australian me 109

[Mark_Pilkington]

......and then it hit me........Mark Pilkington you have no first hand knowledge of this event whatsoever do you? You only know what you have read or have been told by others that were not there either. You can cut and paste the Act as often as you like but you still know nothing about what really went on do you? I am not pleading innocence on behalf of Mr Arnold far from it. The question he and my father had was regarding the "significance to Australias War history" that this particular 109 held. Their belief is it was very little as an individual aircraft. The customs article does not tell the entire story.

So just to deal with the last points first:

Mr Arnold and your father questioned the aircraft's significance to Australia's war history?

"so what"?, is that a legal defence for "breaking the law"? - No!

Apparantly there "was" a previous export permit application (confirmed by both Customs and now yourself) that had been denied, I assume on an expert opinion and finding that the aircraft "was" of heritage significance to Australia?

We can argue all day as to if it IS or NOT significant to Australia, thats got little bearing on the law being broken or not, and while I can see how it can be considered to be significant (and also not so significant) I'm not trying to debate it or define it, I have been debating the law and then the outcome in this instance.

Apparantly there was no legal attempt to reverse that finding or decision? ie to try and get permission to export the aircraft (or scrap) legally.

This story seems simply to be that an attempt to export a "thing" that has been denied a permit to be exported was made by calling that "thing" something "else"?, ie "concealing" what it was that was "being exported" in the wording of another permit application or declaration? and concealing it under silver spray on latex.

- as I said earlier, the "motives" seem clear.

But the objective by the owner was still to "export" something that had already been "denied" a permit to be "exported"?

Seems pretty simple and obvious isnt it? that was an attempt to "break the law"

You however call it trying to find a loop hole?

And then an Australian Customs investigation confiscated the "thing" and it was forfeited under the law.

You state the customs article doesnt tell the entire story, but dont seem to be able to evidence that its wrong anywhere? and in fact you provided further comments to confirm it to be right, what it "doesnt tell" doesnt "really matter".

And no - I wasnt there or involved in this incident either, as it seems you werent at the time either. You may well have your fathers view of the "loopholes" or the "significance of the aircraft" but those were simply his, and now your "opinions".

I have spoken to a number of people in the past directly involved in this matter but I am not quoting them or relying on their "hearsay" to me and I'm not therefore going in to "who they are" and their "roles", I'm not "relying" on, or "presenting" their views or opinions.

I am simply quoting the act itself and more importantly quoting and relying on the Customs published account of the incident (an Australian Government legal agency) and of course pointing to the resultant outcome - aircraft confiscated and forfeited -

Those items are all in the public domain and I have linked my sources, I dont need to have "been there".

Hi everybody. I thought I would add what I can to this discussion from memory. I was only a kid at the time but my father Roy spoke about the “whole sorry affair” for many years afterwards

And you yourself admit you were a kid at the time, have little first hand involvement either, and are relying on your "sketchy memory" and information passed on by your father and family, and now your own fractured "legal" logic to question the known facts and published accounts of the event.

- I can understand your loyalty to your fathers involvement and innocence, and right to clear his name, and I'm not questioning that at all as I have not found any independent reference to him or his involvement, hence my statement "apparantly and according to you" was a prefix to any comments I was making on him as the details of his situation which were all based on what I understood from your own account ie I was not making any accusations against him (or you), just commenting on that situation "apparantly" as "advised by you".

But it seems you have no real evidence of the details of any export permit that did or didnt exist, or the legal situation and settlement between customs and the owner or the legal findings of the apparant court case that is referred to in the Customs article, or for that matter the federal parliament hansard. - you are relying on family hearsay and your own sketchy memory.

Yet you ignore and dispute whats clearly written in the Act itself?

You also ignore and dispute the account of Australian Customs, but with no details or evidence to prove it, other than your sketchy belief that there was an export permit, (clearly if there was one - it "wasnt" valid.

I didn't want to write things according to my sketchy memory but your condescending tone has left me no choice.

Your father (apparantly and according to you?

Really? Nice and condescending. Have you found any other name that was prosecuted? Or any name at all? Am I making it up? How dare you. His name was Roy Coburn and he was paid by Doug Arnold in 1979 to prepare the 109 for export, that is a matter of record not opinion. My father had professional qualifications in this field, what do you have Mark?

Your father had engineering qualifications in aviation? - whats that got to do with Export Law? What does it matter what qualifications he had, or I have (or you have?), the "facts" are on the public record. - see the customs article!

I actually have business qualifications with training in law but "blind freddy" can see the fractures in your 'legal" logic and arguments?


In regards to "your fathers situation" I have offered no criticism of him or statements to his guilt or innocence etc, I have accepted your accounts of his role and subsequent conviction and acquittal as being true, and havent found any reference to him elsewhere to anyway question what you state.

I agree I am becoming "condescending" to you over your constant attempts to ignore the published facts of the event and offer "nothing" but your own opinions and judgements on the legal outcome and to "whitewash and revise history".

I am sorry however that you have taken exception or offence to this statement below, as that was not intended, I suspect you have misread or misinterpreted what it said, or at least what I "meant it" to say: I suggest you re-read it in that context.

Your father (apparantly and according to you? as he doesnt get mentioned in the customs article) had been charged and found guilty of an offence in an Australian court of law, a conviction later overturned on appeal at the High Court - one doesnt get found guilty of being involved in an illegal export if there was no evidence that the export was illegal.

My point was to refer to the fact that he was charged and found guilty in a lower court of law to confirm there was clear evidence in that court that a crime had been committed, the acquittal seems to have been based on his "lack" of involvement in that crime, "not" the fact the crime didnt occur.

My father certainly was found guilty and later acquitted. I am trying to find any online references to it

I havent found any reference at all to your father (ie not in the references above from the Customs article which doesnt name anyone, or quote from Parliament Hansard which olny mentions Mr Arnold) and have accepted "everything" you have said about him in regards to being charged, prosecuted, found guilty and acquitted on appeal "solely based on your statements here", and have not questioned or disputed any of that - or his innocence.

I havent at any time suggested you made it up, I was trying to make it clear my statements and understanding of your fathers situation was in regard to what had "apparantly" happened and "according to you" - in affect I am acknowledging that "you" were my "only" source -- it wasnt to suggest in any way that it was wrong or incorrect.

I have however indicated I suspect his acquittal relates to his own conviction, and not the guilt or other wise of the owner, or any others who were attempting to export the aircraft without a valid export permit - you had commenced this debate stating your father was engaged to dismantle the aircraft and had nothing to do with its export?

I am trying to be as brief as possible but please understand that there never was an export permit for said item as an "aircraft" but IIRC there was one for that same aircraft as a piece of "scrap" along with other "aircraft parts". ................................. Can you see why someone may want to bypass the system? Because it wasn't working

So you keep making that statement - "bypassing the system" ?

How do you think that works? "legally"? And who do you think this law is meant to "work for"?

There is a law that states you need a valid export permit (submitted and approved) to export aircraft or aircraft parts, and that export permit process needs the details of the aircraft or parts to be assessed for heritage significance.

It seems that occured and its export was denied, prohibited? and then it was attempted to export it "anyway", by calling it something "else", but it was still "it" and "it" had been already "denied" permission to be exported.

and how wasnt "it working" or for whom "wasnt it working"

The act requires exporters of aircraft and aircraft parts to submit an export application and have the items approved for export, or denied if found to be significant.

The Act in this case simply stood in the way of an overseas buyer exporting something that had already been prohibited from being exported, the act was "working" but not for the exporter!

You are trying to legally and morally defend an attempt to "bypass" or "break" that law?,
(ie whitewashing and re-writing history)


(I think you will find that legal argument was tried with customs at the time, and the owner lost - see the Customs article)

Its called "breaking the law" and the aircraft were both "confiscated and forfeited" because they were involved in an attempt to "break the law", and legal proceedings confirmed that outcome and was resolved in Customs favour and the aircraft left in their possession. its all confirmed in the Customs article, and I'm happy to accept the statements of an Australian Law Agency.

I dont have the details of convictions recorded against individuals and dont really care.

Its clear the law was "broken" and the aircraft (or scrap) was "confiscated" and "forfeited", I suspect if Mr Arnold was directly involved in the export attempt and had been apprehended in Australia he might have been standing in place of your father before the courts? as apparantly suggested in the quote from hansard?

It is my understanding that after the application to export the 109 as an "aircraft" was denied they then attempted to export it as "scrap" which is exactly what the AWM were happy to call it when they sold it to Mr Wetless (lovely man was Brian), an export permit for "scrap" was obtained and the Bf-109 was a part of this.

So now you confirm the Australian Customs article is "correct in that aspect" too, the aircraft was denied an export permit as an "aircraft" so the attempt was made to export it as "scrap" - of course it was going to be given to a museum in Germany and displayed as an "aircraft" not as "scrap" and wasnt simply being sent out to be melted down as "scrap", the owner and others knew they were "breaking the law" and it seems "you" do too?

It doesnt matter what "it" was called, "it" had already been apparantly denied an export permit, "its" export was "prohibited".

A "loop hole" - trying to "bypass", = "breaking the law", and court proceedings by customs apparantly confirmed it.

Ever heard of a loophole Mark? Sometimes that is how people get things done.

Its a "loop hole" when a lawyer gets you off in a court of law and the court confirms you "found one" ie you didnt "break the law"
(usually then government changes the law to close the loop hole following the courts ruling to avoid further such outcomes)

That clearly didnt happen here! in regards to the aircraft and the attempt to export "it", regardless of your fathers level of involvement or subsequent acquittal.

In fact this whole law was designed to close the "loophole" previously used to export a complete Spitfire from the same collection as "scrap", the "loophole" was closed and the law was "broken", end of story.

Read the customs article again if you need to?

Your opinion of any violation of the "Act" is exactly that........opinion.

No my reading of the Act simply helps me understand what is required to be done to export an aircraft or aircraft parts, it seems the owner sought legal advice or "opinion" to try and get around that, and apparantly discovered that legal advice or "opinion" wasnt very good, or maybe knew that there wasnt a legal way to export the "scrap" and so tried to conceal what it was and export it illegally.

The violation of the Act is proven by the Customs article and the known outcomes, unless you have a legal judgement by a court that states different? - do you?

It seems to me Mark that you really need a lesson in history as you clearly don't know what actually went on. You have made it clear that your view revolves around the Act and your "interpreted" violations of it but, that doesn't mean anything really outside of a court of law.

No - my view and interpretation of the evidence of a violation of the law is simply based on a published account by an Australian Law Agency in the public domain, I'm happy to accept that - in absence of independent evidence that its wrong, and you havent provided any? when you do - I will reconsider my view.

It is clear from that Customs account of the incident that the incident resulted in the aircraft being successfully confiscated and forfeited (as is allowed for under that law) and the Customs published account that "confirms there were court proceedings" that settled the matter in Customs favour.

ie Customs won the other side lost.

Do read the article on the Customs website, its a publicly available account of what happened by an Australian legal agency

- its not relying on your sketchy memory! (or mine?, or my opinions or views)

- Its apparantly written at the time and based on the legal outcomes of the case.

- Its an historical account, that you havent evidenced in any way to be wrong?

If you are making the point that Mr Arnold or others or the "owner/exporter" were not "convicted" or sentenced like your father, then I'm happy to conceed there is no evidence they were, but that doesnt mean they didnt forfeit the aircraft due to the law being "broken".

If I get a speeding or parking ticket, but I'm not convicted in a court of law, that doesnt evidence I'm "innocent" or that I didnt "break the law", or a law wasnt "broken".

- which is the point I am making and you seem to be trying to dispute?

(ie you seem to acknowledge the aircraft were legally confiscated and then forfeited, but consider no law was "broken"? - it was just "bent" I assume?)

I can of course dispute the speeding ticket or parking ticket by taking the offence to court, but then I risk a harsher judgement than just a fine, by paying the ticket and accepting the fine I am acknowledging and accepting my guilt, otherwise I need to go to court to dispute it and have the charges withdrawn, or be found "not guilty".

It seems from the Customs account that this issue did go to court and the owner then chose to settle by accepting the forfeiting of the aircraft and "settling in Customs Favour", that doesnt make him "innocent" as you seem to imply -simply because he didnt get sentenced in court".

I suspect things would have been a lot different had he been located within Australia at the time, and wonder if he ever stepped back on Australian soil since? and why not?

The aircraft / scrap was confiscated, and later forfeited by the owner because an attempt to export it illegally occured and the law was broken.

I am not stating that he did not break any laws, merely that he was never convicted. My opinion? Yes he probably is guilty of breaking a law but only probably. It is people like Mr Arnold that get these sort of wonderful aircraft out of storage for no personal financial gain (unsubstantiated opinions aside) how can that be a bad thing?

So now "apparantly and according to you" he did "probably broke a law" (???? so what are we arguing about?)?

But because it wasnt really significant to Australia and he wasnt doing it for "personal gain" ("according to you", and thats your "unsubstantiated opinion" being displayed there!) he can "break the law" and should be allowed to do so because he was saint? - get real!?

Which other laws in Australia do you think people should be able to "break" as long as they are not doing it for "personal gain"?

People smuggling, Drug smuggling??

Can someone "smuggle" heroin into Australia as long as they "donate" the proceeds to a good cause or charity? rather than keep the profits for themselves?

Maybe if they call it "scrap" or "waste chemicals" on the declaration as well it will just be considered just a "loop hole" and be permitted in as a legal import?

You have to be kidding dont you? do you have any legal training yourself to argue such interpretations?

You are simply trying to whitewash and re-write history, I'll accept Customs version thanks.

Here - I will join the dots for you if you like?

This law was written specifically to stop what they was doing, (following a similar successful export of a Spitfire from the same collection) and they got caught - "redhanded", and the "scrap" was confiscated and forfeited because it was really an "aircraft" and/or "aircraft parts" which are required "by law" to have a "valid" export permit and this "scrap" had already being specifically "denied" an export permit, ie it was prohibited to export "it"!, making the "attempt" to export it an "offence" under the act. not many loop holes there!

Please don't just cut and paste the Act again.

No I dont think there is any point doing so either, it doesnt matter what it says, you have already admitted it was an intentional attempt to illegally export a Messerschmitt 109 from Australia that had already been denied an export permit and therefore calling it "scrap" was attempting to "by-pass" and "loop hole" (in your words) or "smuggle" (another possible adjective) but in anycase export the "aircraft" fully knowing permission to export it had already been denied! under this "law".

Thats called "breaking" the law, not "loopholing" it, even if thats how some people "get things done" - Lots of people "break the law" to "get things done" they want done.

So once again heres the link to the Australian Customs website and its article on the incident.

http://www.customs.gov.au/webdata/miniS ... ol4no2.pdf

I wont bother pasting it again for you, I've done it once fully and a second time in parts to rebut your twisted logic and you havent addressed its statements with any facts other than denying its accuracy and then above "confirming it" in regards to the 109 already being denied an export permit.

It is quite explicit and clear that:

-A previous export permit was denied.
- A valid export permit did not exist.
-An attempt to illegally export the aircraft without an export permit occured.
- The aircraft were confiscated and forfeited under the Act.
- (Court) Proceedings occured and attempts by the owner to litigate for their return failed and he settled the matter in favour of customs.

This is all on the public domain for everyone to see, You dont need me to quote the Act to you anymore, and I dont need a "history lesson" or your own "interpretations" of the law "looking for" or trying to defend "loopholes" - it seems "clear" some proffessionals have already tried that- and "lost".

You havent shown any "independant" and "sourced evidence" that disproves the Customs account?

Trying to justify what was done as being "not" illegal, or "not for personal gain" or for "a better outcome" or that the aircraft or "scrap" was not "significant" to Australia is just trying to "white wash" and "re-write history".


Unless you actually have or find court transcripts and decisions/ findings that counter those clear and public statements by a law agency of the Australian Government then I think its best to leave "guestimations" and "un substantiated opinions" and "sketchy memory" off the table, and to stop trying to white wash what occured or re-write history.

If you cant do that, then you will simply be regurgitating your earlier attempts and opinions, and it will be easier for you to just re-read this and my earlier posts, neither of us are bringing any new facts to the debate, and the Customs article and its stated facts is more than enough evidence for me, and I suspect for most others.

You of course have every right to proclaim your fathers innocence in the incident, as you have already done, particularly if he was acquitted on appeal by the High Court.

That however doesnt prove that Australian law wasnt "broken" by "someone", and it seems you "agree" with me on that too, your just trying to "justify" it being broken.

Good luck with all that...


regards

Mark Pilkington

[Leon Coburn]

and concealing it under silver spray on latex

The Bf-109 was sprayed in Spraylat for protection of the original paintwork during shipping and today it is the only ex-Luftwaffe 109 aircraft from that era with the original paintwork intact.

I am not pleading innocence on behalf of Mr Arnold far from it.........I am not stating that he did not break any laws, merely that he was never convicted

In your opinion if the 109 was found today to be "not of significance to Australias war history" do you think an export permit would be granted today?

[JDK]

Hi Leon,
Firstly, welcome to WIX, and thanks for sharing your insight from your father's experience of a controversial episode in warbird history.

Your father seems to have been both lucky and unlucky; lucky to run the 109 (we'd like to hear more about that, like how was it started etc.) and more, lucky to have had funds for a legal defence from Doug Arnold, unlucky to have been prosecuted, perhaps.

To have worked for Doug Arnold and to have had a bad experience as a result was sadly a common experience - often directly from Doug, a very changeable man to say the least, or as often, as a result of Doug's business and other practices which often backfired on anyone associated with him. I met Doug on a couple of occasions, and that was more than enough.

There seems to be a few confusions as well. A good 'story' can explain away any number of inconvenient facts, up to a point. But when tested, stories often fail.

Spraylat and related cocooning materials are not, and have never been a good way of protecting aircraft paint or finish. It's a structural protection for shipping, and when removed can, in fact, damage paint. It is not, and has never been, a recognised or recommended paintwork protection measure. Doug was never telling, but I'm afraid the main reason for covering the aircraft with Spraylat was to disguise it, possibly as another type such as a Mustang - the latter is arguable, the former not, I'm afraid. It is also notable that no other aircraft of the era exported or attempted to be exported in the era were ever sprayed with Spraylat.

The debate about representing it as 'aircraft parts' you've supported is just not going to stand up. It was and is a complete aircraft, representing it as a set of 'parts' is self-evidently an attempt to avoid issues likely when it's represented as a complete aircraft. If you want a comparison, try smuggling diamonds and use the fact they're just 'compressed carbon', not diamonds, as a defence.

Doug knew he did not have a legally viable export or defence; that's why he did not contest it. Contrary to your earlier statement, the government legislation was working; it just didn't suit Doug.

Some people like to romanticise Doug Arnold's activities. Certainly he was responsible for the preservation of a number of aircraft, which is a good thing. But that was never Doug's objective - he was always all about Doug, the deal, and the advantage. Promises were worth nothing, and to state that the aircraft would've ended up in a German museum because Doug said so is, I'm sorry, just naive. It's worth stating he manipulated situations multiple times with promises to establish a museum in the UK; there is no evidence he was ever, in any way, sincere about that intention, and his 'museum' never happened.

The AWM's history also has had some poor episodes, including the disposal of this 109, the Betty and Beaufort back in an earlier era when aircraft were not properly managed as they are today.

In your opinion if the 109 was found today to be "not of significance to Australias war history" do you think an export permit would be granted today?

In the case of the specific aircraft, definitely not, as it is in AWM (national) ownership. The claim 'it would be OK now' is merely the noises made by the 'wanna, gunna, shoulda' brigade.



The final fact remains that the aircraft is held, in its original paint and configuration in a national collection, accessible, free, to the general public is the best result we could hope for.

Regards,

[Leon Coburn]

Hi James,

Thanks for the welcome. I'm starting to wish I hadn't bothered.

Regarding the use of Spraylat I'm not certain that is the brand they used, maybe it was maybe it wasn't. From memory my father referred to it as a polymer coating. Maybe the people that removed it could confirm? I am certain that it was my fathers idea, not Mr Arnolds, to spray the 109 with a protective coating and I am certain that he maintained it was to protect the original paintwork to his dying day. He was very big on originality where possible when it came to warbirds.

The debate about representing it as 'aircraft parts' you've supported is just not going to stand up

Please, I am not for one second defending the legality of what Mr Arnold was attempting to do. I'm not supporting it I'm just telling you that is what they did because there seems to be a common belief that they sprayed the 109 silver and listed them as 2 Mustangs, which according to my father is not true. How legal or deceitful it was is of no concern to me. I know the aircraft was dismantled in full view and loaded in the container in full view and the plan was it was being described as "scrap and aircraft parts". I am more than capable of reading the Act but my point was that Mr Arnold was never convicted of anything. Yes he had left the country to avoid prosecution but being prosecuted and being convicted are two very different things. Simply quoting the Act proves nothing without hearing the argument for the defence. It would have been a court case worth watching anyway. This seems to have come across as me defending the legality of what he did. Please be clear I am not and if I wrote anything previously indicating otherwise then that was my mistake. I hope this is the end of the legal debate.

In the case of the specific aircraft, definitely not, as it is in AWM (national) ownership

I was talking about in the same circumstances, ie. this privately owned 109 sold privately to some overseas buyer. Do you think this particular 109 would still be considered of "significant military history" or likely be granted an export permit? Just curious.

[JDK]

I was talking about in the same circumstances, ie. this privately owned 109 sold privately to some overseas buyer. Do you think this particular 109 would still be considered of "significant military history" or likely be granted an export permit? Just curious.

The precedent would be the export of the Nakajima Ki 43 Oscar to New Zealand (now in Seattle) also from the Marshall collection. The issue with the 109 was playing fast and loose with the requirements, unlike the Oscar's export. As has already been stated, the act isn't a prohibition, just a set of requirements.

That's just my opinion.

We'd be interested in others of your father's accounts of his experiences, I'm sure.

Regards,

[Leon Coburn]

We'd be interested in others of your father's accounts of his experiences, I'm sure

Perhaps somebody could get their hands on the interview from Flightpath magazine (Vol 5, No.4) and scan it to here?

[Mark_Pilkington]

and concealing it under silver spray on latex

The Bf-109 was sprayed in Spraylat for protection of the original paintwork during shipping and today it is the only ex-Luftwaffe 109 aircraft from that era with the original paintwork intact.

Hello Leon

Thankfully it was done rather than paint stripped or otherwise repainted, and while there are suspicions etc as to the reasons, I'm happy to accept your position that your father chose to do it to protect the original paint during transport if thats what he told you directly, and I certainly concede there is no specific evidence disputing that or proving otherwise.

I am not pleading innocence on behalf of Mr Arnold far from it.........I am not stating that he did not break any laws, merely that he was never convicted

In your opinion if the 109 was found today to be "not of significance to Australias war history" do you think an export permit would be granted today?

I also will concede that he may not have been convicted, even though the action was clearly breaking the law and the aircraft were forfeited as a direct outcome- had he been residing in Australia the situation for him may well have been much different and even more serious, and he may not have had the same result in the High Court as your father did - it seems then that we have more common ground than it first appeared.

In "my" opinion the 109 has "some" significance to Australia but its certainly not the "most" significant aircraft "in" or "to" Australia.

To my knowledge or understanding there are only 6 aircraft ever denied an export permit and/or declared a class B object under the act.

I have had direct involvement in two of them in that regard, and so do know "a little bit" as to how assessments under the act are undertaken.

DAP Beaufighter at ANAM - Moorabbin
DAP Beaufort at ANAM - Moorabbin
Genairco at Powerhouse Museum
Lockheed 10 at Fleet Air Arm Museum Nowra
Avro Anson now in NZ
This Me 109 at AWM

I am also aware of a pair of P-47 Wings at a crash site being given the same protection, although I understand they have since dis-appeared and would not be surprised if they also were "smuggled" out as "scrap" after being denied an export permit.

Of these 7 objects, 5 were denied applications for export, the remaining 2 were assessed due to different but related reasons to secure them into public collections - to avoid the risk of their sale and export.

There may be one or two more but these are the only ones I am aware of, essentially and literally you can count on one hand the 5 objects (aircraft or parts) that have been denied export under the act.

Interestingly there are similar Laws in both Canada and the UK, (although not as prescriptive in criteria as the Australian Act ie left to Ministerial discretion) but most of the UK warbird fraternity would seem unware of that?

I have legally exported two loads of historic aircraft/parts from the UK to Australia that did not get caught up in it in anycase given the criteria that applies there.

There have been many other historical aircraft successfully and apparantly legally exported from Australia (these issues and assessments arent published in the public domain so I am making some assumptions in regards to their legal export permits etc) including 2 spitfires of Australian history and service, not counting the many other aircraft wrecks more recently recovered from PNG and restored here and then exported, or the warbirds that have come in from overseas recently and then left again.

Both of those spitfires were hybrids of original parts and new construction (I helped on both at various times) and were not the most significant or only spitfires in Australia and were not as significant as the authentic original mark II in the AWM, or the composite and accurately restored mark V at the SAAM, (this aircraft is primarily an original airframe but with many parts of other examples accurately restored back into it.)

(But lets not get into the whole other debate about restorations versus reproductions or authentic originals versus accurate restorations or reproductions.)

Again I would have been pleased to see both remain in Australia but I dont think they could be prohibited from export under the Act, and seemingly were not.

There are of course other aircraft that have successfully been "smuggled out", the spitfire mentioned in my earlier post, also from the Marshall Collection, was exported to the UK and which did use the ruse of being called "scrap" on its declaration to get out of the country, although it seems from the parliamentary hansard that was not considered a legal permit either, it simply wasnt pursued for return or the exporter prosecuted.

That one predates this Act, and caused its specific drafting to close any such loop hole, and beef up the punishments for offences under the Act.

While various other projects and parts exported since that may not have had valid export permits and assessments, and I am also aware of a vintage non-military historic aircraft being exported more recently - apparantly without a valid export permit, but I am yet to learn the full details of its paperwork.

I understand that one is still under active investigation, along with another historic military aircraft yet to leave, but rumoured to be intending to run the gauntlet of the Act.

Of the 5 aircraft denied an export permit that I am aware of, the Anson now restored and about to be flown in NZ was originally denied an export permit (possibly also predating this Act) but was subject to an appeal and successfully gained an export permit and left to NZ.

(Showing an alternative that wasnt apparantly tried with the 109!)

- Under the Act as I read it and in my opinion- that Anson shouldnt and wouldnt have been denied a permit, as it wasnt the only or in the best two examples of an Avro Anson then existing in Australia (the Act requires two others), and so I assume its original refusal might have been under the earlier scheme which relied on Ministerial discretion (the current UK model). The revised decision was clearly the right decision under the criteria of the current Act.

Thats not to say I wouldnt have preferred to see it remain in Australia like others might too, but it didnt meet all the criteria, it was a hybrid of original mark I and posrt war mark XIX wings, and therefore not as significant as the two already preserved as intact "authentic originals" in Australia.

As earlier posts in this thread state, and James repeats above, the export of the Nakajima Ki 43 Oscar to New Zealand (now in Seattle) also from the Marshall collection and seen in earlier photos hanging in the roof next to the 109, provides a good contrast to the 109 as it was apparantly approved an export permit under the Act.

This was captured (or "found" - smiles) on the ground by Australian forces at the end of WW2 and returned to Australia as a war prize, it fought over, and was recovered from invaded Australian territory (PNG and New Britain) and in my mind was quite significant to the military heritage of Australia as a combatant against Australian air and ground forces defending Australia in Australian territories in the Pacific theatre. Its very likely to have had direct action against Australians.

On that basis I might personally rank it of "higher" significance than the 109.

Interestingly, it apparantly was exported with a valid export permit after a heritage assessment was done, which I assume then didnt find it significant "enough" to prohibit export? (I havent seen the report so I dont really know how that assessment resulted).

I have said earlier that this 109 does have "some" significance to Australia as it was a combatant in the European theatre where significant Australians served in the air, in fighter command, bomber command and coastal command in RAAF squadrons as Australian defence personnel. It therefore fits one criteria to be considered. It is the only 109 in Australia which fits another criteria, athough "rarity" in itself doesnt constitute significance.

As one of only 6 combat aircraft surviving in Australia that participated in the European theatre the 109 might be "more" significant than the Oscar on that aspect, given that the Oscar was one of about 15 or more combat aircraft then in Australia that participated in the Pacific theatre.

Its "not" the only german combat aircraft preserved and on display in Australia, (the AWM already had a 262 and a 163), although the 109 is "probably" more representative of the aircraft faced by Australians in Europe than those other two types, and its certainly "not" as significant as the AWM's spitfire and Lancaster which are both from that same conflict but of "far more" significance as they were actually flown and crewed by Australians.

There is not any apparant evidence this individual 109 ever fired upon, or engaged in combat against Australians in the air, it is therefore perhaps only representative of the type used against Australians.

It is a complete , intact - authentic original, not a restored outcome, and is internationally significant for still carrying its original wartime paint.

Both were war prizes taken by Australia as part of the allied victory, and there is some social significance in that.

Those are some of the aspects its assessment might cover?

So were it currently privately owned, and submitted for assessment, it "might" be permitted to be exported, given the Oscar "was" and any assessment probably would be done by the same group of expert assessors.

Yet I would have personally denied or prohibited the Oscar's export, and probably still done so with the 109 as well, but in that order of importance or "significance".

ie I feel the Oscar was more significant.

Will everyone else agree with "my" opinion, probably not? thats fine, its "my" opinion-smiles.

So "could" it have been approved for exported today - "possibly" if the Oscar experience is the "yardstick",

Is it "significant" to Australian military history or heritage, yes, but not "absolutely" or of the "highest" level,

Is it significant "enough" to be "denied" export - still "probably yes" in my opinion, but it could go the other way.

and interestingly its considered significant "enough" to be still displayed publicly in our National War "Museum" thats' purpose is as a memorial to Australians at war.

Of course such assessments (like opinions) are subjective, and require multiple and independent assessors to try and ensure objective assessments are documented and evidenced and objective decisions are made, and for the assessment to use criteria and comparison like discussed above to come to that decision or conclusion.

Given all the historic aircraft that have moved in and out of Australia I consider the Act works quite well given only 5 were ever denied export permits and 1 of those was reversed and then approved under this Act.

I think those who flout or break it intentionally should be pursued and prosecuted so as to discourage others from flouting or breaking it, and to also protect and retain those aircraft that are significant to Australia from being smuggled illegally out of the country.

regards

Mark Pilkington

Last edited by Mark_Pilkington on Tue Jun 26, 2012 6:05 pm, edited 4 times in total.

[oz rb fan]

In the case of the specific aircraft, definitely not, as it is in AWM (national) ownership

I was talking about in the same circumstances, ie. this privately owned 109 sold privately to some overseas buyer. Do you think this particular 109 would still be considered of "significant military history" or likely be granted an export permit? Just curious.[/quote]

funnily enough Leon there is a president for this..two 109's were imported to Australia in 90(if i recall)and were being restored to fly(though i don't recall much work being done on them). they were later exported out of Australia with full permits.
in my opinion the oscar should never have left.

[CDF]

in my opinion the oscar should never have left.

Agreed, nor should Spitfire MV154 A58-671 have been lost either

[Rossco]

in my opinion the oscar should never have left.

Agreed, nor should Spitfire MV154 A58-671 have been lost either

Or this one...

http://caloundra-journal.whereilive.com ... -spitfire/

[Leon Coburn]

Hello Leon

Thankfully it was done rather than paint stripped or otherwise repainted, and while there are suspicions etc as to the reasons, I'm happy to accept your position that your father chose to do it to protect the original paint during transport if thats what he told you directly, and I certainly concede there is no specific evidence disputing that or proving otherwise.

I also will concede that he may not have been convicted, even though the action was clearly breaking the law and the aircraft were forfeited as a direct outcome- had he been residing in Australia the situation for him may well have been much different and even more serious, and he may not have had the same result in the High Court as your father did - it seems then that we have more common ground than it first appeared.

Thank you Mark.

I am not having any luck locating any court findings yet. I remember it was about mid 1983 and dad would get off the train at Martin Place each morning rather than drive there from Rose Bay and I would continue on the train to school. This went on for a week or so. I will keep searching.