and public collections both in his written and oral evidence. I was mindful that Mr Macdonald had at paragraph 4-a of his report at Exhibit A4 mistakenly characterised the engine as a two cylinder steam engine when indeed it was agreed that the correct designation was one cylinder.
After considering all of the evidence before him in respect of the Ruston Proctor engine, Mr Macdonald concluded that:
"… it is my opinion that this Object should be allowed to be exported because if the preservation and restoration of it is considered an important issue, the opportunity is greater in the U.K. than here given the comparative window of opportunity and the number of engines, estimated at over 1,000, of all descriptions awaiting attention here." (Exhibit A4)
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.
Mr Churchward's reports were before the Tribunal at T14 (Expert Examiner's Assessment Form in Matter N2000/344), and comments in response to Mr Macdonald's report on the Ruston Proctor engine dated 8 February 2001 at Exhibit R9. I noted that Mr Churchward's reports were prepared as a result of viewing a written description, one colour photograph and reports of the Ruston Proctor engine, but that he had not physically examined it. His comments in respect of Ruston Proctor engines follow:
"Ruston & Proctor's "colonial" traction engine designs were not a resounding success, in part because they could still not compete in price with American manufacturers, but also because they arrived on the scene a little too late, just as internal combustion engine powered tractors were beginning to take off as the preferred form of agricultural power source. H.V. McKay & Co took a special interest in the development of the SHA model, taking five 7 h.p. engines as part of their order no.7 from Ruston & Proctor in 1911. McKays made a special effort to promote the sale of the SHA class engines for direct-traction ploughing, a task which English traction engines had never been well suited for because of their excessive weight … Whilst it appears that the venture was not a complete success, with later McKay orders returning to the conventional Ruston & Proctor traction engine models, it needs to be seen in the context of the many other innovations that McKay were initiating during this period, including the improved header harvester, stump-jump disc ploughs, petrol engines and their own internal combustion engine tractors, introduced in 1916." (T14/69)
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".
Of the Ruston Proctor engine the subject of this claim, Mr Churchward said that it appeared to be in remarkably good condition, and that it exhibited signs of having had restoration work carried out on it in the last two decades. Mr Churchward valued the engine at between $20,000. and $60,000. He said further that as it was stored under cover, it would be preserved in its present condition for many decades before any significant deterioration would become obvious.
When questioned about the photograph at the top right of Exhibit A12, Mr Churchward said that it was from a manufacturer's catalogue and depicted a Ruston Proctor engine pulling four sets of H.V. McKay's stump jump ploughs. He acknowledged that H.V. McKay had been one of Australia best known agricultural innovators, who, from his works at Sunshine, established 1906, was the largest manufacturer and exporter of agricultural machinery in Australia. He said that the Ruston Proctor Colonial engine was involved in opening up country for farming, and it was in this role that it excelled.
I noted that in his examiner's report, Mr Churchward stated that the Ruston Proctor:
"… provides a rare case study of technology transfer between America and Britain, and the role that the local firm H.V. McKay played in promoting the wider application of mechanised agriculture in Australia. McKay recognised the potential of this innovative design to be applied to direct ploughing, with implements towed directly behind the engine, a task which other more conventional English traction engines had never been well suited to.
… What is important … is that this engine was one of a group of five identical engines imported by H.V. McKay as a single order in 1911, in an attempt to establish a new type of traction engine in the Australian market. McKays played a leading role in the distribution and sale of Ruston & Proctor traction engines in Australia during the period 1909 – 1914." (T14/66)
Mr Churchward agreed that the Ruston Proctor engine was not designed specifically for Australian conditions but rather for colonial conditions generally. He also said that it had been built to compete with the United States designed engines of the early twentieth century.
Mr Churchward informed the Tribunal of the significance of the design of the Ruston Proctor engine. He said that:
"… it contains a number of innovative features rarely seen on British-built traction engines such as lighter weight more open spoked wheels, a smaller diameter flywheel fitted with rim-type friction clutch, a rear entry tender with separate left and right-hand wood baskets, a simpler single-speed drive train and the advanced type Pickering that was particularly suited to belt work … Whilst the engine was built in England it is of a particular significance to the Australian context, because this design was developed by Ruston, Proctor & Co. specifically for sale in Australia and other colonial markets." (T14/67)
When cross-examined about whether steam traction engines of this vintage should remain in Australia, Mr Churchward replied that only the ones of significance should remain. He added that when assessing significance, diversity of brands should be taken into account. Mr Churchward also added that he felt it was appropriate to maintain sufficient diversity to represent the different uses of steam engines in Australia. Further to his oral evidence, I noted that Mr Churchward stated in his report at Exhibit R9 that:
"Whilst there may be other traction engines in Australia that demonstrate similar design features to the Ruston Proctor SHA class, the only examples that are directly comparable are those of the same brand and model. If the innovative design features that first appeared on American traction engines are significant, then it is of importance in maintaining Australia's cultural heritage that sufficient examples of each brand that demonstrated these features should be preserved in Australia, in order for the impact of technological changes to be fully interpreted."
When asked whether he was aware of any other objects of an equivalent quality, Mr Churchward said that according to his interpretation, the words "adequate representation" required a consideration of the historical and cultural significance of the object as well as its condition and completeness. Mr Churchward also said that:
"About 35 Ruston, Proctor & Co. built steam traction engines survive in Australia today, ranging in age from about 1900 to 1913. What is significant however, is that this is one of only five examples of the technologically innovative SHA class "colonial" traction engine, which were introduced into the Australian market specifically (sic) compete with American built traction engines and foster the use of steam traction engines for direct-ploughing.
There are no Ruston, Proctor & Co traction engines currently held in State or Commonwealth public museum collections." (T14/67)
He also said that:
"The use of the term "Colonial" type engine is a useful way to refer to this particular type of traction engine, but this should not be used to imply that all traction engines referred to or market (sic) under the title "Colonial Engine" were necessarily either similar or "of equivalent quality". (Exhibit R9)
In recommending that an export licence not be granted in respect of the Ruston Proctor engine the subject of this claim, Mr Churchward said that:
"The examiner believes that the export of this object would potentially result in the loss of the best of only five surviving examples of this important type and make of steam traction engine in Australia. There are no examples of Ruston & Proctor traction engines in any Commonwealth or State heritage collections and no examples of the particular model, the SHA class "colonial" type engine, currently on public display anywhere in Australia.
As with many industrial artefacts the significance of this engine is best interpreted within the context of the landscape and the environment within which it spent its working life. (T14/68)
EVIDENCE OF MR GRAHAM CLEGG – CONSERVATOR MUSEUM OF APPLIED ARTS AND SCIENCES AND REGISTERED EXPERT EXAMINER
Mr Clegg, whose report was before the Tribunal at T11 and whose letter to the Department of Communication Information and the Arts dated 9 October 2000 was 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. Mr Clegg said that he had been interested in Ruston Proctor engines since the 1970s. 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 said that he had viewed the Ruston Proctor engine, the subject of this application in approximately 1985. He corroborated the evidence of others that it was housed in a structure with a roof but no enclosed walls and given the area in which it was located, having approximately 25 inches of rain per annum, the engine's chances for survival were quite good. Mr Clegg did say, however, that the engine would eventually deteriorate due to being subject to the rise and fall of temperature and humidity.
Mr Clegg estimated (Exhibit A13) that there were 16 Ruston Proctor engines in Australia, of which four were Colonial SHA Class engines. He added that of the four Colonial SHA Class steam engines that have survived, the Ruston Proctor engine number 42028, the subject of this claim was the most complete and original example in Australia.
In his examiner's report dated 8 November 1999, Mr Clegg estimated that the value of the Ruston Proctor engine was in the vicinity of $20,000. to $40,000. depending on further examination of the condition of all of the components.
Mr Clegg said that throughout his research and investigations, he had not come across any evidence of the Ruston Proctor Colonial SHA Class steam engine being exported to anywhere other than Australia from the United Kingdom, although he said that this was not conclusive. He said that the engines exported to South America were different in that they were chiefly straw burning and were modified accordingly, having mechanical drivers to feed straw into the engine.
He said that the significance of this Ruston Proctor engine to the cultural heritage to Australia was that it was produced for colonial conditions in response to a challenge from engine manufacturers in the United States. He said that notwithstanding, the colonial engines developed by Ruston Proctor and the other British manufacturers were not able to successfully compete with the engines manufactured by the United States:
"… the fact that British makers were prepared to design and manufacture especially for Australian conditions is in the writer's opinion, of considerable significance." (T11/51)
I noted Mr Clegg's comments that British manufacturers in response to the competition from the United States manufacturers, experimented with "… special colonial models …" with the effect that the machines "… were closer to the American designs than to the British accepted norms". Mr Clegg said further that:
"The Ruston Proctor colonial engine incorporated many features designed to reduce weight and complication, and hence cost of production.
Two speed gearing was replaced by a single road speed, and wheels and transmission were lightened. Components were not highly finished as per British practice, and American features such as a flywheel clutch were incorporated. The normal tender was replaced by a driving platform incorporating racks for wood fuel, or could also be adapted to straw burning apparatus where that fuel was plentiful." (T11/51)Nevertheless, Mr Clegg said that there were significant differences between the Ruston Proctor and American engines.
Mr Clegg also told the Tribunal that H.V. McKay at Sunshine was the largest producer of agricultural machinery in the Southern Hemisphere. He had been the agent for Ruston Proctor and involved with promotion of engines for ploughing. Mr Clegg said further that:
"McKay is credited with the development of a wide range of plant specially suited to Australian conditions, and, holding the local Ruston Proctor agency, was in a position to know the requirements of farmers in the area of steam plant. He is known to have used traction engines to promote and experiment with direct traction ploughing, and photographs exist of Ruston Proctor engines, including the Colonial SHA type, engaged in this work." (T11/52)
I noted that in conclusion, Mr Clegg recommended that an export licence be withheld in respect of the Ruston Proctor for the following reasons:
"a)The machine incorporates technical detail which sets it apart from other engines of the same make, or from the standard British design exported to this country. It was designed and manufactured entirely for colonial conditions and to meet a market situation existing in Australia.
b)It has provenance to an important Australian enterprise via the McKay agency, and is of a type used in that firm's experimentation and promotion of local farming methods.
c)It is at present the best surviving known example in terms of originality and completeness of fabric, which enhances its importance as a research object.
d)No British colonial traction engine of any make is presently represented in any public institution in Australia." (T11/52)
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 gained his knowledge about the Ruston Proctor engine from speaking to people who worked on the engines and those who were involved in its operation. He added that he had not seen the engine subject of this claim.
Mr Rossington, in his expert examiners report dated 28 November 1999 at T12, said that the Ruston Proctor engine number 42028 was manufactured on 4 March 1912 and exported to Australia that same year. He said that the engine in question was "complete and in running condition" and estimated its value in the vicinity of between $28,000. and $40,000.
When asked whether Ruston Proctor Colonial SHA Class steam engines were exported to countries other than Australia, Mr Rossington replied that to his knowledge some may have gone to Eastern European countries.
In his oral evidence, Mr Rossington compared other engines, both from the UK and the USA available at the time, with the Ruston Proctor. He discussed the Marshall engine, the Garrett, Fowler, Buffalo Pitts and others. When asked about features that would appeal to the Australian market, Mr Rossington nominated access to the rear, high clearance, single cylinder design and extra water capacity.
Mr Rossington did not agree that the Garrett engine and Ruston Proctor were similar, saying that the Garrett engine was built along the lines of standard English traction engines in that it had coal burning in the firebox, compound engine construction and the lack of a flywheel in the clutch. He also said that the Garrett engine was a much stronger construction than the Ruston Proctor and the only reason why it was called a colonial engine was so that it would appeal to the Australian market.
Mr Rossington also went on to say that the Fowler engines were different from all other machines because Fowler aimed to simplify the engine, removing all unnecessary parts. He said further that its easier access from the rear, high clearance, lack of a clutch in the flywheel and gearing along similar lines to the standard Fowler Engine set it apart from other Colonial engines including the Ruston Proctor.
Mr Rossington said that the features of the Ruston Proctor which differed from other colonial engines were that it had a flywheel clutch and completely different gearing mechanisms. Notwithstanding, Mr Rossington said that the Ruston Proctor did not compete well against the other colonial engines available at the time, and only seven Ruston Proctor Colonial engines were imported to Australia.
According to Mr Rossington, the similarities between the Ruston Proctor and the United States designed colonial engines were that the Ruston Proctor followed the United States focus on the simplicity of design and manufacture including the accessibility of parts should repairs be needed, and the fact that the steam was taken from the front of the boiler.
When asked in cross-examination regarding the relationship between Ruston Proctor engines and the operations of H.V. McKay, Mr Rossington said that Ruston Proctor were one of the few items that H.V. McKay imported to Australia. Mr Rossington also said that H.V. McKay developed ploughs at a phenomenal rate, and that when he became established in Sunshine, he was one of the largest agricultural manufacturers in the Southern Hemisphere. When asked in cross-examination whether the Ruston Proctor was only a small part of McKay's business, Mr Rossington said that it enhanced his business rather than being a small part of it.
Specifically, Mr Rossington said of the H.V. McKay's operation that:
"In 1911 the H.V. McKay company began importing and selling the products of Ruston Proctor & Co and as a consequence, seven of the Ruston "Colonial" traction engines were ordered and put on trials of direct ploughing using McKay ploughs in multiple formation. Photographs of these trials can be seen in several Ruston Proctor catalogues of the period. These trials of direct ploughing using mechanical power would be a turning point in Australia's history of land cultivation." (T12/57)
Of the significance of the Ruston Proctor engine to Australia's cultural heritage, Mr Rossington said that:
"The significance of this object to the Australian cultural heritage can been seen by its construction to suit local conditions and local market forces; it's association with the firm of H.V. McKay and their introduction of direct ploughing techniques and machinery suited to direct ploughing and it's association with the booming agricultural industry of 1900-1920." (T12/57)
Mr Rossington recommended that an export licence not be granted in respect of the Ruston Proctor engine because he recognised only a few, perhaps two or four of the Colonial SHA Class engines were left in Australia. He said:
"I consider the export of this item would result in the significant loss of a piece of Australia's cultural, agricultural and industrial heritage. Remaining working examples of this style of traction engine number perhaps four at the most, and are held in private inaccessible collections.
The opportunity to gain practical knowledge of a) their construction to suit Australian conditions and b) their association with other Australian pioneering industries, would be severely reduced should this example not be retained in Australia." (T12/58)
EVIDENCE OF MR D LANG ENGINEERING WORKSHOP SUPERVISOR, SCIENCEWORKS MUSEUM VICTORIA AND EXPERT EXAMINER
There was a further Expert Examiner's Assessment commissioned by the Respondent obtained from Mr Lang, Engineering Workshop Supervisor, Scienceworks Museum, Museum Victoria dated 8 December 1999 at T13. He indicated that the Ruston Proctor engine was built in approximately 1913-1914 in Lincolnshire in the United Kingdom. Essentially the emphasis of this report was to Mr Lang's indication that:
"The Ruston Proctor Traction Engine falls in the category of 4.3 Section (D) which states that it is not represented in at least 2 public collections." (T13/61)
Mr Lang was not called to give oral evidence before the Tribunal.
SUBMISSIONS AND CONCLUSIONS
I had to take into account the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether the Ruston Proctor Colonial SHA Class Steam Engine Number 42028, the subject of these proceedings, was of such significance to Australia that allowing a permit for its export would significantly diminish the cultural heritage of Australia.
As outlined above, in order to reach the correct and preferable decision I was also required to consider the following:
· Whether the Ruston Proctor Colonial SHA Class Steam Engine Number 42028 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 Ruston Proctor Colonial SHA Class Steam Engine Number 42028 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 is appropriate in the circumstances pursuant to section 10 of the Protection of Movable Cultural Heritage Act 1986 which involved considering:
·Whether the Ruston Proctor Colonial SHA Class Steam Engine Number 42028 came within the requirements of Part 4 of the Protection of Movable Cultural Heritage Regulations 1987;
·Whether the Ruston Proctor Colonial SHA Class Steam Engine Number 42028 came within the requirements of Part 9 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 that 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.
In evaluating the evidence and submissions, I was mindful that the parties and their witnesses had various views regarding the exact date of manufacture of the Ruston Proctor engine, and the number of such Colonial SHA Class engines imported into Australia. Mr Churchward had a precise date, stating that the engine subject of this claim left the Ruston Proctor works in England on 22 July 1911. I did not consider the exact date to be of paramount importance, and was satisfied from the evidence that approximately between five and seven such (Colonial SHA Class) engines were imported into Australia in approximately 1911 or 1912 by H.V. McKay as agent for Ruston Proctor in the United Kingdom, and that approximately four remain, of which the engine subject of these proceedings is probably in the best condition. I turned then to consider whether the Ruston Proctor engine fell within the definition of movable cultural heritage pursuant to section 7 of the Act.
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.
WHETHER THE RUSTON PROCTOR 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 Applicant that the Ruston Proctor engine fell within the section 7(1)(g) in that it was an object of "scientific or technological interest". The Respondent submitted that the categories of movable cultural heritage applicable to the Ruston Proctor, in addition to section 7(1)(g) of the Act, included section 7(1)(j) being "any other prescribed categories".
I noted that the prescribed categories are outlined in regulation 3 of the Regulations:
"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 Ruston Proctor 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. Whilst I refrained from determining the precise character of the engine at this initial stage, I was mindful that Mr Churchward said that the Ruston Proctor engine, in so far as it related to objects of scientific or technological interest, provided:
"… a rare case study of technology transfer between America and Britain, and the role that the local firm H.V. McKay played in promoting the wider application of mechanised agriculture in Australia." (T14/66)
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 the United States, the Ruston Proctor engine was a copy of the then existing United States machinery.
I noted that Mr Clegg, in recommending that an export permit not be granted, stated that:
"The machine incorporates technical detail which sets it apart from other engines of the same make, or from the standard British design exported to this country. It was designed and manufactured entirely for colonial conditions and to meet a market situation existing in Australia." (T11/52)
I accepted the evidence of both Mr Churchward and Mr Clegg and the submissions of the parties that the Ruston Proctor engine was an object of scientific or technological interest in that it was designed for colonial markets including Australia and represented an evolution of British technology from standard engines to compete with United States designed traction engines. I did not accept the submission of Mr Condon that the engine was a copy of the USA manufactured machines, which I noted from the evidence were lighter, and ultimately more successful commercially.
Mr Johnson also submitted from the evidence of Messrs Clegg, Churchward and Rossington, that the Ruston Proctor engine was an object relevant to the category of social history due to its involvement in "work life", specifically in Australian agricultural development. He further submitted that the engine was associated with the works of H.V. McKay and his attempt to expand the uses of steam in the transitional period between the use of horse drawn ploughs and combustion engines, a period Mr Macdonald identified as being from the 1870s onwards. The engine was also involved in accelerated rates of land clearing and opening up new country with the stump jump disc plough, and the "booming agricultural industry of 1900-1920" (Mr Rossington T12/57).
I noted that Mr Clegg also referred to the Ruston Proctor's connection with "work life" through its usage by H.V. McKay in the "… experimentation and promotion of local farming methods." (T11/52)
I was also mindful that Mr Churchward stated that the particular make and model of the Ruston Proctor engine in this case, was "… chosen by H.V. McKay for use in the promotion of ploughing by steam …" and was involved in opening up country for farming. (Exhibit R9)
Mr Condon submitted that although the Ruston Proctor engine was involved in several direct ploughing experiments, it was not the only engine used for such trials. Moreover, the Ruston Proctor was a colonial engine designed to burn inferior fuel such as wood, and was used in Africa, South America, Australia and the Philippines. I accepted his submission that it had no adaptation specific to Australia, rather that it was built for use in the colonies, mindful that for markets such as South America, it was modified to burn straw.
Notwithstanding, I was satisfied that the Ruston Proctor engine was used in "work life" in clearing land in Australia for farming and for the development of the Australian agricultural industry through mechanisation in the early part of the 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 Ruston Proctor 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 an object relating to social history pursuant to item 9.3(d) of the Regulations.
WHETHER THE RUSTON PROCTOR 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
(b)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 Ruston Proctor 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 "work life". 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 [Social History/Historical Significance] are Class B objects for the Act …"
Therefore, I was satisfied that the Ruston Proctor 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 apply pursuant to section 9 of the Act.
WHETHER THE RUSTON PROCTOR ENGINE CAME WITHIN THE REQUIREMENTS OF 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 relating 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:
(a)tools, weapons, implements and machines; and
(b)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) any agricultural object, including:(i)an object used for agricultural production; and
(ii)an object used for processing agricultural products; and
(iii)an object relating to an industry producing products for use in agriculture; and
(iv)any tool, implement or equipment used or intended for use in agriculture or farming life; and
(v)scientific equipment relating to agricultural research; and
(vi)any other thing related to agriculture; and
(c)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
…"
As discussed above, I was satisfied on a preliminary level that the Ruston Proctor 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. 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 noted that the Applicant submitted that the Ruston Proctor 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 comprised substantially of Australian content, but was rather:
"… intended to be used in a range of markets, not confined to Australia, and including South America and Africa. It has no adaptation specific to Australia and no input from Australian manufacturers." (Statement of Facts and Contentions dated 3 October 2000 page 2)
I was mindful that the Applicant also submitted that its usage in Australia was minor and insufficient to constitute significance to Australia, or even significant technological or social progress for its time:
"The object has no enduring role in Australia, being an unsuccessful model that failed to undermine sales of American equivalents and was undercut by the introduction, within a few years, of internal combustion engine tractors. As such, its significance to the history or culture of Australia is, at best, limited and transitory and it does not represent technological progress of any note." (Statement of Facts and Contentions dated 3 October 2000 page 2)
Mr Condon submitted that although Mr Clegg had said in evidence that the Ruston Proctor engine was significant in that it was designed to compete with the United States designs, the engine had no direct association with Australia. Just because there was a relationship to international technological advances was an insufficient reason for the Ruston Proctor engine to remain in Australia, he submitted. Mr Condon added that the engine came to Australia at a time when the steam engine was a dominant piece of agricultural machinery. However, due to the impending boom of combustion tractors in agricultural markets, the Ruston Proctor colonial engine represented technology that was rapidly superseded and thus, was not representative of the technology in the decades that followed.
Mr Condon submitted that he accepted the operations of H.V. McKay were huge and produced vast numbers of agricultural machinery, including ploughs. However, he submitted that for the purposes of the Act, the association required was a close nexus, and not any nexus regardless of how remote or transitory.
Mr Condon then directed my attention to the definition of "associate" in the Third Edition of the Macquarie Concise Dictionary ("the Macquarie Dictionary"), and indicated that by implication association meant "to join as a companion, partner, or ally". He then submitted that the association between H.V. McKay and the Ruston Proctor engine was one of agency relationship, and as a result, a fairly fleeting nexus. He added that it was common sense to note that for an operation producing vast amounts of agricultural equipment, the importation of some seven Ruston Proctor Colonial SHA Class steam engines was not a large part of the business of H.V. McKay.
I noted that in the Applicant's Statement of Facts and Contentions dated 3 October 2000, it was submitted that the test of association as envisaged by the legislative drafters was not of the high order proposed by the Respondent.
"It cannot have been the intention of the draughtspersons (sic) of the Act and the Regulations that an object could satisfy the high standard that has to be made out by the Respondent merely by a peripheral contact with a notable entity [in this case H.V. McKay], falling short of the ordinary dictionary definition of association."
Mr Condon also drew the Tribunal's attention to the fact that many of the experts agreed that the Ruston Proctor colonial engine had not been a commercial success. He submitted that what could be gleaned from this was that it did not have novel features and could not be distinguished from the Fowler or Marshall engines. He added that whilst every machine had differing integers or a different ordering of the same technological features, in a broad sense, the different ordering of integers did not impact significantly on the question as to whether it was of such cultural significance to Australia.
Mr Condon also submitted that it did not matter whether the Ruston Proctor engine was a one or two cylinder or even a compound engine. Such technology he submitted, was available well in advance of the date of manufacture of the Ruston Proctor engine in 1911, and as such, it did not represent any new technology.
Mr Condon added that all the Ruston Proctor engines imported into Australia in 1911 had survived, and although number 42028 appeared to be the best surviving example, there were other examples that existed in Australia.
As to its association with H.V. McKay which the Respondent submitted was a significant consideration, the Applicant relied on the evidence of Mr Macdonald that while H.V. McKay did use Ruston Proctor engines to promote ploughing by steam:
"… the association was with the firm of "H.V.Mackay & Co." who, at the time held the agency for the sale and distribution of the products of Messrs. Ruston Proctor & Co. Like any other agency as observed today, their function was to promote and service the products and obtain customer satisfaction leading to further business for which they received monetary commission. They also held agency agreements with other manufacturers of agricultural implements. It was a business arrangement and it was not likely that H.V.Mackay as a person was involved with this engine. His forte and interest was in the development of agricultural machines." (Exhibit A4)
Moreover, according to Mr Macdonald, the Ruston Proctor engine the subject of this claim had no other association with H.V. McKay other than that it was imported by the company, as agent for Ruston Proctor in Australia. He emphasised it was one of a number of agencies held by H.V. McKay.
I was mindful that the Respondent submitted that the Ruston Proctor engine was significant to Australia in that it:
"…developed in the UK specifically for use in Australia (and possibly other colonies) and was imported by a major Australian firm involved in Australian agriculture in the early 20th century. The firm used such engines in developing innovations such as direct traction ploughing. This engine is said to be the best example of such an engine in terms of its condition." (Statement of Facts and Contentions dated 12 October 2000 page 8)
The Respondent relied on the evidence given by the expert examiners, namely, Mr Rossington, Mr Clegg and Mr Churchward, to support the claim that the engine's usage in Australia particularly, its usage through H.V. McKay, demonstrated its high level of significance to Australia.
I was mindful that Mr Rossington stated in his expert report that:
"The significance of this object to the Australian cultural heritage can been seen by its construction to suit local conditions and local market forces; it's association with the firm of H.V. McKay and their introduction of direct ploughing techniques and machinery suited to direct ploughing and it's association with the booming agricultural industry of 1900-1920." (T12/57)
Mr Rossington added further in respect of the relationship between the Ruston Proctor engine and H.V. McKay that:
"In 1911 the H.V. McKay company began importing and selling the products of Ruston Proctor & Co and as a consequence, seven of the Ruston "Colonial" traction engines were ordered and put on trials of direct ploughing using McKay ploughs in multiple formation. Photographs of these trials can be seen in several Ruston Proctor catalogues of the period. These trials of direct ploughing using mechanical power would be a turning point in Australia's history of land cultivation." (T12/57)
I was also mindful that Mr Clegg maintained that the fact that Ruston Proctor was prepared to design and manufacture engines, including the Colonial model the subject of this claim, especially for Australian conditions, was of considerable significance.
Mr Clegg considered the technical differences of the Ruston Proctor engine significant. He said that:
"The machine incorporates technical detail which sets it apart from other engines of the same make, or from the standard British design exported to this country. It was designed and manufactured entirely for colonial conditions and to meet a market situation existing in Australia." (T11/52)
I noted that Mr Churchward said that it was not significant that the Ruston Proctor engine was used for direct steam ploughing but rather that "… it was this model and make of engine that was chosen by H.V. McKay for use in the promotion of ploughing by steam".(Exhibit R9)
Turning to the assessment of the significance to Australia of the Ruston Proctor engine, I noted the comments of 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."
As the Ruston Proctor engine was recorded as having been imported into Australia in or about 1911 or 1912, I was satisfied that the engine was at least 30 years old pursuant to item 9.2(c) of the Regulations. The evidence regarding "work life" has been canvassed in the discussion earlier in these reasons, and I have found that the Ruston Proctor engine was an object relating to "work life" in satisfaction of item 9.3(d) of the Regulations in that it was used in clearing land in Australia for farming and for the development of the Australian agricultural industry through mechanisation in the early part of the twentieth century.
I noted the Statement of Facts and Contentions of the Respondent dated 12 October 2000 as follows and accepted its argument:
"? Item 9.2(a) - It is an object of the kind mentioned in item 9.3 as it is equipment which relates to "work life" in terms of having been imported by a major agricultural firm involved in agricultural innovation;
?Item 9.2(b) – It is associated with an "activity" and "business enterprise" notable in Australian history in terms of representing the peak of the use of steam engines in Australian agricultural history in the early 20th century;
?Item 9.2(c) – it is clearly more than 30 years old;
? Item 9.2(d) – Expert evidence from four 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 Ruston Proctor engine and H.V. McKay as detailed above in respect of regulation 2.1(a) of the Regulations, namely, that it was one of between five and seven such engines imported into the Australian market by H.V. McKay, to compete with United States built traction engines and was used to experiment with, and promote local farming methods including direct traction ploughing. In respect of item 9.3(d), I accepted that the Ruston Proctor engine was used for land clearing and opening up new country using the stump jump disc plough, and thus could be classified as an "… object relating to work life".
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.
WHETHER THE OBJECT WAS 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."
Further I was 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 also 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 Ruston Proctor 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 should rarely, if ever, prevail over matters relating to the long term potential of a significant heritage object."Mr Johnson submitted further 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 further 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 submitted 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 said, in reference to the Applicant's argument that the technology of the Ruston Proctor colonial engine was rapidly superseded, that it was not the position of the Respondent that the engine was tremendously novel or unique, but rather that it represented a change in machinery to meet the demands of the public at the time, and that it was thus important in the development of ideas, and as part of Australia's agricultural history. Mr Johnson further submitted that the historical significance of the engine had not been refuted by the Applicant.
Mr Johnson also argued that while the Applicant believed that the nexus between H.V. McKay and the Ruston Proctor was fleeting, the Respondent's position was that a nexus had been established, and as such was to be considered by the Tribunal when assessing the significance of the engine. He added that it was important not to confuse the test of significance and the test of association.
Mr Johnson further 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."
In this respect, I noted the evidence of the experts, Mr Macdonald, Mr Rossington, Mr Churchward and Mr Clegg, that of the four or five Ruston Proctor Colonial SHA Class steam engines remaining in Australia, the one subject of this claim was the best example.
In considering the case law, I noted the use of the word "irreparable" in relation to the loss through export of a Category B item and was mindful that "irreparable" was used in Blake (supra). Notwithstanding, I 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. I find that the Ruston Proctor engine the subject of this claim was one of five or up to seven Colonial SHA Class steam engines imported to Australia by H.V. McKay to experiment with, and promote local farming methods, including direct ploughing. I accepted the evidence of the Respondent's experts that the technology used in the Colonial SHA Class steam engine represented a departure from standard engine designs that had been manufactured in the United Kingdom and had evolved in response to the needs of the colonial markets in Australia, amongst other places in order to compete with the United States designed engines.
I further accepted that whilst there are examples in Australia, and in public collections of steam technology manufactured by companies in the United Kingdom and the United States other than Ruston Proctor, I was satisfied that the features of this other technology sufficiently differed from not only the design and manufacture of the Ruston Proctor engine the subject of this claim, but also its usage in the development of the Australian agricultural industry by a major agricultural innovator, H.V. McKay. I did not consider the fact that the Ruston Proctor was not a commercial success of any great import.
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 Mr Rossington (T4), Mr Clegg (T6) and Mr Churchward (T9), and Mr Lang (T13) in their capacity as registered expert examiners (section 10(3) of the Act).
I noted that the expert examiners provided reports on the Ruston Proctor engine as follows:
· Mr Rossington dated 28 November 1999 (T12);
· Mr Clegg dated 8 November 1999 (T11); and
· Mr Churchward dated 10 December 1999 (T14);
· Mr Lang dated 8 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 Ruston Proctor engine pursuant to section 10(5)(b) of the Act on 4 February 2000 (section 10(7) of the Act) (T2), 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 Ruston Proctor engine the subject of this claim, falls 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 Ruston Proctor engine was significant to Australia in that it represented a departure from standard British steam technology and was specifically designed for colonial markets including Australia in competition with USA manufactured engines and for this reason was used by H.V. McKay in the experimentation and promotion of local farming methods and the development of mechanised ploughing pursuant to item 4.3(a);
·The Ruston Proctor, having been imported to Australia in approximately 1911-12, although not of Australian origin, was in use in Australia at least 30 years ago pursuant to item 4.3(b)(iii);
·The Ruston Proctor engine falls within the categories of Class B objects in item 4.4 in that it could be classed as an agricultural object "used or intended for use in agriculture or farming life" pursuant to items 4.3 (c) and 4.4(a)(iv);
·There exists no engine of equivalent quality to the Ruston Proctor engine in a public collection in Australia. The remaining Ruston Proctor Colonial SHA Class steam engines are in a lesser condition and are not in publicly accessible collections, and examples of engines manufactured by other companies in the UK and the USA, whilst to a degree are similar, were significantly different to the Ruston Proctor, as not to be of equivalent quality pursuant to item 4.3(d).
Part 9 - Objects of Social History
·The Ruston Proctor engine as a result of its use in the experimentation and promotion of local farming methods particularly with land clearing and opening up new country using the stump jump disc plough, could be classified as an "… object relating to work life" pursuant to items 9.2 (a) and 9.3(d);
·H.V McKay imported up to seven Ruston Proctor Colonial SHA Class steam engines into Australia for experimentation in expanding the uses of steam in the transitional period between horse drawn ploughs and combustion engines pursuant to item 9.2(b);
·It was imported into Australia in approximately 1911-12 and is well in excess of 30 years old pursuant to item 9.2(c);
·For the same reasons given in respect of item 4.3(d), there exist no engine of equivalent quality to the Ruston Proctor engine in a public collection in Australia pursuant to item 9.2(d).
Having considered all of the material including the evidence of all of the experts regarding the application by Mr Jacklin for a permit to export the Ruston Proctor engine to the United Kingdom, relying particularly on Messrs Churchward, Clegg, Rossington and Lang, 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. Therefore, I was satisfied that the Ruston Proctor engine was of such importance to Australia, and accordingly affirmed the decision of the Minister not to issue a permit to export the object pursuant to section 10(6) 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 Ruston Proctor Colonial SHA Class Steam Engine Number 42028 pursuant to section 10(5) of the Protection of Movable Cultural Heritage Act 1986.
I certify that the 199 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
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