Legal database - View: Cases: Truswell and Minister for Communications and Arts, Re

Truswell v Minister for Communications & The Arts
(1996) 42 ALD 275

(Decision by: Mathews, P;, Forgie S A, DP;, Stein J M, M)

Terrence Albert David Truswell v
Minister for Communications & The Arts

Tribunal:

Administrative Appeals Tribunal

Mathews, P;
Forgie S A, DP;
Stein J M, M

Subject References:
CATCHWORDS
moveable cultural heritage
Class B object
export permit
significant diminution
Victoria Cross medal
Military and Heraldry Objects
significant
identified property
cultural heritage of Australia
cultural heritage of Australia
importantly or notably
cultural
significantly diminish

Legislative References:
Administrative Appeals Tribunal Act 1975 - 37
Australian Heritage Commission Act 1975 - 3(1); 4(1); 4(1)(A)
Income Tax Assessment Act 1936 - the Act
Protection of Movable Cultural Heritage Act 1986 - 7; 8; 10
Protection of Movable Cultural Heritage Regulations - Para 7
Veterans' Entitlements Bill 1985 -
Veterans Entitlements Act 1986 - 103
World Heritage Properties Conservation Act 1983 - 3(1); 3(1)(a)(iv)

Case References:
ACI PET Operations Pty Ltd v Comptroller-General of Customs - (1990) 26 FCR 531
Best and Minister for the Arts and Administrative Services - (1994) 36 ALD 343
Blake and Brain and Minister for Communications and the Arts - (1995) 38 ALD 333
Drummoyne Municipal Council v Roads and Traffic Authority - (1989) 67 LGRA 155
Hawkins and Minister for Communications and the Arts - (1995) 38 ALD 323
McVeigh v Willarra Pty Ltd - (1994) 6 FCR 587
Mickelberg v The Queen - (1989) 167 CLR 259
Tasmanian Conservation Trust Inc v Minister for Resources and Another - (1995) 127 ALR 580
Trade Practices Commission v TNT Management Pty Ltd - (1984) 1 FCR 172
Re Vulcan Australia Pty Ltd and Comptroller-General of Customs and Another - (1994) 20 AAR 116

Hearing date: 27 & 28 November 1995
Decision date: 1 May 1996

Brisbane

Decision by:
Mathews, P;
Forgie S A, DP;
Stein J M, M

BACKGROUND

1. On 25 March 1994 the applicant, Terrence Albert David Truswell, applied to the Minister for Communications and the Arts ("the Minister") for a permit to export a Class B object under the Protection of Movable Cultural Heritage Act 1986 ("the Act"). His application was made in relation to a Victoria Cross ("VC") and a Military Cross ("MC"), which formed part of a group of medals and decorations awarded to Major Edgar Thomas Towner. The Minister had referred the application to the National Cultural Heritage Committee ("the Committee") in accordance with the Act. On 22 August 1994 the Minister refused to grant a permit to Mr Truswell. He did so after considering the report and recommendations of the Committee. He refused the application on the basis that the decorations and medals are of substantial cultural significance to the nation and to Queensland. He noted that the weight of professional advice given to him was that the cultural heritage of Australia would be significantly diminished by their export.

2. On 11 January 1995 Mr Truswell applied to this Tribunal for review of the Minister's decision. At the hearing of his application, he was represented by Mr Trungove, a lay advocate and the Minister was represented by Mr Logan of Counsel. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were admitted in evidence together with statements of Mr Anthony Staunton, Mr Geoffrey Ferguson Towner and Mr Randal Lukin Watts. The Explanatory Memorandum to the Veterans' Entitlements Bill 1985 and various correspondence and literature to which we shall refer in the course of these reasons were also tendered. Oral evidence was given by Mr Staunton, Major Royson Stanley (Bill) Billett and Mr Peter John Burness. These three witnesses were the expert examiners to whom the Committee had referred Mr Truswell's application in accordance with sub-section 10(3) of the Act. Others to give oral evidence were Major General William Brian (Digger) James and Mr Jeffrey Ferguson Towner.

ISSUES

3. The issue in this case is whether Mr Truswell should be granted an export permit in relation to the VC and MC awarded to Major Towner. That issue will be resolved by determining whether Major Towner's medals are of such importance to Australia that their loss would significantly diminish the nation's cultural heritage.

4. In general, the evidence and submissions in the case have concentrated upon the importance of Major Towner's VC, for that is by far the most significant of his medals. Similarly, our discussion will primarily centre upon the VC. But it must be remembered that Major Towner's MC is also a Class B object under the Act, and that both his VC and his MC are part of his total medal collection.

THE LEGISLATIVE FRAMEWORK

5. Division 1 of Part II of the Act deals with the control of exports. In particular, sections 7, 8 and 10 are relevant to this application.

6. Section 7 defines the moveable cultural heritage of Australia:

"Movable cultural heritage of Australia

7. (1)

A reference in section 8 to the movable cultural heritage of Australia is a reference to objects that are of importance to Australia, or to a particular part of Australia, for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons, being objects falling within one or more of the following categories:

(a)

objects recovered from:

(i): the soil or inland waters of Australia;
(ii): the coastal sea of Australia or the waters above the continental shelf of Australia; or
(iii): the seabed or subsoil beneath the sea or waters referred to in subparagraph (ii);

(b)

objects relating to members of the Aboriginal race of Australia and descendants of the indigenous inhabitants of the Torres Strait Islands;

(c)

objects of ethnographic art or ethnography;

(d)

military objects;

(e)

objects of decorative art;

(f)

objects of fine art;

(g)

objects of scientific or technological interest;

(h)

books, records, documents or photographs, graphic, film or television material or sound recordings;

(j)

any other prescribed categories.

(2)

The generality of paragraph (1)(j) is not limited by any of the other paragraphs of subsection (1)."

7. Section 8 provides for the establishment, in the regulations, of the National Cultural Heritage Control List ("the List"):

"National Cultural Heritage Control List

8. (1)

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

(2)

The Control List shall divide such objects into 2 classes, namely:

(a): Class A objects, being objects that are not to be exported otherwise than in accordance with a certificate; and
(b): Class B objects, being objects that are not to be exported otherwise than in accordance with a permit or certificate.

(3)

Subsection (2) does not prevent the division of Class A objects and Class B objects into sub-classes and other divisions or categories.

(4)

Nothing in this section shall be taken to limit the application of subsection 33(3A) of the Acts Interpretation Act 1901."

8. The List is set out in the Schedule to the Regulations. Part VII of the List deals with "Military and Heraldry Objects", all of which are stated to be Class B objects. Paragraph 1(a) defines "heraldry and historical material" to include:

"(a)

any medal or other decoration, whether of a civil or military nature (not being a campaign medal), awarded to a person:

(i): ordinarily resident in Australia at the time of the award; or
(ii): in the case of a posthumous award - ordinarily resident in Australia at the time of the service or circumstance to which the award relates;

and any citation or other document, or insignia, relating to such a medal or decoration, but not including any medal, decoration, citation, document or insignia owned by the person to whom the award was made or, in the case of a posthumous award, by the next-of-kind of that person;"

9. Paragraph 2 is in the following terms:

"2.

This category consists of any object of heraldry and historical material or of weaponry:

(a): that is associated with a notable Australian or an event of significance in Australian military history; or
(b): that is an outstanding example of Australian technological development, invention or industry capability in the military field.

and that was made, or has existed since a time, not later than 1920.

2A.

This category also includes any Victoria Cross won by an Australian after 1920."

It thus appears that Major Towner's VC falls within two categories in Part VII, and his MC within at least one.

10. Section 10 sets out the procedures to be followed in relation to an application for a permit to export a Class B object, and also the matters to be considered when determining whether such a permit should be granted.

"10. (1)

A person may apply to the Minister for a permit to export a Class B object.

(2)

An application shall be made in writing in the prescribed form, or, if no form is prescribed, the form approved by the Minister.

(3)

On receipt of an application, the Minister shall refer it to the Committee and the Committee shall refer it to one or more expert examiners.

(4)

The expert examiner or examiners shall submit to the Committee a written report on the application, and the Committee shall forward the report to the Minister together with the written recommendations (if any) made by the Committee.

(5)

The Minister shall consider the report and recommendations (if any) and:

(a): grant a permit to export the Class B object concerned, subject to such conditions (if any) as the Minister specifies; or
(b): refuse to grant a permit.

(6)

In considering the application, an expert examiner, the Committee and the Minister:

(a): shall have regard, among other things, to the reasons referred to in subsection 7(1) that are relevant to the object to which the object 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." (sub-section 10(6))

(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."

A permit granted under section 10 comes into force on the day on which it is granted and remains in force indefinitely unless the permit specifies a certain period (section 11).

HISTORY OF THIS APPLICATION

11. Mr Truswell made his application to the Minister on 25 March 1994. In accordance with subsection 10(3) the Minister referred it to the Committee, which in turn referred it to three expert examiners; Mr Staunton, Mr Burness and Major Billett. Two of them, Mr Burness and Major Billett, recommended that a permit be refused. Mr Staunton recommended that it be granted. After considering the expert reports, the Committee recommended to the Minister on 9 August 1994 that a permit be refused. On 22 August 1994 the Minister wrote to Mr Truswell declining to grant a permit. The reasons given were as follows:

"The VC medals group awarded to E T Towner is a material reminder of the specific events surrounding its award: the historically significant action by Australians at Mont St Quentin in September 1918. As such, it is of substantial cultural significance to the nation.

The recipient, E T Towner, remains the most highly-decorated serviceman from Queensland and the medal can consequently be considered to be of substantial cultural significance to that region of Australia.

Two out of the three expert examiner reports sought clearly indicated that the cultural heritage of Australia would be significantly diminished by the export of this object. Hence the weight of professional advice requested by the Committee's strongly favoured retention of the object in Australia."

FACTUAL BACKGROUND

12. The parties were in general agreement as to most of the facts of this matter. The main area of disagreement centred upon the conclusions that could be drawn from those facts. In the following paragraphs, we set out the findings of fact that we have made on the material before us and on which there was no disagreement between the parties.

Major Towner's Medals and Decorations

13. Major Towner was awarded the following medals and decorations:

•: Victoria Cross (1918)
•: Military Cross (1918)
•: 1914-15 Star (DVR, 25Bn)
•: British War Medal 1914-1918
•: Victory Medal (1914-1918 (with two MID emblems)
•: British War Medal 1939-1945
•: Jubilee Medal 1937
•: Coronation Medal 1953

14. There was no dispute between the parties that the VC and the MC awarded to the late Major Towner are Class B objects. The VC was awarded in relation to the attack on Mont St. Quentin in September 1918 and the Military Cross earlier in June 1918 at Morlancourt. The remaining medals and decorations are not regulated by the Act, but all Major Towner's medals and decorations have always been treated as a group.

The Victoria Cross

15. Evidence about the VC was contained in an extract from a book entitled "The Evolution of The Victoria Cross" by M J Cook (Midas Books). The following findings of fact are based upon that extract and upon the evidence of the expert examiners.

16. The VC was founded by a Royal Warrant in 1856 and was to be awarded to members of the Royal Navy and British Army who, serving in the presence of the enemy, had performed some single act of valour or devotion to their country. Over the years, further Royal Warrants enlarged the scope of the award but the overriding criterion was that the person had shown conspicuous bravery. It could not be awarded in any other way and so such matters as rank, length of service and wounds were irrelevant. It has been extended to include the Royal Air Force and matrons, sisters and nurses serving under the orders, direction or supervision of military authorities. It may be awarded posthumously.

17. The VC was adopted by Australia as part of the Commonwealth Awards. The "Victoria Cross for Australia" was introduced in 1991 and is:

"... the highest decoration for according recognition to persons who, in the presence of the enemy, perform acts of the most conspicuous gallantry or daring or pre-eminent acts of valour or self-sacrifice or display extreme devotion to duty ..." (Letters Patent, 15 January 1991, Commonwealth of Australia Gazette, No S25, 4 February 1991, Exhibit 1, pages 87- 88)

18. This pre-eminence is confirmed by it ranking first in the list of honours and awards in the Australian Order of Precedence of Honours and Awards (Commonwealth of Australia Gazette, No S26, 4 February 1991, Exhibit 1, pages 98-100).

19. Under section 103 of the Veterans' Entitlements Act 1986 ("the VE Act"), a person may be granted a Victoria Cross allowance amounting to $250 per year. That allowance is in addition to the decoration allowance of $2 per fortnight payable to those veterans who receive a disability pension under the VE Act. The decoration allowance is paid for a number of decorations awarded for gallantry during a war to which the VE Act applies or during warlike operations and includes the VC and the Military Cross ("MC"). Payments of both the VC allowance and the decoration allowance are exempt under the Income Tax Assessment Act 1936.

20. Ninety one members of what would now be called the Australian Defence Force ("the ADF") have been awarded the VC in respect of operations in South Africa, World War I and World War II and in the Vietnam War. Sixty three of these related to World War I. Major Towner's VC was one of these 63.

21. In addition to the 91 Australian medals, as to which there is no dispute, a further five are regarded by many as being Australian awards. Another 19 recipients have an Australian connection - two were born in Australia and 17 died in Australia. The 91 VC awards which are indisputably Australian, constitute a very small percentage of the total of 21,329 awards made for gallantry to members of the ADF. This figure of 21,329 does not include non-operational awards such as the George Cross, the George Medal or the Order of the British Empire.

22. Fifty of the VCs awarded to members of the ADF are held by the Australian War Memorial ("the AWM") and 17 by some other public institution. Another 4 awarded to those with an Australian connection are held by the AWM. One, which was the first Army VC was awarded by Queen Victoria at the inaugural presentation of the award and which has no connection at all with Australia, is held by a public institution in Australia.

23. Those held by the AWM are displayed in the Hall of Valour and represent the largest collection of VCs in the world. The Hall of Valour also houses displays of other gallantry awards made to Australians. It has examples of most medals won by Australians in most conflicts.

Major Edgar Thomas Towner

24. Details of the life of Major Towner are set out in the "Australian Dictionary of Biography, Volume 12: 1891-1939" (Melbourne University Press) (Exhibit 1, pages 201-203) and in "They Dared Mightily" edited by Lionel Wigmore (AWM) (Exhibit 1, pages 204-207). Further material is contained in a video "What Price Valour?" (Film Australia) (Exhibit 4).

25. Edgar Thomas Towner was born on 19 April 1890 at "Glencoe" Station, near Blackall, Queensland. He enlisted as a Private in the Australian Imperial Force (AIF) on 4 January 1915, was allotted to the 25th Battalion, and embarked for the Middle East in June 1915. He was promoted to Sergeant on 1 February 1916 and the following month sailed for France where he served with 25th Battalion until his appointment as 2nd Major on 18 November 1916. He was then posted to 7th Company, 2nd Machine Gun Battalion. On 24 February 1917 he was promoted to Major. He was mentioned in despatches on 3 March 1917, and again on 4 March 1918.

26. Major Towner was awarded the Military Cross "For conspicuous gallantry and devotion to duty" for an action at Morlancourt, France, on 10-11 June 1918, as a member of 2nd Machine Gun Battalion. Details of promulgation of the award and the full citation are contained in Department of Defence Base Records Office AIF letter of 26 February 1919 (Exhibit 1, page 191).

27. Major Towner was awarded the Victoria Cross "For most conspicuous bravery, initiative, and devotion to duty" for an action on 1 September 1918 at Mont St. Quentin, near Peronne, France, again as a member of 2nd Machine Gun Battalion. A short version of the citation was promulgated in the London Gazette on 14 September 1918 (see "They Dared Mightily", Exhibit 1, page 205).

28. Major Towner returned to Australia in April 1919, and his AIF appointment ended on 16 August 1919. He thereafter gradually established himself as a grazier in the Central Queensland area of Isisford-Longreach.

29. With the build up of Citizen Forces prior to World War II, Edgar Towner was appointed to the 26th Battalion on 8 August 1937 with the rank of Captain. After a period as Company commander he became Second-in-Command of the Battalion and was promoted to Temporary Major. He retired from the Army on 21 February 1942.

30. Major Towner was a well respected member of his regional community. He had an active interest in Australian history and geography, being especially interested in the explorations of Sir Thomas Mitchell. He was instrumental in the Commonwealth issuing a postage stamp in 1946 to commemorate Mitchell's work in Central Queensland. He was a Fellow of the Royal Geographical Society of Australasia (Qld) and in 1956 received its Dr Thomson Foundation Gold Medal for his geographical work.

31. He died in 1972 and was buried with full military honours. As the holder of the Victoria Cross, the Military Cross, two MID emblems, and a Croix de Guerre 1914-1918 bestowed by the French Government, Major Edgar Thomas Towner VC MC is one of Australia's most highly decorated heroes.

The Battle during which Edgar Towner was awarded the VC

32. Detailed accounts of the attack and capture of Mont St. Quentin by the 2nd Division on 31 August/1 September 1918 are contained in extracts from "Anzac to Amiens: A Shorter History of the Australian Fighting Services in the First World War" by C W W Bean (Exhibit 5). "The Broken Years: Australian Soldiers in the Great War" by Bill Gammage (Exhibit 6) and "The Official History of Australia in the War of 1914-1918, Volume VI, the AIF in France; May 1918 - the Armistice" by C E W Bean (Exhibit 1, pages 221-223).

33. By 29 August 1918 the Australian Corps had driven the Germans back across the Somme River in the region of Peronne. Mont St. Quentin "... rising two miles beyond the river bend, and looking down on the old turreted, ramparted and moated city of Peronne at its southern foot, was the recognised key of that position." ("Anzac to Amiens" by C E W Bean, pages 479-480, Exhibit 5).

34. The circumstances of the event are well described by Gammage ("The Broken Years", pages 201-202, Exhibit 6):

"Known along the Western Front for its thick wire and extensive trench system, the mount was protected by long, open slopes, by a canal near its foot, and at this time by selected volunteers from German Guards divisions. The Australian battalions were worn by ceaseless effort, and some had been reduced by battle to fewer than 100 men. They knew their enemy on the mount outnumbered them, and that British policy was not to attack the place, yet they responded willingly when Monash sent them against it. On 29 and 30 August Second Division infantry cleared the mount's approaches after severe fighting, and on the following day attacked the slopes and the summit. Within a few hours most of the enemy's position and 2600 prisoners, half of them from one of the ablest German divisions in France, had fallen into their hands. By 2 September a hard fight had won Peronne, and once more the German Army was obliged to seek safety in flight."

35. The capture of Mont St. Quentin and Peronne is described by C E W Bean as a "... brilliant action, in which, without tanks or creeping barrage, the Australians at a cost of 3,000 casualties dealt a stunning blow to five German divisions ..." (Ibid page 483). He further described it as "... one of the few effective manoeuvres within Australian experience on the Western Front". (Ibid, page 479.)

36. The expert examiners agreed with the view that "the capture of Mont St. Quentin was an outstanding feat of arms by the 2nd Australian Division" (statement by Mr Staunton, Exhibit C, page 5). Both Mr Staunton and Major Billett noted that after the War, 2nd Division, which had fought at Gallipoli and throughout the battles on the Western Front until the final actions of the AIF in the War, selected Mont St. Quentin as the location for its divisional memorial. Major Billett stated that the battle of Mont St. Quentin represents "a most significant event in Australia's military history" (Exhibit 1, page 187). Mr Staunton pointed out in his statement that "The Department of Veterans' Affairs focused on Mont St. Quentin in the pilgrimages that were organised in 1993 to commemorate the 75th anniversary of the 1914-1918 War (Exhibit C, page 5).

37. In the Official History, volume VI, page 878, C E W Bean makes the observation:

"The capture of Mont St Quentin and Peronne is held by many Australian soldiers to be the most brilliant achievement of the AIF." (Exhibit 1, page 197.)

In his oral evidence, Mr Staunton expressed support for that assessment.

38. With regard to the specific action for which Major Towner was awarded the VC, no better description can be given than that of the complete citation. The citation reads as follows:

"On 1st September 1918, in the attack on Mont St. Quentin, near Peronne, this officer was in charge of 4 Vickers guns operating on a front of 1500 yards. During the early states of the advance an enemy machine gun was causing casualties to our advancing infantry. Locating the gun, Major Towner dashed ahead alone and succeeded in killing the crew with his revolver, capturing the gun, and then turning it against the enemy inflicting heavy casualties on them. Advancing then past a copse from which the enemy were firing, he brought his guns into action, placing his fire behind the enemy and cutting them off. On their attempting to retire before the advancing infantry, and finding they were prevented by this machine gunfire, the party of 25 Germans surrendered.

He then reconnoitred alone over open ground exposed to heavy machine gun and snipers fire, and by his energy, foresight and the promptitude with which he brought fire to bear on further enemy groups, enabled the Infantry to reach a sunken road.

On moving his guns up to the sunken road, he found himself short of ammunition, so went back across the open under heavy fire and obtained a German gun and brought it and boxes of ammunition into the sunken road. Here he mounted and fired the gun in full view of the enemy, causing the enemy to retire further and enabling Infantry on the flank, who were previously held up, to advance. Enemy machine gunners having direct observation flicked along the top of the bank. Though one bullet went into his helmet and inflicted a gaping scalp wound he continued firing. Subsequently he refused to go out to have his wound attended to as the situation was critical and his place was with his men.

Later in the day the infantry were obliged to retire slightly and one gun crew with the first wave, having became (sic) casualties, the gun was left behind. Major Towner seeing this dashed back over the open, carried the gun back in spite of terrific fire and brought it into action again. He continued to engage the enemy wherever they appeared and put an enemy machine gun out of action.

During the following night he insisted on doing his tour of duty along with other officers, and his coolness and cheerfulness set an example which had great effect on the men.

To steady and calm the men of a small detached outpost, he crawled out among the enemy posts to investigate. He remained out about an hour though enemy machine guns fired continuously on the sector and the Germans were moving about him. He moved one gun up in support of the infantry post and patrolled the communication saps which ran off this post into the German line during the remainder of the night.

Next morning, after his guns assisted in dispersing a large party of the enemy, he was led away utterly exhausted, 30 hours after being wounded.

The resourcefulness and courage of this officer undoubtedly saved a very difficult situation and was a very large factor in the success of the attack." (Australian Archives Canberra, Series Victoria Cross, Item Edgar Thomas Towner, Exhibit 1, pages 188-190.)

Issy Smith and his Victoria Cross

39. It is necessary here to mention another VC winner, Issy Smith. His significance in this case arises from the fact that Mr Truswell had earlier sought and obtained a permit to export Mr Smith's VC. It was strongly urged on Mr Truswell's behalf that there was no significant difference between Mr Smith's VC and Major Towner's medals. Accordingly, it was contended that, a permit having been granted in one case, there was no coherent reason why it should not be granted in the other.

40. Issy Smith was born in Egypt in 1890. His parents were French citizens. At the age of 11 years, he left his parents and Egypt and went to London where he worked and attended school. In 1904 while he was still 13 years of age, Mr Smith enlisted in the British Army where he joined the Manchester Regiment. He served in South Africa and in India. After being discharged in 1912, Mr Smith migrated to Australia and worked for the Metropolitan Gas Co in Victoria.

41. In 1914, less than two years after he had arrived in Australia, Mr Smith was recalled for war service with the Manchester Regiment. He was awarded the VC for gallantry on 26 April 1915 during the 2nd battle of Ypres in Belgium. At that time, the Manchester Regiment was "under a perfect inferno of shot and shell" when Mr Smith ran towards the enemy lines to assist a severely wounded man whom he carried 250 yards to safety (Exhibit B, page 44). Later that day he brought many men to safety and did so under heavy machine gun and rifle fire. He was awarded the Tsarist medal of St. George (4th class) for rescuing Russian soldiers and was also awarded the Croix de Guerre.

42. This battle took place a year before Australian troops started to arrive on the Western Front.

43. Mr Smith married in London in 1919 and returned to Australia in 1925. He worked in various positions in the private and public sectors during the following years. In addition, he became a Justice of the Peace and regularly sat at the City Court. In 1931, he stood for election for the Federal seat of Melbourne but was unsuccessful. He died in Victoria in 1940.

44. The VC awarded to Mr Smith is not counted among the 91 regarded as Australian and, indeed, is not counted among the additional 5 regarded as Australian awards (see paragraph 22 above). If he were to be listed among the 91, he would displace Mr Albert Jacka as the first Australian to be awarded the VC during World War I - a proposition which the expert witnesses regarded as entirely unacceptable. Mr Smith has been listed among the additional 19 who are regarded as having an Australian connection.

45. Mr Smith's VC was never on public display in Australia. It was sold to Mr Truswell who was granted a permit under the Act on 27 April 1995. The expert examiners appointed by the Committee on that occasion, being the same three examiners as were consulted in this case, were unanimous in their recommendations that Mr Truswell be granted a permit.

THE EVIDENCE

Mr Anthony Staunton

46. The first witness before us was Anthony Staunton, a Project Officer in the Department of Veterans' Affairs who has written extensively in the field of medals and decorations and their recipients. He was made an Honorary Fellow of the AWM in 1994 and is a member of the Military Historical Societies in Australia and the United Kingdom. He was instrumental in the location and restoration of the grave in Dorset of Sapper Bell, who was the first Australian born VC winner.

47. Mr Staunton had recommended in his report that an export permit be granted, saying that the export of Major Towner's medals would not result in a significant cultural loss to Australia. The reasons he gave were as follows:

"Unlike a painting or a sculpture there is nothing intrinsically Australian in a Victoria Cross. It is merely a symbol of an happening, the reward given to a brave man who distinguished himself in the horrors of war. The momento itself is not important, what is important is the (sic) what it symbolises. We are fortunate in this country to have so many on display, particularly in Canberra. I personally would like to see all Australian VCs on permanent display but it would be wrong to misuse this Act to pretend there was some cultural significance for preventing the Towner VC group leaving Australia when in fact the only argument for its retention is purely emotional.

The high price realised at recent sales (Wheatley's VC last year and Nancy Wake GM this year) have had the effect of revaluing the price of Australian medals upwards. This may not be a good thing in the long term since it could lead to more medals coming onto the market and eventually finding their way overseas. An auction of an Australian VC group in London without RSL emotional comments may not realise the prices paid in Australia and help deflate expectations."

48. In his statement Mr Staunton pointed out that two thirds of every category of VC is held by a public institution in Australia. Most of them are in the Hall of Valour at the AWM. No one could seriously suggest, he said, that all VCs should be held by the AWM. Nor is there any real reason why all of them should be in public collections.

49. As for the capture of Mont St. Quentin, Mr Staunton described it in his statement as "an outstanding feat of arms" which has always been highly regarded by military historians. However it has never, he said, captured the interest of Lone Pine, Tobruk or the Kokoda Trail - let alone Gallipoli - in the public mind. He continued: "The AWM has 2 of the 3 VCs won in that action (Mont St. Quentin) and I am not confident that obtaining the third will excite the public imagination".

50. Finally, Mr Staunton in his statement disputed the proposition (contained in the Minister's reasons) that Edgar Towner was the most highly decorated serviceman from Queensland. He pointed out that the most decorated Australian, H W Murray, spent most of his life in Queensland. Mr Staunton said he had never heard of Mr Towner described as the most decorated Queenslander. Nor, for that matter, could he recall any VC recipient being labelled as the most decorated Victorian, South Australian, etc.

51. In his evidence Mr Staunton agreed with Mr Logan that the VC is the supreme Australian award for gallantry, having an almost mystical quality. It is, he said, a source of inspiration for present and future members of the Australian Military Forces. Every VC is unique, all of them (with one exception) being associated with a particular feat of bravery. VC recipients tend to be regarded with great respect in the community for the rest of their lives.

52. Mr Staunton expressed strong support for the AWM having all its VCs in the Hall of Valour. Indeed he regards the AWM collection as "an outstanding, extraordinary, unrivalled display" (Transcript p. 23). He was emphatic in his evidence that the export of all VCs would significantly diminish our cultural heritage. However he said that we now have so many VCs in our public collections that the loss of "one here or there" would not make the national collection any the less. He expressed concern that the Act might inhibit the free flow of VCs, in that Australian collectors might be deterred from buying them overseas and bringing them back to Australia.

53. The memory of Edgar Towner will, Mr Staunton said, live on whether or not his medals are exported. Moreover from the point of view of an individual researcher, it is unnecessary to see the particular medal. "I've been writing articles all my life on the VC", he said, "and I haven't had to have it in front of me to give recognition to that". It follows, Mr Staunton said, that it would make no difference (assuming that Mr Towner's VC was brought by a collector rather than an institution), whether it was in a locked safe in Queensland or a locked safe in London. He added, however, that he personally would like to see it go to the AWM.

54. Mr Staunton said that if an export permit were granted in relation to Major Towner's VC he hoped that "there would be an almighty fuss and the money would be found for it to be bought in Australia". (Transcript p. 30.) If this did not occur and it left Australia, then it would almost certainly be bought by a collector rather than an institution. It would then be in safe hands, and would probably in due course, find its way back to Australia.

55. As to the capture of Mont St. Quentin, Mr Staunton described it as one of the finest feats of arms by the Australian Forces, particularly the second Division, in the First World War. He said there is no debate about this amongst military historians, and it has always had a high profile within the veteran community. Unfortunately, "it still hasn't got the public awareness that it really deserves". (Transcript p. 26.)

Major Bill Billett

56. Major Royston Stanley (Bill) Billett has, since his retirement from the Australian Army, taken up the position of Senior Curator, Arms and Art, at the Museum of Victoria. He holds a Master of Arts Degree in history. Prior to his service in the Australian Army, Major Billett served in the Royal Marines.

57. Major Billett had recommended in his expert examiner's report, that the medals not be exported. He repeated this in his statement (Exhibit 1, pages 185-191). He said in his report that of the 66 Australian recipients of the VC during World War I, only 4 were Queenslanders. Major Towner enlisted in Queensland. He is the most decorated Queenslander from the First World War. This is significant in itself but his VC is of outstanding significance because of the location and operation for which it was awarded. The capture of Mont St. Quentin was the AIF's most brilliant achievement of the First World War. He continued:

"The award of the VC was made personally to an Australian by the Sovereign for valour in an action by an Australian military formation in the service of the Empire. Within Australia, these awards are the tangible, visible, reminders of the nation's record of bravery in war. Outside Australia, in some foreign collector's cabinet, they are no longer accessible to the nation that bred the soldiers, sailors and the airmen that earned them. It is also the policy of the Returned and Services League that VC's should not be exported." (Exhibit A, page T4.)

58. Major Billett said that there could be no direct comparison between Major Towner and Issy Smith for Mr Smith was born in Egypt, won his VC in 1915 while serving with a British Regiment and did not permanently migrate to Australia until 1925.

59. During his oral evidence Major Billett was asked what value he saw in the VC in terms of its value to a museum. He said:

"Well, it's like a primary source document; it is - it is - the object is very important. The medals, the trophies brought back, the war relics from the battlefields all add to our stock of what we collectively call our national history, and the very importance of the First World War was that there were certain breaks made with old traditions. The AIF went over in such numbers that they were not prepared to put up with the traditional imperial system. C E W Bean forewarned the Australian Parliament in 1918 that there was a move in England to continue the old system of taking all the war trophies back to England and then determining what they were going to ration out to the dominions, as they had done in the Crimea, as they had done in the Boer War - the South Africa wars. And Bean forewarned the Parliament and said that, `Britain's got its history. We are now making ours'. So all of these trophies from the First World War - and I would include the Victoria Crosses and the individual medals as well - they are all adding to our stock of what we call our history and our military heritage. So from that point of view, yes, they're extremely valuable." (Transcript, page 45.)

60. Major Billett described his early experiences upon joining the Royal Marines as a 14 year old drummer. Within the first three weeks, he was taught the military history of the Corps and the place of the Corps' 11 VCs. He learned about the circumstances in which each VC was won. He also learned the other side of the VC; that is to say the cost of the VC and particularly of a posthumous VC to the families of those winners.

Mr Peter Burness

61. Mr Peter John Burness is the Senior Curator of Military Heraldry and Technology at the AWM in Canberra. He holds a Degree of Applied Science in the field of Cultural Heritage Management and has been with the AWM for 22 years.

62. Mr Burness had also completed an expert examiner's report in which he had recommended that the VC not be exported. He referred to its significance in terms of the remarkable respect and devotion which Australians have consistently shown to the VC and its recipients. It is the supreme award for gallantry and takes precedence over all other awards both civil and military places. Mr Burness added to this in his written statement when he said that:

"The cross itself is the material evidence of an act of supreme bravery performed in the most adverse circumstances. It is not only a recognition extended to an individual but it is evidence of the community's value of courage as a human ideal." (Exhibit 1, page 194.)

63. Later in his statement, Mr Burness alluded to the history of Mr Towner's VC:

"Australians respect for the Victoria Cross was demonstrated in 1983 when Edgar Towner's Victoria Cross was offered at auction. Such sales in Britain raise little public interest, but in Australia there is usually an outcry against the commercialisation of the award and the possibility of an Australian Victoria Cross being sent overseas. At that time this was well demonstrated by the Government rushing through legislation to prevent the medal's possible export. The sale was followed by a Film Australia documentary with the (sarcastic) title of `What Price Valour?'"

64. As to Mr Towner himself, Mr Burness made the following observation:

"Even among Victoria Cross exploits the awards of Edgar Towner are remarkable. He not only received the Victoria Cross, but he was also awarded the Military Cross and was twice mentioned in dispatches. This places him firmly among the foremost of the nation's military heroes."

65. Mr Burness said in his oral evidence that it is the AWM's view that Australian VCs should remain in the country as they are part of Australia's cultural heritage and part of its value standards. They have an importance to Australia and to allow them to leave the country would open up the possibility of their being simply lost.

66. The AWM houses the VCs in the Hall of Valour. He said, that it is part of Australian culture that people want to see VCs housed in the same institution that houses the Tomb of the Unknown Soldier and its Roll of Honour. He knows of nowhere else in the world where that connection exists and thinks it probably reflects our attachment to the VC. There is always public and media interest when the AWM receives another VC. The AWM has a policy that it will not purchase VCs. It fears that to do so may encourage their commercialisation. Despite that, it has 54. If Major Towner's VC were to be exported, there would be no diminution of the value of the Hall of Valour but there would be a loss to Australia.

67. Mr Burness said that 66 VCs were awarded to Australians during World War I. That is a very small number when it is remembered that Australia sent 300,000 men overseas and of those 63,000 died. Another 100,000 were enlisted.

68. As to the battle of Mont St. Quentin, Mr Burness said that it was one of a series of events that broke the back of the German attack and led to their retreat behind the Hindenberg line. It was a "critically important" event in the last months of World War I.

69. Mr Burness noted that the diorama for the battle of Mont St. Quentin was the oldest of the dioramas on display at the AWM. The design for that diorama was prepared before the troops came home from World War I and was displayed in Sydney and Melbourne before the AWM was built.

70. Mr Burness said that Issy Smith served with the Manchester Regiment in a battle in and around Ypres in 1915. This battle has no significance in Australian military history and Australians were not present at it. According to Mr Burness Issy Smith has never been adopted by Australia as an Australian. The lack of public interest in his VC illustrated that. This can be contrasted with the interest which was generated when Major Towner's medals were auctioned and Film Australia produced the video, "What Price Valour?" - (Exhibit 4). The video is still available in the AWM's bookshop.

71. It was regrettable, Mr Burness said, that Issy Smith's VC had left Australia. Those at the AWM considered that it fell outside the criteria for retention. Had it gone to the AWM, it would have been displayed in the Hall of Valour but not in the same manner as the Australian VCs.

Major General "Digger" James

72. Major General William Brian ("Digger") James is the National President of the Returned Services League of Australia ("the RSL"). He had prepared a written statement (Exhibit 1, pages 168-172) which he said was representative of the views of the RSL.

73. In his statement, Major General James said:

"There have been 96 Victoria Crosses awarded to Australians, covering the period from the South African War to the Vietnam War. The AWM holds 54 in a marvellous display in the `Hall of Valour'. The Victoria Cross is therefore quite unique, as it is for all ranks, and in the Australian ethos, is seen as a military symbol of incredible bravery in the service of our country, and to the serviceman and ex-serviceman is seen unquestionably as our most treasured possession. It is for this reason, that the RSL has seen fit to be very involved in trying to obtain in Australia those VC's awarded to an Australian and retaining not only for Australia but for all future Australians. It is seen as a fundamental rock in our heritage.

For many years the RSL has had a policy that, where possible, those VC's awarded to an Australian be retained in Australia, and the RSL has been instrumental in the case of ten whereby the medal has been acquired and presented to the AWM for retention in that unique location, which was developed and dedicated to Australia to commemorate those who served, and in particular, those who died in War." (Exhibit 1, pages 168-169.)

74. Major General James concluded his statement with the following observations:

"In conclusion, the history of Australia is but a short history. It is only a few years ago that we celebrated our bi- centenary, but in that short period of time we have gained a reputation in many areas, but none greater, I don't believe, than our military exploits. I can do no better than to quote from an eminent historian, Dr Jeffrey Gray from his book `A Military History of Australia'"

`Australians are not militaristic people, yet, perhaps paradoxically, we have been best known in the wider world for the quality of our soldiers and our willingness to send them overseas in causes not directly our own. In so far as Australia has influenced the course of events on the world stage, it has been on the battlefield. In so far as Australians observe a national day, that day is not Australia Day, the anniversary of our foundation as a settler nation in January 1788, but Anzac Day, the anniversary of our first great military exploit in April 1915.

The impact of war on Australian history is even more marked when we turn to examine individual wars. The Great War gave conscription for overseas service an enduring emotional and political dimension which it lacks in Britain or America. The Second World War influenced subsequent events even more laying the foundations of the modern Australian economy, altering Australia's relations with Britain, setting the stage for the diplomatic and strategic relationship with the United States, bringing large numbers of women into the workforce for the first time, and leading to the great post war programmes of assisted immigration.

Closer to the present day, the Vietnam War destroyed a long political census (sic) on defence and foreign policy and radicalised the form and some of the substance of the domestic political process.'"

75. Major General James went on to quote paragraph 4(c) of the Memorandum of Association of the RSL, which states:

"The objects for which the League is established are ... to preserve the memory and records of those who suffered and died for the Commonwealth of Australia (herein referred to as `The Nation') - to erect monuments to their valour - to provide them with suitable burial places, to establish and preserve, in their honour, the annual commemoration day known as `Anzac Day'".

He concluded by saying that he saw this object as very clearly applying in the situation referred to in this appeal.

76. In his oral evidence, Major General James said that the RSL does not have a fixed view about whether gallantry awards should be held in the AWM. While the AWM is an ideal repository, the RSL believes only that they should be held in a public place and by a public institution. So, for example, the RSL has recently assisted the Cowra City Council to purchase at auction the George Cross collection of Private Jones. Private Jones had been awarded the George Cross for bravery during the Cowra outbreak.

77. Major General James said that it has become clear to him from his work as a member of the Committee of Inquiry into Defence and Defence Related Awards that Australia has not been generous in the conferral of service awards when compared with other countries.

78. In giving his evidence, the following exchange took place between Mr Logan and Major General James:

"... so in terms, then, of those who might now be in military service or in the future in military service in this country, is there any particular value that you can see, drawing on your own experience in the armed forces, that one might attach to having these particular medals in Australia?--Yes, I do, and I think it exemplified the feeling of Australia - people of Australia, young and old, I think was exemplified this year when we have just completed the 12 months of Australia Remembers and we've had ceremonies all around Australia which commemorated those who served in World War 2, 50 years ago. And I think that demonstrated pretty clearly to me, and I suspect to most people, that the attitude of the Australian population is one of high regard for those who served to defend our country. And the medals that were awarded as a result of that service would be held in the very highest regard. That is why I see the medal, such as the Towner collection, as being one that would inspire loyalty and a deep sense of duty to our country forever, actually. I see it was a focal thing of being a good Australian, being an outstanding Australia[n]." (Transcript page 40.)

79. Major General James said that it would make no difference to the RSL's policy of opposing export if it were known that the family of a VC winner or the owner of a VC were to suffer financial loss as a result of their inability to export the VC. He continued:

"... I have a view that we Australians, you and I and all in this room, indeed, have a responsibility to maintain our heritage, and I see this as one of the very important things. And perhaps I can compare it with the concerns that we have with our environment now, and we are all, I am sure, unhappy that our forefathers in some way damage our environment and we are now rapidly trying to correct it. I'd like to be part of the group and be quite upright and say that we don't want to damage our heritage in regard to VCs, and therefore I think it's quite wrong that we should ever allow the possibility of them being perhaps go to a private collection, and then one could extend that - the possibility does exist that they could disappear forever and I think we owe it to the people of Australia, and that would be the view of the RSL. We owe it to the people of Australia and our future generations that we retain the good things. Whether they are displayed publicly in Australia all the time, that's another question. But to have them for the generations to follow I think is quite vital, and I suppose you could get biblical and talk about the Robe, things like that, which have a similar parallel. But that would be my view." (Transcript pages 42-43.)

Mr Jeffrey Towner

80. Mr Jeffrey Ferguson Towner is the nephew of Major Towner. His father, Gresley Edgar Towner, was Major Towner's brother.

81. When Major Towner died, he left all his medals to his sister, Mrs Clara Walker Haven. The co-executors of the will were Mr Towner and another nephew, Mr Randal Watts. A copy of the will and codicil was annexed to the statement of Mr Watts made on 17 November, 1995 (Exhibit 3). For reasons of which Mr Jeffrey Towner was unaware, Mrs Haven handed the medals to his (Mr Towner's) father soon after Major Towner's death. Mr Towner did not own the medals but nevertheless sold them, without Mrs Haven's consent, and without consulting her or any other family member, to a South Australian collector for $5,000.

82. Mr Jeffrey Towner said that he is still unaware why the medals were sold by his father. His father did not need the money but he had suffered a stroke in 1974 which had made him a completely different person from the one he had been before. Mr Jeffrey Towner's father was fiercely proud of the medals but refused to discuss his reasons for selling them. The sale had caused a great deal of anguish in the family, all of whom consider that Mr Towner had no authority to sell the medals and would not have done so had he been exercising sound judgment at the time.

83. Mr Towner had entered an agreement with Mr Truswell to purchase the medals for $150,000 but had been unable to raise the funds.

THE SUBMISSIONS

84. Both Mr Trungove and Mr Logan made very comprehensive submissions. We will attempt in this section to summarise only the essence of them.

85. Mr Trungove pointed out that, of the 96 VCs awarded to Australians by birth or by residence, 63 were awarded for deeds during World War I. Eight VCs were awarded for deeds at Peronne and Mont St. Quentin, three of them being for deeds at Mont St. Quentin. Although well documented, these actions have never been given public recognition of the sort given to actions at Gallipoli, Tobruk or the Kokoda Trail.

86. While special respect is accorded to winners of the VC, Mr Trungove submitted that this special status comes from the winner himself rather than from any focus on heroic deeds. All actions of all servicemen, he said, are unique. And while each VC is unique in its symbolic sense, the object itself is not at all so.

87. The rarity of the object under consideration is always relevant (see Re Best and Minister for the Arts and Administrative Services (1994) 36 ALD 343 at 355. There are, however, many similar objects (ie VCs in medal groups) in public collections in Australia. Mr Trungove submitted that there was a lack of enthusiasm to increase those collections. That lack of enthusiasm indicated a satisfaction with the existing collections as well as a knowledge that the esteem in which VCs are held will lead to their being donated in the future.

88. As there are over 50 VCs in the AWM and another 12 or so in other public institutions in Australia, Australia's cultural heritage will not be diminished if Major Towner's medals were exported. It is apparent from the Tribunal's decision in Re Hawkins and Minister for Communications and the Arts (1995) 38 ALD 323 that there must be more than a minor diminution of cultural heritage if it is to be significant within the meaning of paragraph 10(6)(b) of the Act.

89. Mr Trungove argued that the effect of the respondent's submissions was that all VCs should be kept in the country, in effect making them Class A objects rather than the Class B objects that they are. If it had been intended that they should be Class A objects then Parliament would have provided accordingly. It follows that VCs should not be treated as a group. Considered individually, the loss of one medal would not significantly affect Australia's cultural heritage.

90. With regard to Issy Smith's VC, Mr Trungove pointed out that Mr Smith was domiciled in Australia at the time of his enlistment and returned to Australia after the war. Australia is a place of people from many and diverse cultures he said. These people would be appalled not to be regarded as Australian because they were not born here.

91. Mr Trungove referred to the Parliamentary debate during the presentation of the Bill. It was recognised, he said, that the Act creates a balance between the individual's rights and the nation's interests (Exhibit 1, page 119). Those who have purchased heritage items have the opportunity to make a gain from them and in the normal course of events they are entitled to do that. A number of safeguards are adopted in the legislation. The right of owners of heritage objects to seek review of a decision to refuse a permit is one of them. The provision in the legislation for the establishment of a National Cultural Heritage Fund ("the Fund") is another. The fact that the Fund has not been established is not, however, a reason for refusing a permit (see Hawkins). In the final analysis, if the export of an object will significantly diminish Australia's cultural heritage then a permit will be refused. In Mr Trungove's submission the export of a single VC would represent no significant threat to Australia's cultural heritage.

92. Mr Logan submitted that the cases decided to date have established a number of propositions. The cases of Best and Re Blake and Brain and Minister for Communications and the Arts (1995) 38 ALD 333 tentatively establish that there is a two stage process to be undertaken. First, one must look to whether the object under consideration is important to Australia for reasons referred to in sub-section 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. At a practical level, Mr Logan said, the case of Best noted that the two steps were inextricably intertwined. In Blake, however, it was pointed out that not every object of importance should be prohibited from export, perhaps indicating that the process is a two step one.

93. 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. A long view needs to be taken under the Act. It is the potential of an object which is relevant.

94. The case of Hawkins confirmed that the legislation is concerned with long term issues. Short term considerations will only be relevant if there is a risk of the object being allowed to deteriorate.

95. Hawkins also established that the Australian public is intended to be the beneficiary under the Act and not the individual. While an object stays in Australia it remains potentially available for public display, but if it leaves then that potential is lost.

96. Blake illustrated that once an object was included in the list of controlled objects, all aspects of significance may be considered regardless of when the particular significance arose. The absence of the Fund can be a relevant consideration, but only where there is a potential for decay. If, for example, the best way of preserving a potentially decaying object (given that there is no Fund) is to export it to a person who can and will preserve it, then the need to preserve it might outweigh the loss of the object to Australia. As long as the object is preserved, there is always the potential for its return. However the fact that a better price may be obtained overseas is of little or no weight.

97. While the VC medal itself is intrinsically worthless - it is nothing more than a piece of gunmetal with a coloured ribbon - it cannot be divorced from its emotive qualities. Both the VC and the MC acquire their worth from the factors that make them appeal to the emotions.

98. Certainly there have been 91 (or 96) Australian VCs, but only one VC was awarded to Edgar Towner. There is no other object that relates to his action. The VC is public and national recognition of a discrete act of valour, and that act is inextricably interrelated with the award itself.

99. The video film, according to Mr Logan, graphically illustrated the potency of the award of a VC at the human level. It showed the effect upon people other than the recipient. It showed the effect not only upon the servicemen who are the casualties of war but upon their mothers, fathers, lovers and children. The emotions are stirred and we cannot be clinical about them.

100. One of the misconceptions about World War I, Mr Logan said, is that Gallipoli was the most significant Australian event. It was the first major event, and that perhaps gave it its place of significance. There are, however, more sites in France sown with Australian casualties than Gallipoli.

101. World War I was a transitional event in Australian history. Approximately 300,000 of the 400,000 volunteers who enlisted fought overseas. The estimates of casualties varies but they were in the order of 60,000. In a population of no more than 5 million people, it follows that a high proportion of the young men (they were mainly men although there were also female nurses) served. All who served were volunteers.

102. It is wrong, says Mr Logan, to look at the issue from the point of view of the individual Australian States. If it were necessary to choose an area to assess the significance of Major Towner's VC, it would have to be Longreach where he was at home and where he was regarded as a man of great stature. The rest of his life was indicative of the character that lies behind the acts of gallantry that led to his award of the VC and the MC. Having put his life on the line in World War I, he felt so much for Australia that he joined the Army again during World War II. He was too old to fight overseas but he stayed in Australia and imparted his skills.

103. The significance of the VC is illustrated by the extent to which VC winners are the subject of public acclaim. They are accorded extraordinary recognition. Special concessions are made in the Income Tax Assessment Act and in the VE Act. This statutory recognition is only part of the tableau of national recognition.

104. The case is not about whether VCs should or should not be in the AWM. The relevance of the AWM is that it is a repository for so many of the medals. It has not obtained these medals on a commercial basis, but has had them donated. This is an illustration of the enormous regard in which it is held.

105. Finally, Mr Logan pointed out that, in spite of all Mr Staunton's arguments in favour of granting an export permit, his own preferred position was that the VC should remain in Australia. There is only one way of ensuring this, Mr Logan said, and that is to refuse the application.

DISCUSSION OF ISSUES

106. It has been agreed between the parties that Major Towner's VC is a Class B object. It necessarily follows that it is an object that comes within the description of "movable cultural heritage" and so is of importance to Australia, or a particular part of Australia, for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons. That is to say, it is to be assumed that it is important to Australia for reasons given in sub-section 7(1). Nevertheless it remains necessary to go behind this assumption in order to determine why the object is important.

107. Once it has been determined that an object is on the List, there are two further steps. The first is to consider the reports of the expert examiners and the Committee's recommendations and to have regard, among other things, to the reasons referred to in sub-section 7(1) that are relevant to the object (paragraph 10(6)(a)). One must then ask whether, bearing those reasons and other things in mind, the object is of such importance to Australia, for those reasons, that its loss to Australia would significantly diminish Australia's cultural heritage (paragraph 10(6)(b)). Of the reasons specified in sub- section 7(1), it is the historical reasons that are relevant to Major Towner's VC and MC.

What is the "cultural heritage of Australia"?

108. Before we can take these steps, there are two preliminary issues which must be considered. The first relates to the meaning of the words "cultural heritage of Australia". We are required to consider the effect of the loss of the VC upon Australia's cultural heritage (not its movable cultural heritage) and to determine whether its loss would significantly diminish that cultural heritage. We cannot do that until we have considered what is meant by the "cultural heritage of Australia".

109. While the term "cultural heritage" must be considered in the context of the Act, it is useful to consider the meanings which may be ascribed to these words. They have not been considered in previous cases, although matters of heritage and culture have been the subject of various enactments at Commonwealth and State level. Only two, the Australian Heritage Commission Act 1975 ("the Australian Heritage Commission Act") and the World Heritage Properties Conservation Act 1983 ("the World Heritage Properties Conservation Act) provide assistance in this case. We will commence, however, with a consideration of the dictionary meaning of the words "cultural" and "heritage".

110. The New Shorter Oxford English Dictionary (4th edition, 1993) defines "cultural", in so far as it is relevant, as:

"... 2. Of or pertaining to culture in a society or civilisation. L19. ..."

The word "culture" is defined, again in so far as it is relevant as:

"...II4 The cultivation or development of the mind, manners, etc.: improvement by education and training. Ex16. 5 Refinement of mind, tastes, and manners, artistic and intellectual development; the artistic and intellectual side of civilization. E19. 6 A particular form, stage, or type of intellectual development or civilization in a society; a society or group characterized by its distinctive customs, achievements, products, outlook etc. M19. 7 The distinctive customs, achievements, products, outlook, etc. of a society or group; the way of life of a society or group. L19. ..."

111. The definition of the word "heritage" reads, in part:

"2. The fact of inheriting, hereditary succession. ME- m16. 3. A gift which constitutes a proper possession, spec God's chosen people; the ancient Israelites; the Church. ME. 4 Inherited circumstances or benefits. E17, 1 SIR W. SCOTT Lord of a barren heritage. N. EZEKIEL God's love remains your heritage. 3 AV 1 Pec. I 5:3 Neither as being lords over God's heritage. 4 LYNDON B. JOHNSON My Texas background or my Southern heritage. J. BRODSKY she was carrying the heritage of her predecessors into the art of this century.

Attrib. & comb.: In the senses `forming part of a national or cultural heritage', as heritage highway, train, etc.; `concerned with the conservation and use of the national or cultural heritage', as heritage group, industry, etc. special combs, as heritage coast a section of the UK coastline designated as aesthetically or culturally important and therefore protected from development, heritage trail a route linking places of historic interest."

112. It follows from these dictionary definitions that the ordinary meaning of the words "cultural heritage" is a very wide one. 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.

Australian Heritage Commission Act

113. Turning now to the first of the Commonwealth Acts we have mentioned, the Australian Heritage Commission Act establishes the Australian Heritage Commission with various functions relating to the "national estate". The "national estate":

"... consists of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community." (Sub-section 4(1))

114. In broad terms, a "place" includes a site, area or region, a building or other structure or a group of buildings or other structures (sub-section 3(1)). Without limiting the generality of sub-section 4(1), sub-section 4(1A) goes on to list particular features or qualities of a place which would lead to its being included in the national estate. Those features are:

"(a)

its importance in the course, or pattern, of Australia's natural or cultural history;

(b)

its possession of uncommon, rare or endangered aspects of Australia's natural or cultural history;

(c)

its potential to yield information that will contribute to an understanding of Australia's natural or cultural history;

(d)

its importance in demonstrating the principal characteristics of:

(i): a class of Australia's natural or cultural places; or
(ii): a class of Australia's natural or cultural environments;

(e)

its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group;

(f)

its importance in demonstrating a high degree of creative or technical achievement at a particular period;

(g)

its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;

(h)

its special association with the life or works of a person, or group of persons, of importance in Australia's natural or cultural history."

115. The grounds upon which a place may be included in the national estate under the Australian Heritage Commission Act reflect the legislation's intention to preserve Australia's natural and cultural environment. It is concerned not with the universal issues of world heritage but with the more particular aspects of what comprises the natural and cultural environment of Australia. In doing so, it is clear that the Australian Heritage Commission Act has adopted a meaning of "culture" which encompasses the ordinary meaning of the word.

116. The World Heritage Properties Conservation Act applies to "identified property". Sub-section 3A(1) provides that "identified property" is property which satisfies one or more of the conditions specified in the sub-section. One of those conditions is that:

"the property forms part of the cultural heritage or natural heritage and is declared by the regulations to form part of the cultural heritage or natural heritage;" (Sub-paragraph 3A(1)(a)(iv)).

117. Sub-section 3(1) provides that "cultural heritage" has the same meaning as in the Convention for the Protection of the World Cultural and Natural Heritage adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation ("the World Heritage Convention"). That Convention defines "cultural heritage" as:

"monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view." (Convention, Schedule to the World Heritage Properties Conservation Act.)

118. The World Heritage Properties Conservation Act has adopted a meaning of "cultural heritage" which is narrower than the ordinary meaning of those words, being one which reflects the Act's aim of protecting and preserving property which is of outstanding universal value. The meaning adopted is focussed upon the value of the property to all persons. It adopts as its criteria in determining whether property is of outstanding universal value historical, artistic or scientific reasons and historical, aesthetic, ethnological or anthropological reasons. It does not focus upon other aspects of cultural heritage, such as customs, religion and folklore.

119. Is the ordinary meaning to be given to the words "cultural heritage" as they appear in sub-section 10(6) of the Act, or is it to be given some other meaning? As we have observed, Australia's movable cultural heritage is to be determined by reference to what is important to Australia or a part of Australia for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons and by reference to whether they fall within particular categories. This description necessarily focuses upon the tangible and movable for it is dealing with objects of cultural heritage that are capable of export.

120. 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 sub-section 10(6). Sub-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 sub-section 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 consider that the words "cultural heritage" should be given their ordinary meaning in sub-section 10(6).

What is a "significant" diminution?

121. In Re Vulcan Australia Pty Ltd and Comptroller-General of Customs and Another (1994) 20 AAR 116 the Tribunal discussed a number of cases which considered the meaning of the word "significant".

"The word `significant' has been considered in several authorities including McVeigh v Willarra Pty Ltd (1994) 6 FCR 587 (Toohey, Wilcox and Spender JJ) which was concerned with whether there was `significant Australia content' in the film and Mickelberg v The Queen (1989) 167 CLR 259 (Mascon CJ, Brennan, Deane, Toohey and Gaudron JJ) which considered whether there was a `significant possibility' that a jury would have acquitted if it had been given certain additional evidence. Franki J also considered it in Trade Practices Commission v TNT Management Pty Ltd (supra)[(1984) 1 FCR 172] and while not attempting to define the word as it was not necessary to do so, noted (at 50) that:

`... it is clear that it must mean, perhaps except in extraordinary circumstances, at least `not [un]important' or `not insignificant'."

Foster J in ACI PET Operations Pty Ltd v Comptroller- General of Customs (1990) 26 FCR 531 examined the word "significant" in the context of a s 269c as it was previously enacted and in the context of there being "no significant part of Australia in which there would be significant cross-elasticity of demand between the goods".

His Honour said (at 551-552):

"The word `significant' has acquired a number of shades of meaning in common parlance. For instance, it is not infrequently used as a substitute for `substantial'. It is, however, clearly important that it be given as precise a meaning as possible in this legislative provision, as its use imports a major guiding consideration into the determination by the Comptroller of whether goods serve `similar functions'. I turn, therefore, to the dictionaries for guidance and find that the Oxford English Dictionary (2nd ed) defines the word (where relevant) as `full meaning or import; important, notable; and having or conveying a meaning', and that the Macquarie Dictionary defines it as `important; of consequence; expressing a meaning; indicative'.

I derive assistance also from considering that the word is the opposite of `insignificant' which word is defined in the Macquarie Dictionary as meaning `unimportant, trifling or petty' and as `too small to be important'. Looked at from this point of view `significant' may be regarded as meaning `not unimportant or trivial' or as `sufficiently large to be important'.

One could no doubt multiply meanings by recourse to other dictionaries. One thing is very clear, namely that there is necessarily a fair degree of value-judgment involved in attributing significance to something. Significance must also depend upon context. The very use of the term must frequently involve the subsidiary question `significant for what?'. Where the word is used in connection with the holding of an inquiry or the making of a decision then, in my view, it conveys the notions of importance, meaningfulness and relevance to the inquiry or decision." (pages 132-133)

122. The word "significant" has also been considered in the context of environmental issues in Drummoyne Municipal Council v Roads and Traffic Authority (1989) 67 LGRA 155. Stein J, sitting in the Land and Environment Court of New South Wales, said:

"... Bearing in mind the infinite number of possible `activities' which may be sought to be carried out in a myriad of different environments, it is difficult if not impossible to be precise about what may be considered as a significant effect. What may or may not be significant will be conditioned by the circumstances of the environment. The determining authority must examine the environment and the effect of the activity on that environment and determine whether it is likely to be significantly affected by the activity. In my opinion it would not be helpful for the Court to attempt to closely define what may be seen as a significant effect on the environment. Indeed, it may be a process fraught with danger.

However, for those who feel more comfortable with definitions I am prepared to suggest that a significant effect must be an important or notable effect on the environment, as compared with an effect which is something less than that, that is, non-significant or non-notable. But I must stress that the assessment of the significance must depend upon an assessment of the facts constituting the environment and the activity and its likely effect on that environment." (page 163)

This conclusion was followed by Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources and Another (1995) 127 ALR 580 at 603.

123. It is clear from these cases that a consistent meaning has been given to the word "significant" in cases concerned with a broad range of subjects. We propose to do the same, and accord the word "significantly" in paragraph 10(6)(b) the meaning "not unimportantly or trivially" or, to put it in positive terms, "importantly or notably".

Should a permit be granted to allow Major Towner's VC to be exported?

124. This returns us to the issues in this case. Major Towner's VC - indeed all VCs - are regarded by both parties as unique objects, representing the extraordinary deeds of a particular person at a particular time. The only thing they have in common, apart from their physical appearance, is that they are all awarded to persons who, in the presence of the enemy, perform acts of the most conspicuous gallantry or daring, or pre- eminent acts of valour or self-sacrifice, or display extreme devotion to duty.

125. It was common ground also that the value of each VC entirely transcends its physical manifestation. On the basis only of its physical characteristics - a piece of moulded gunmetal decorated with a ribbon - there would be no question of withholding an export permit. Its value lies not in its tangible qualities but in its intangible. Its intangible qualities are twofold. The first is its symbolic quality. It symbolises courage, bravery, devotion to duty and self- sacrifice. It is public evidence of the very great value that we as a community place upon these qualities. A VC's intangible quality also lies in its power to direct the community's attention to an event or time in its history. This is a quality shared by objects such as the Old Gum Tree at Glenelg in South Australia and the Dig Tree in New South Wales which is associated with Burke and Wills' last expedition. A VC directs the community's attention to a specific event in war.

126. Accepting all this, Mr Trungove has nevertheless mounted some persuasive arguments as to why the loss of Major Towner's medals would not significantly diminish Australia's cultural heritage. In doing so, he has substantially relied upon the written material and evidence of Mr Staunton. In the event, we have found against Mr Trungove on this issue. In order to explain why we have done so, it is necessary to go first to the reasons given by Mr Staunton for recommending in his report that an export permit should be granted.

127. It is true that the VC, as its name implies, had its origins in a British Royal Warrant. The medal itself is moulded from gunmetal obtained from the Crimean War. By far the greatest number of its recipients have been members of the British Armed Forces. There is thus nothing Australian about its origins or its physical properties. The 91 (or 96) medals which are regarded as Australian have acquired their Australian identity solely through the nationality of their recipients. But it could not be said that this in any way diminishes the Australian flavour of those medals. After all, it is the recipients, and their deeds of valour, which are generally acknowledged to be at the core of the VC's almost mystical value.

128. Thus it is that the 91 (or 96) VCs which have been awarded to Australians have acquired a uniquely Australian identity. The mere fact that there has been such a debate over the years as to whether the Australian VCs number 91, or 96, or 115, is itself an indication of the national pride reposed in the Australian recipients of this award.

129. Mr Staunton goes on to say that the only argument for retaining Mr Towner's VC is an emotional one. In this he may well be correct, at least in part. But he is seriously underrating the uplifting role of emotions if he regards this as a source of criticism. Certainly, it is the power of emotion which endows an otherwise unexceptional piece of gunmetal with the heroic status a VC possesses. But it is the power of emotion which is also responsible for idealism, loyalty, patriotism and so many other attributes to which we, as individuals and as a community, aspire. Similarly it is the power of emotion, as well of reason, which makes us respect our history and learn from its lessons.

130. A further argument mounted by Mr Trungove related to the VC's status as a Class B object under the Act. He pointed out that much of the evidence in this case related to the intrinsic value of all VCs. If VCs were to be regarded as so significant as to merit group protection under the legislation, he argued, it was in the power of Parliament to designate them as Class A objects. Having been denied that status, each one must be treated on its own merits. Mr Trungove thus urged that it would be insufficient for a respondent to rely upon the significance of VCs as a whole, and to say that the loss of any one of them would significantly diminish Australia's cultural heritage. There are, as Mr Trungove pointed out, 91 (or 96) Australia VCs, and thus rarity is not an issue. The cultural heritage of this country would be diminished in a minor way only, he said, by the loss of any one of those medals.

131. It is worthy of observation that had VCs generally been classified as Class A objects, this might well have had the effect of preventing surviving VC recipients themselves from taking their medals out of Australia had they wished to do so. Mr Trungove is correct, however, in suggesting that the classification of VCs as Class B objects means that it is insufficient for the respondent to rely upon the qualities of VCs as a whole. We must, in determining this case, have regard to the individual qualities of the particular medals for which a permit is sought. This does not mean that we should undertake a comparison between Major Towner's VC and other VCs and assign some sort of priority of significance between them. To do so would in any event be repugnant to the whole notion of VCs as unique symbolic objects. It does mean that we must consider these particular medals and ask ourselves whether they are of such importance to Australia for historical reasons that their loss would significantly diminish this country's cultural heritage.

132. Much has already been said about the significance of the action at Mont St. Quentin. It was, on the evidence, Australia's most outstanding feat during World War I. The Australian's action at Mont St. Quentin was part of the overall action that was instrumental in driving the Germans back to the Hindenberg Line and in ending World War I. It has been described as "a brilliant feat of arms", "a most significant event in Australia's military history" and by some as "the most brilliant achievement of the AIF".

133. It is for his part in this outstanding action that Major Towner's VC was awarded. It is to this historic action that his VC acts as a signpost for all later generations. It is the courage, bravery, devotion to duty and self-sacrifice shown by Major Towner in that action which his VC symbolises. Its qualities as a signpost and as a symbol are not diminished by whether or not the action at Mont St. Quentin has caught the public's attention to the same degree as any other Australian action. Lack of general public attention cannot detract from the importance of this action from an historical viewpoint.

134. Mr Staunton predicted that the Australian public would display little interest if the Towner medals were to be donated to the AWM. This may or may not be so. But history shows that there is a substantial level of public interest in these medals, as evidenced by the public outcry in 1983, when they were offered at auction and there was a risk of their leaving the country. This culminated in the making of the film "What Price Valour?". It indicated a very real public concern about the possible loss of the medals to Australia.

135. The particular importance of Major Towner's medals was eloquently stated by Mr Burness in his statement:

"Even among Victoria Cross exploits the awards of Edgar Towner are remarkable. He not only received the Victoria Cross, but he was also awarded the Military Cross and was twice mentioned in dispatches. This places him firmly among the foremost of the nation's military heroes.

Towner was a member of the Australian 2nd Division AIF. This was a very experienced division whose service extended from the battlefields of Gallipoli, to the Somme, the Hindenburg Line, Passchedaele and the victorious 1918 battles. It should be noted that the division erected its battle memorial - a prominent and outstanding sculpture - on Mont St. Quentin. This is evidence of the pride of achievement, and sacrifice, that the division took in its capture of Mont St. Quentin. Towner can be seen as one of the three `bravest of its brave' to have received the Victoria Cross in the division's most memorable battle. There are very few Australians more highly decorated than Edgar Towner. There are certainly many who were not so highly decorated but whose medals the community would want to see preserved in Australia. I feel that permission to allow the export of Towner's Victoria Cross would create a precedent leaving very few Australian awards protected by the legislation."

None of this was disputed in evidence.

136. Mr Staunton predicted that, if exported, Major Towner's medals would be likely to return to Australia in due course. This, however, can be a matter of surmise only. If the medals were to be exported, then they must be regarded as lost to Australia's cultural heritage. What would thus be lost would be an important or notable signpost to an outstanding Australian action in World War I and a symbol of heroic qualities which were exhibited in that action and which are themselves part of Australia's cultural heritage. As such, the loss of the medals would result in a significant diminution of Australia's cultural heritage. The fact that the AWM already holds the other two VCs awarded for deeds during the action at Mont St. Quentin does not affect this conclusion. As we have already observed, each VC is a unique object and so rarity is not a factor that comes into play.

137. Finally, we should say something about Issy Smith's VC, which has been exported from Australia under a permit granted under the Act. It follows from everything we have said that each VC must be considered on its own merits. The fact that a permit is granted or refused in any one case cannot dictate the outcome of other cases. Even so, we should explain why the loss of Mr Smith's VC to Australia would not have significantly diminished Australia's cultural heritage.

138. Issy Smith's VC is as important as any other VC for the reasons we have given. It does not, however, have the degree of importance to Australian history that can be attributed to Major Towner's VC. This is so for several reasons. Although he was in Australia when he was recalled to his regiment, we have no evidence that Mr Smith regarded Australia as his home. He was not an Australian by birth and had not spent any amount of time here. He belonged to a British regiment. The action in which he displayed his courage took place during an action which did not involve Australian troops and which had no significance to Australia other than in a remote and indirect way as a member of the then British Empire. Issy Smith's VC is not numbered among the 91 that are regarded as Australian VCs. Whether any one of these reasons would, on its own, distinguish the effect of the loss of Issy Smith's VC on Australia's cultural heritage from the effect of the loss of Major Towner's VC is not a conclusion which we need to draw. Suffice it to say that, taken together, all of these reasons clearly distinguish the two VCs in relation to the grant of a permit under the Act.

139. For the reasons we have given, we have decided that a permit should not be granted. The decision under review is affirmed.

Counsel for the Applicant	Mr J Trungove
Solicitor for Applicant
Counsel for the respondent	Mr J Logan
Solicitor for the Respondent	Mr J Bishop (Australian Government Solicitor)

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