John Hawkins and Minister for the Arts The Hon R J Groom AO (Deputy President) Ms S Taglieri (Member) 25 November 2013 Hobart
[2013] AATA 835
[2013] AATA 835
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2952
Re
John Hawkins
APPLICANT
And
Minister for the Arts
RESPONDENT
INTERLOCUTORY DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Ms S Taglieri (Member)Date 25 November 2013 Place Hobart The Tribunal decides that:
1. It has jurisdiction to decide the substantive application lodged by the applicant.
2. In the circumstances of this case it is not empowered to dismiss the application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975.
3. A further hearing is to be held on a date to be fixed for the purpose of providing both parties with an opportunity to make submissions on the question of whether the substantive application lodged by Mr Hawkins should be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975.
[Sgd Hon R J Groom]
Deputy President
PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal has jurisdiction to review decisions – applicant agrees that decisions to be reviewed are correct –Tribunal has jurisdiction - whether application should be dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 – no basis for such dismissal - whether application should be dismissed pursuant to section 42B of that Act as frivolous or vexatious – parties to be given further opportunity to be heard on that question
Administrative Appeals Tribunal Act 1975, ss 25(4), 42A(4), 42B
Protection of Movable Cultural Heritage Act 1986, s 48
Ombudsman Act 1976 (Cth), s 10
Re Septimus Parsonage and Co [1901] 2 CH 424
Gaskell and Chambers Ltd v Hudson Dodsworth and Co [1936] 2 KB 595
Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667
Attorney-General for New South Wales v Wentworth (1988) 14 NSWLR 481
Filsell and Comcare (2009) 109 ALD 198
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
Ms S Taglieri (Member)25 November 2013
The respondent asks the Tribunal, pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975, (the “AAT Act”) to dismiss Mr Hawkins’ application for review.
In the respondent’s “Outline of Argument” dated 15th October 2013 it is contended that the substantive application should be dismissed pursuant to section 42A(4) because:
“1.1 the decision under review is the 10 May 2013 decision of the Ministers delegate (T 15), but the applicant is content with this decision; and
1.2 the ‘decisions’ the applicant wants reviewed are not decisions which are reviewable by the Tribunal”.
BACKGROUND
The Protection of Movable Cultural Heritage Act 1986 (“PMCH Act”) regulates the export of items of significant movable cultural property. The PMCH Act has established a system of export permits and certificates of exemption for certain cultural property defined as “Australian protected objects”. If a person wants to export an “Australian protected object” that person must apply for and be issued with an export permit for the object. Substantial penalties can be imposed for someone convicted of exporting such an object without a permit. (unless a certificate of exemption has been issued)
The “Kennedy Collection” is a most important and valuable collection of Australian art, furniture, silver, jewellery pottery and porcelain. It is owned by Mr Trevor Kennedy and is located in the Kennedy Museum in Sydney.
Mr Kennedy has decided to sell the collection. He appointed Mr Hawkins as his agent to negotiate the sale.
The National Museum of Australia (the “NMA”) showed interest in acquiring the collection. The NMA engaged independent valuers who, the Tribunal is told, valued the entire collection at a figure in excess of $26 million.
For the purpose of the valuation NMA divided the “Kennedy Collection” into two Schedules of items. Schedule 2 is a list of the most important and valuable historical items. Schedule 1 is made up of items of less significance.
As a result of budgetary constraints the NMA apparently made an offer for the collection at a price below valuation. This offer was not accepted by Mr Kennedy.
Mr Hawkins was then instructed by Mr Kennedy to find an alternative buyer for the collection. Key items in schedule 2 and the “art collection” have now been sold to an overseas buyer. This sale is subject to the granting of an export permit allowing the items selected by the buyer to be exported as a single collection.
By letter dated 14 May 2012 (T3) Mr Hawkins applied for an “export licence” for the “Kennedy Collection”. He stated in his letter that “it is important to understand that we have sold the collection as a collection”.
A letter dated 20 July 2012 (T4) from the Department and signed by Mr Mark Gordon “Acting Director Cultural Property and Gifts” and addressed to Mr Hawkins stated as follows:
“Firstly, it is not possible for the Minister to grant an export permit for the objects in your application as a single entity. This confirms the advice provided to you in person during our meeting in Canberra on 28 March 2012.
Currently there are only two areas of the National Cultural Heritage Control List (the control list) where collections are specified as class B objects. These are Archaeological Objects and Philatelic Objects.
In view of this, each object in the ‘Kennedy Collection’ will need to be assessed separately by an expert examiner. The expert examiner report will then be considered by the National Cultural Heritage Committee which will make a recommendation on the cultural significance of each object and whether its export would significantly diminish the cultural heritage of Australia. The Minister, or his delegate, will then make a decision on whether or not to grant an export permit for each separate object.”
The Department’s advice that the Minister would not consider issuing a permit for the entire collection was clearly a matter of serious concern to Mr Hawkins.
In a letter dated 5 August 2012 addressed to Mr Gordon (T5) Mr Hawkins said:
“I do not agree that you have the right as a non- accountable arbiter to prevent me documenting my collection as one item. I am contracted to sell it as a collection for a fixed price as one item. You give no reason for this decision and can provide no precedent or cite any enforcing legislation”.
A further explanation was provided to Mr Hawkins in a letter from Ms Lyn Allan Assistant Secretary of the Department (T6). She explained the Department’s interpretation of the legislative provision in the following terms:
“Because the legislation does not allow for the consideration of the objects in your application as a single collection, each Class B object is individually subject to export control and an export permit must be granted before it may be exported from Australia”.
Mr Hawkins, obviously with some degree of reluctance, then agreed to apply for permits for four items of jewellery (T7). That number was later increased to 8 items of jewellery (T9).
In a letter dated 10 May 2013 Ms Basser, First Assistant Secretary of the Department, acting as “the delegate of the Minister for the Arts” advised Mr Hawkins that export permits were refused for seven of the eight items. An export permit however was granted for one item of jewellery (item number 2010/660).
Mr Hawkins received notice of the decision of 10 May 2013 on 21 May 2013. By application dated 17 June 2013 (T1) he applied to this Tribunal for a review of the decisions made by Ms Basser as the delegate of the Minister.
It is apparent from the “Reasons for Application” attached to Mr Hawkins’ application to review that his principal grievance is that the Minister issued export permits for seven individual items rather than consider all of the items in the whole collection for an export permit as one entire collection. Mr Hawkins stated as follows:
“We are contesting the right of the Government and its appointee’s to randomly select items from the Kennedy Collection, thereby destroying its integrity and compromising the sale.
We respectfully note that we applied to export a carefully chosen comprehensive collection of Australian jewels selected by the purchaser under proper advice. We can test the right of a Government to compromise the sale by randomly selecting items of their choice so as to make this sale invalid.
We applied to export a complete Collection not the Government’s random choice from this Collection”.
THE ISSUES
The principal issues to be determined by the Tribunal are:
(a) Does the Tribunal have jurisdiction to review the decisions made by the Minister’s delegate on 10 May 2013?
(b) Should the substantive application be dismissed pursuant to section 42A(4) of the AAT Act?
(c) On the material before the Tribunal is there any other possible ground for the dismissal, at this stage of proceedings, of Mr Hawkins’ application?
DOES THE TRIBUNAL HAVE JURISDICTION?
The Tribunal does not have a general power of review. Its review powers are limited to those expressly conferred by an “enactment”. (See section 25(4) of the AAT Act)
In this application the relevant enactment is the PMCH Act. Section 48 of that Act provides as follows:
“(1) Application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision by the Minister to refuse to grant a permit or certificate;
(b)a decision by the Minister to impose a condition under paragraph 10(5)(a), 10A(7)(b) or 12(3)(a); or
(c) a decision by the Minister under subsection 11(2), 12(5) or 13(1).
(2) Where a person is notified of a decision referred to in subsection (1), the Minister shall cause to be served on the person a notice stating that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision.
(3) A failure to comply with subsection (2) in relation to a decision does not affect the validity of the decision”.
As mentioned, by an application dated 17 June 2013 (T1) Mr Hawkins applied to the Tribunal for a review of the decisions dated “10 May 2013”. In answer to the question “who made the decision, if known” the applicant stated “Minister for the Arts and Natural Cultural Heritage Commission”.
It is not in contention, and the Tribunal is satisfied on the material before it, that the decisions of 10 May 2013 which Mr Hawkins refers to in his application for review are the decisions of that date made by Ms Sally Basser “First Assistant Secretary Office for the Arts” which is included in the Section 37 Documents (R1) at T15. A copy of Ms Basser’s letter to Mr Hawkins dated 10 May 2013 was attached to the Application for Review when it was lodged at the Hobart Registry of the Tribunal on 20 June 2013.
In her decision Ms Basser, acting as “the delegate of the Minister for the Arts”, refused to grant to Mr Hawkins an export permit for seven specified items of jewellery. Ms Basser, as the Minister’s delegate, did, however, grant an export permit for an eighth item of jewellery described as “a large open work bracelet consisting of eight gold nuggets….” That export permit was granted subject to a condition which was specified in the written decision.
Section 24 of the PMCH Act authorises the Minister to delegate most of his or her powers under the Act, including the power to grant or refuse an export permit and to attach conditions to a permit, to certain officers of the Department. It is not disputed, and the Tribunal concludes, that Ms Basser had been delegated, as stated by her, to make these export permit decisions on the Minister’s behalf.
The Tribunal is satisfied on the material before it that the decisions set out in Ms Basser’s letter of 10 May 2013 relating to the seven items for which export permits were refused were decisions “… by the Minister to refuse to grant a permit” within the meaning of section 48(1)(a) of the PMCH Act. It is also satisfied that the condition imposed on the export of the eighth item of jewellery was a decision “… to impose a condition under paragraph 10(5)( a)” within the meaning of section 48(1)(b) of the PMCH Act.
The Tribunal concludes that it does have jurisdiction to review the decisions made by Ms Basser, as a delegate of the Minister, as communicated to Mr Hawkins in her letter to him of 10 May 2013.
SHOULD THE APPLICATION BE DISMISSED PURSUANT TO SECTION 42A(4) OF THE AAT ACT?
Section 42A(4) of the AAT Act applies when the Registrar or a Deputy Registrar forms the view that the decision in question does not appear to be reviewable by the Tribunal. A letter is then written to the applicant asking the person to show, within a specified time, that the decision is reviewable.
There is no evidence that such a letter was written to Mr Hawkins by the Registrar or a Deputy Registrar concerning Mr Hawkins’ application for review. The Tribunal finds that no such letter was written. In the absence of such a letter the Tribunal is not empowered, pursuant to section 42A(4) of the Act, to dismiss Mr Hawkins’ application for review.
ON THE MATERIAL BEFORE THE TRIBUNAL IS THERE ANY OTHER POSSIBLE GROUND FOR THE DISMISSAL, AT THIS STAGE OF THE PROCEEDINGS, OF MR HAWKINS’ APPLICATION?
The Tribunal has already concluded that it does have jurisdiction to review the 10 May 2013 decisions made by the Minister’s delegate. It also finds that there is no basis for dismissal under section 42A(4) of the AAT Act.
Central to the application by the respondent’s solicitor, Mr Hyland, for the dismissal of Mr Hawkins’ substantive application for review is his contention that Mr Hawkins actually believes Ms Basser’s decisions of 10 May 2013 to be correct decisions.
Mr Hawkins expressed the view at page 3 of his written “Statement of Issues” as follows:
“At this stage seven of the eight initially chosen items have been quite correctly refused an export licence…”
He confirmed that opinion in unequivocal terms during the hearing held on 22 October 2013.
It appears to the Tribunal that Mr Hawkins’ real concern is not with the decisions made on 10 May 2013 but rather with the department’s decision that it cannot lawfully entertain the granting of an export permit for the whole “Kennedy Collection” as a single entity.
Mr Hawkins said in his “Statement of Issues” (at page 2) that:
“ I applied to export the “Kennedy Collection” and supplied all the relevant details to the Department. The Department replied that it was not possible for a permit to be granted for the “Kennedy Collection” as a single entity as only collections of archaeological and philatelic objects fell within the control list as collections
Who made this determination on what grounds, was their collusion to protect this illogical position if so by whom?”
Mr Hawkins also said in his “Statement of Issues”:
“This has brought the matter to a head resulting in my appeal over the interpretation of the word “Collection” and raises further questions.”
Again, in his “Statement of Issues” (page 3) Mr Hawkins further explained his grievance in the following terms:
“If the acquisition of the Kennedy Collection is not in the National Interest we need this to be stated by the Department.
Has the Department colluded to block this sale and devalue the ‘Kennedy Collection’ by the use of their interpretation of the word Collection?
A decision is requested over these two matters by the Tribunal”
It would appear from Mr Hawkins’ Statement of Issues and also from the explanations given by him at the hearing that these proceedings were not instituted for the purpose of obtaining an adjudication on whether the decisions made on 10 May 2013 were the correct or preferable decisions but for a collateral purpose.
Mr Hawkins’ own statements clearly indicate that the real purpose of these proceedings is to seek a ruling on the Department’s interpretation of the word “collection” and other related questions. Those particular matters will have no relevance in a merits review of the decisions made on 10 May 2013. In that review the Tribunal would necessarily limit the scope of its review to determining whether the decisions made on the eight export permit applications were the correct or preferable decisions
Proceedings in the Tribunal are not intended to be used for some collateral purpose. It is well established that litigation is vexatious if it is not a bona fide attempt to have a Court or Tribunal adjudicate the issues specified to be in dispute. See, e.g. Re Septimus Parsonage and Co [1901] 2 CH 424; Gaskell and Chambers Ltd v Hudson Dodsworth and Co [1936] 2 KB 595; Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667 and Attorney-General for New South Wales v Wentworth (1988) 14 NSWLR 481.
In fairness to Mr Hawkins the reason he has not made an application to the Tribunal for a review of the department’s decision not to allow the “Kennedy Collection” to be exported in its entirety is probably because to date no decision has been made by the Minister or the Minister’s delegate on that particular question. The Tribunal has no jurisdiction to consider that question until a decision has been made by the Minister or the Minister’s authorised delegate and an application to review that decision is lodged.
The Tribunal notes that the PMCH Act does not prescribe a time limit in which the Minister or the Minister’s delegate must make a decision on a permit application. As mentioned at the hearing, section 10 of the Ombudsman’s Act 1976 (Cth) gives the Commonwealth Ombudsman the power to certify that a decision has been made if the Ombudsman is of the opinion that there has been an unreasonable delay in deciding to do an “act or thing”. If the Ombudsman did so certify it may then allow Mr Hawkins to seek a review of that decision. There may then be an opportunity for the Tribunal to consider Mr Hawkins’ real grievance namely whether, as a matter of law, a single export permit could be granted for the entire Kennedy Collection.
The material now before the Tribunal does suggest that these proceedings may be frivolous or vexatious. Section 42B of the AAT Act empowers the Tribunal, at any stage of the proceedings, to dismiss the substantive application if it is satisfied that the application is frivolous or vexatious.
The proceedings may well be vexatious because their essential purpose is collateral. They may also possibly be frivolous because they are likely to be futile. This is because Mr Hawkins is asking the Tribunal to review decisions with which he actually agrees. This is most unusual. It obviously suggests that the purpose of the proceedings is not to correct those decisions but for an entirely separate purpose. There is plainly little prospect of success if Mr Hawkins maintains that the decisions made on 10 May 2013 were indeed the correct decisions. As indicated in Re Filsell and Comcare (2009) 109 ALD 198 at page 206:
“However, if proceedings have no reasonable prospect at all of success, they should be dismissed under section 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this Tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing”.
It is well recognised that the power of the Tribunal to dismiss proceedings under section 42B should be exercised cautiously. See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and also Re Filsell and Comcare (cited above) at page 206.
As dismissal pursuant to section 42B was not proposed by Mr Hyland at the hearing held on 22 October 2013, Mr Hawkins, if he wishes to proceed with his application, should be given the opportunity to be heard on that question.
A further hearing will therefore be held on a date to be fixed for the purpose of providing both parties with an opportunity to make submissions as to whether the substantive application lodged by Mr Hawkins should be dismissed pursuant to section 42B of the AAT Act.
DECISION
48. The Tribunal therefore decides that:
1. It has jurisdiction to decide the substantive application lodged by the applicant.
2. In the circumstances of this case it is not empowered to dismiss the application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975.
3. A further hearing is to be held on a date to be fixed for the purpose of providing both parties with an opportunity to make submissions on the question of whether the substantive application lodged by Mr Hawkins should be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of the Hon R J Groom AO (Deputy President) and Ms S Taglieri (Member) [Sgd]
Administrative Assistant
Dated : 25 November 2013
Date(s) of hearing 22 October 2013 Applicant In person Solicitors for the Joined Party Mr J Hyland, Australian Government Solicitor
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