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2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN FILM COMMISSION AMENDMENT BILL
2003
EXPLANATORY MEMORANDUM
(Circulated
by authority of the Minister for
the Arts and Sport,
Senator the Hon.
Rod Kemp)
AUSTRALIAN FILM COMMISSION AMENDMENT BILL
2003
OUTLINE
The Australian Film Commission Amendment Bill 2003 (the Bill) amends
the Australian Film Commission Act 1975 (the Act) to facilitate
the integration of ScreenSound Australia and the Australian Film Commission (the
AFC). The objective of the amendments
is:
• to give relevant functions and powers
to the agency to enable it to properly manage, maintain and exhibit the national
film and sound collection;
• to provide the
AFC with the power to employ staff under the Public Service Act 1999;
and
• to make other consequential changes to
the administrative structure of the AFC;
and
• to facilitate the transfer of relevant
Commonwealth assets to the AFC.
The purpose of the amendments follows a Review of Cultural Agencies within
the Communications, Information Technology and the Arts Portfolio (the Review).
The Review considered the potential for synergies from combining parts or whole
agencies, taking into account the implications for the Government’s
cultural objectives, the need for appropriate governance arrangements and
relationships with key stakeholders.
The Review found that one of the
greatest potentials for synergies would be in integrating the AFC and
ScreenSound Australia, a current program of the Department of Communications,
Information Technology and the Arts. Such an integration will expand national
screen culture activities and enhance co-ordination as well as providing a
national focus. Links to the broader sound, film and television industry will
be improved as will educational and exhibition activities. As a result there is
greater potential to provide national leadership in enhancing access to, and
understanding of, audiovisual culture.
The proposed amendments will, for
the first time, give clear recognition in Commonwealth legislation to the
important work of collecting and preserving the nation’s screen and sound
heritage. Specifically, the amendments will articulate a broader cultural role
for the AFC by conferring on it express functions and powers in relation to the
development, maintenance and exhibition of a collection of screen and sound
recordings, supporting documentation such as scripts and artefacts such as film
posters. Such amendments are comparable to corresponding provisions in
legislation establishing other Commonwealth collecting institutions such as the
National Gallery of Australia and the National Library of Australia.
The Bill is not expected to have any financial impact on Commonwealth
expenditure or revenue.
ABBREVIATIONS
The following abbreviations are used in this explanatory
memorandum:
AFC: Australian Film Commission
Act: Australian Film Commission Act 1975
CAC Act Commonwealth Authorities and Companies Act
1997
NOTES ON CLAUSES
Clause 1 provides that the Bill, when enacted, may be cited as the
Australian Film Commission Amendment Act 2003.
Clause 2 provides that sections 1 to 3 of the Bill will commence on the day
on which the Act receives the Royal Assent. Clause 2 also provides that
Schedule 1 to the Bill will commence on 1 July 2003.
Clause 3 is a standard provision which declares that the Schedules to the Act have the effect indicated. There is one Schedule to the Bill. Part 1 of Schedule 1 provides for amendments to the Australian Film Commission Act 1975 and Part 2 of Schedule 1 includes transitional provisions associated with the integration of ScreenSound Australia and the AFC.
Item 1 – Subsection 3(1)
This item inserts a
definition of “CEO or Chief Executive Officer”. The current CEO of
the AFC is appointed by the AFC pursuant to section 29 of the Act, the general
staff employment provision. The statutory recognition of the office of CEO is
required to facilitate the employment of staff pursuant to the Public Service
Act 1999. For the purposes of that Act, the CEO is to be the Head of the
Statutory Agency which will employ staff under the Act. The CEO of the AFC will
be appointed by the Minister.
Item 2 – Subsection 3(1)
This item amends the definition of “Deputy Chair”.
Section 19 of the Act currently provides for the appointment of a single Deputy
Chair to the AFC. Therefore, the current definition of Deputy Chair at
subsection 3(a) of the Act refers to “the” Deputy Chair. The
proposed amendment is consequential to a proposed amendment to section 19 of the
Act which will enable a maximum of 2 Deputy Chairs to be appointed. This
proposed amendment will allow flexibility of representation on the AFC. This
will be particularly important in the early years of the combined
organisation.
Item 3 – Subsection
3(1)
This item inserts a definition of “First Deputy
Chair”. As outlined at item 2, it is proposed to amend the Act to allow
for the appointment of a maximum of 2 Deputy Chairs to the AFC. As a
consequence of that proposed amendment it will be necessary to distinguish
between the Deputy Chairs for the purposes of deputising for the Chair. Section
20 of the Act currently provides for the Deputy Chair to act in the place of the
Chair when he or she is absent from duty or from Australia or for any other
reason is unable to perform the duties of his or her office. Section 28 of the
Act currently provides for the Deputy Chair to preside at meetings of the AFC in
the place of the Chair when he or she is absent from duty or from Australia or
for any other reason is absent from a meeting.
Item 4 –
Subsection 3(1)
This item inserts a definition of "national
collection". ScreenSound Australia holds a collection of items in a wide range
of audiovisual formats and associated materials relating to Australia's screen
and sound heritage. This includes films, television programs, audio and video
recordings in all formats; materials in new and emerging audiovisual formats;
broadcast materials and oral histories. In addition the support materials
collected may include scripts, stills, posters, costumes, publicity material,
vintage equipment and the manuscript records of notable screen and sound
identities etc.
Item 5 – Subsection 3(1)
This item
inserts a definition of “Second Deputy Chair”. As outlined at item
2 the Act it is proposed to amend the Act to allow for the appointment of a
maximum of 2 Deputy Chairs to the AFC. The consequences of that proposed
amendment were set out at item 3.
This item inserts the word “and” at the end of the functions
listed in paragraph 5(1)(a) to be consistent in style with the additional
functions inserted by item 8.
This item inserts the word “and” as for item 6.
This item inserts additional functions for the AFC in relation to the
“national collection”.
The current functions of the AFC as
provided by section 5 of the Act focus on the making, promotion, distribution
and broadcasting of Australian programs, the promotion and distribution of
programs and the proper keeping of recordings in archives in Australia.
Section 3 of the Act defines “program” as a recording or an
aggregate of images or sounds, or of images and sound, that is, or is intended
to be, broadcast without first being recorded. “Recording” is
defined as meaning a film or an aggregate of sounds embodied in any material.
An “Australian program” is defined as “a
program:
(a) that has been made, wholly or substantially in Australia and
that, in the opinion of the AFC, has a significant Australian
content;
(b) that is to be made wholly or substantially in Australia and
that, in the opinion of the AFC, will have a significant Australian content;
or
(c) that has been, or is to be, made in pursuance of an agreement or
arrangement entered into between the Government of another country or an
authority of the Government of another country.
The Act as currently
drafted would allow the AFC to acquire and thereafter maintain the national
collection for the purpose of its existing functions. However, the proposed
amendments would provide expressly for additional functions that reflect a
broader cultural role than that presently reflected in the
Act.
Accordingly, item 8 is to amend subsection 5(1) of the Act to confer
on the AFC the following functions:
• to develop, maintain and
preserve the national collection;
• to exhibit, or make available for
exhibition by others, items in the national collection; and
• to make
items available to persons and institutions.
This item inserts an additional obligation on the AFC in relation to
using the national collection in the national interest. Most of the major
Australian collecting institutions, for example, the National Museum of
Australia and the National Gallery of Australia, have a corresponding statutory
obligation.
The AFC is the Commonwealth’s primary agency for
supporting film, television and interactive media production and distribution
and their creators. Therefore, it is important to ensure that in acquiring the
national collection AFC will have the appropriate obligation to the nation for
the national collection. Accordingly, it is proposed to amend the Act to
provide that the AFC use every endeavour to make the most advantageous use of
the national collection in the national interest.
This item inserts additional powers for the AFC in relation to the
“national collection”, and other programs and material associated
with such programs generally.
Apart from the more general powers to
accept gifts, bequests and assignments and the ability to act as a trustee, the
current powers of the AFC, as provided by section 6 of the Act, focus on
acquiring property and rights and providing financial assistance in relation to
Australian programs. In order to give clear recognition to the work of
collecting and giving access to the nation’s audiovisual heritage,
additional powers for the AFC are therefore required.
As a collecting
institution, the AFC will need to be able to purchase, hire or take on loan or
deposit programs. To ensure an appropriate level of public access beyond mere
exhibition, the AFC should also be able to make programs available by hire,
loan, sale or otherwise. In addition, because of its expertise, ScreenSound
Australia currently provides some services (for instance specialised
preservation work) to the public on a fee for service basis. Therefore, the AFC
will need to have the power to also provide such services. Proposed subsection
6(1B) inserts such a provision. However, the AFC must have the prior approval
of the Minister to charge fees.
Item 11 - at the end of section 6
Section 9 of the Commonwealth Authorities and Companies Act
1997 (the CAC Act) places an obligation on the directors of Commonwealth
authorities and companies to prepare an Annual Report. The AFC is a
Commonwealth authority pursuant to that Act.
In addition to the standard
criteria for annual reports provided under the CAC Act, it is proposed to amend
the Act so as to oblige the AFC to report on significant disposals of items in
the national collection during the relevant financial year.
This item amends subsection 14(1) to enable the AFC to delegate any of
its powers to the CEO. Subsection 14(1) currently permits delegations to AFC
staff. Under current arrangements such delegations extend to the current CEO of
the AFC as a member of staff.
However, because of proposed amendments
to the Act to make the AFC a Statutory Agency which will employ staff under the
Public Service Act 1999, the office of CEO will become a separate
statutory appointment. Therefore, section 14 must be amended so that the AFC
may delegate its powers to the holder of the new statutory office of
CEO.
Item 13 – Subsection 19(1)
This item amends
subsection 19(1) of the Act in relation to the proposal to provide for 2 Deputy
Chairs as outlined at item 2 above. Subsection 19(1) currently refers to
“the” Deputy Chair. As a result of the proposed amendment to
provide for 2 Deputy Chairs, there may no longer be just one Deputy Chair and
hence the terminology “the” Deputy Chair would no longer be correct.
Therefore, it is proposed to amend subsection 19(1) the Act to delete that
reference and insert a reference to “a” Deputy Chair.
Item
14– at the end of subsection 19(1)
This item amends section 19
of the Act in relation to the proposal to provide for 2 Deputy Chairs as
outlined at items 2 and 13 above. As a consequence of that proposed amendment
it will be necessary to distinguish between the Deputy Chairs for the purposes
of deputising for the Chair as explained at items 3 and 5 above.
It is
proposed that the Governor General may appoint a maximum of 2 Deputy Chairs to
the AFC. It is proposed to insert subsection 19(1A) accordingly.
It is
therefore also proposed to insert subsections 19(1B) to 19(1E). Proposed
subsection 19(1B) describes which subsections set out the rules for seniority
for Deputy Chairs. Proposed subsection 19(1C) will provide for the situation
where there is only one Deputy Chair who will be the First Deputy Chair as
defined in proposed new definition in subsection 3(1). It is intended that, if
there are 2 Deputy Chairs for a particular time, the longest serving Deputy
Chair should be the First Deputy Chair who would then act in the position of
Chair when required.
In assessing who is the longest serving Deputy
Chair it is intended that previous consecutive terms as a Deputy Chair would be
counted. In other words, where a Deputy Chair has been re-appointed as Deputy
Chair on one or more occasions the date of the first appointment decides the
issue. For example, if a Deputy Chair was appointed for the term 1 January
2004 to 30 December 2006 and then re-appointed for a further term from 1 January
2007 to 30 December 2009, that Deputy Chair would have seniority over a Deputy
Chair who was first appointed for a term from 1 January 2007 to 30 December
2009. The Deputy Chair with the seniority would be the First Deputy Chair and
the Deputy Chair who was first appointed from 1 January 2007 would be the second
Deputy Chair. Proposed paragraphs 19(1D)(a) and (b) will be inserted
accordingly.
In addition, it is proposed to give the Minister the power
to nominate which person is to be the First Deputy Chair. It will be necessary
to do this where two Deputy Chairs are appointed at the same time. Once the
Minister has so nominated, the other Deputy Chair is deemed to be the Second
Deputy Chair. Proposed paragraph 19(1E) will be inserted
accordingly.
Item 15 – Subsection 19(2)
This item
amends subsection 19(2) of the Act in relation to the proposal to provide for 2
Deputy Chairs as outlined at item 2 above. Subsection 19(2) currently refers to
“Deputy Chair” meaning the sole Deputy Chair pursuant to the current
Act. As a result of the proposed amendment to provide for 2 Deputy Chairs,
there may no longer be just one Deputy Chair and hence the terminology
“Deputy Chair” would no longer be correct. Therefore, it is
proposed to amend subsection 19(2) the Act to delete that reference and insert a
reference to “a Deputy Chair”.
Item 16 – Subsection
19(3)
This item repeals subsection 19(3) of the Act and inserts a new
subsection consistent with the proposal to provide for 2 Deputy Chairs as
outlined at item 2 above. Subsection 19(3) currently provides that the member
of the AFC who is Deputy Chair is eligible for re-appointment as Deputy Chair
upon ceasing to be Deputy Chair in certain circumstances.
As a result of
the proposed amendment to provide for 2 Deputy Chairs, the subsection would need
consequential amendment. It is intended that the new subsection would be in
exactly the same terms as the existing subsection with the exception of
reference to “a” Deputy Chair rather than “the” Deputy
Chair.
Item 17 – Subsection 19(4)
This item amends
subsection 19(4) of the Act in relation to the proposal to provide for 2 Deputy
Chairs as outlined at item 2 above. The proposed amendment is in the same terms
as the amendment at item 13.
Item 18 – Paragraph
(20)(3)(a)
This item amends paragraph 20(3)(a) of the Act in relation
to the proposal to provide for 2 Deputy Chairs as outlined at items 2,3 and 14
and above. Section 20 deals with acting arrangements for the position of Chair
of the AFC. Paragraph 20(3)(a) currently provides that “the Deputy Chair
shall act”. As a result of the proposed amendment to provide for 2 Deputy
Chairs, the reference should be to the “First Deputy Chair”.
Therefore, it is proposed to amend paragraph 20(3)(a) of the Act to delete
reference to Deputy Chair and insert a provision that the First Deputy Chair
must act.
Item 19 – Paragraph (20)(3)(b)
This item
repeals paragraph 20(3)(b) of the Act and inserts new paragraphs consistent with
the provision to provide for 2 Deputy Chairs as outlined at items 2, 3, 14 and
18 above. Paragraph 20(3)(b) currently provides for acting arrangements for the
Chair if there is no Deputy Chair or the Deputy Chair is not available to act.
In such a case, the Minister may appoint a member to act in the place of the
Chair.
It is proposed to repeal paragraph 20(3)(b) of the Act. Two
proposed new paragraphs will be substituted. The first proposed paragraph will
provide that if, due to absence or inability, the First Deputy Chair is not
available to act the Second Deputy Chair must act in place of the Chair. The
second proposed paragraph 20(3)(c) will be inserted to provide for the instance
where there is no Deputy Chair or no Deputy is available to act in the place of
the Chair. In that circumstance it is proposed that the Minister may appoint a
member to act. This proposed paragraph is in exactly the same terms as
paragraph (20)(3)(b) of the current Act.
Item 20 – Section
26
This item repeals subsection 26(3). Subsection 26(3) was a
provision inserted in to the Act by amendment in 1976 and deals with
superannuation under the Superannuation Act 1976. The provision made in
the subsection is no longer appropriate given current arrangements for
superannuation.
Item 21 – Subsection 28(5)
This item
amends subsection 28(5) of the Act in relation to the proposal to provide for 2
Deputy Chairs as outlined at item 2 above. The proposed amendment is to similar
effect as the amendment at items 14 and 18 providing that the most senior Deputy
Chair present is to act in the place of the Chair at meetings of the AFC.
Item 22 – Subsection 28(6)
This item amends
subsection 28(6) of the Act in relation to the proposal to provide for 2 Deputy
Chairs as outlined at item 2 above. The proposed amendment is in similar terms
as the amendment at item 13 as it provides for the deletion of the words
“and the Deputy Chair” and substitution with the words “the
First Deputy Chair of the Commission and the Second Deputy Chair of the
Commission”.
Item 23 – before section 29, Division 1,
sections 28A, 28B, 28C, 28D, 28E, 28F, 28G, 28H, 28J, 28K
This item
inserts several new sections in relation to the CEO, their appointment, terms
and conditions of appointment, remuneration, termination and resignation and
acting arrangements should the CEO be absent. These new sections are necessary
here because of proposed amendments to the Act to enable the AFC to employ staff
pursuant to the Public Service Act 1999 and the consequential need for
the statutory appointment of a CEO as discussed in item 1. The new sections are
of the kind currently used in similar Commonwealth legislation for a statutory
appointment of this kind.
The proposed new section 28A provides that the
CEO will be responsible for the management of the affairs of the AFC. The AFC
may give written directions to the CEO with the exception of matters pursuant to
the CEO’s powers under the Public Service Act 1999. The CEO is to
act in accordance with such directions.
The proposed new section 28B
provides that the CEO will be appointed by the Minister by instrument. The
appointment will be on a full-time basis and for a term not exceeding 5 years.
The CEO will be eligible for re-appointment.
The proposed new section 28C
provides that the CEO will be paid the remuneration determined by the
Remuneration Tribunal. If no such determination is made, the remuneration for
the CEO may be prescribed by the regulations.
The proposed new section
28D provides that the Remuneration Tribunal will determine the CEO’s
recreation leave entitlements. Should the CEO require other leave, this may be
granted by the Minister who would also determine the remuneration, terms and
other conditions for such leave. In addition, other leave, for a period of less
than 5 working days, may be granted by the Chair of the AFC who would also
determine the remuneration, terms and other conditions for such leave.
The proposed new section 28E provides that the CEO may resign by written
notice to the Minister.
The proposed new section 28F provides that the
CEO must provide the Minister with notice of any interests, pecuniary or
otherwise, that could conflict with the proper performance of his or her
duties.
The proposed new section 28G provides that the CEO must not
engage in paid employment outside the duties of CEO without the Minister’s
approval.
The proposed new section 28H sets out the criteria for
termination of the appointment of the CEO. Subsection 28H(1) is discretionary
and provides that the Minister may terminate the appointment for misbehaviour or
physical or mental incapacity. Subsection 28H(2) is mandatory and requires the
Minister to terminate the appointment if the CEO becomes bankrupt, applies to
take the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors, makes an assignment of his or her
remuneration for the benefit of his or her creditors, or if the CEO is absent
for 14 consecutive days or 28 days in any 12 months (unless on leave of absence
approved by the Chair of the AFC or the Minister), fails without reasonable
excuse to comply with proposed section 28F in relation to disclosure of
interests or engages in paid employment outside the duties of CEO without the
Minister’s approval.
Proposed subsections 28H(3) and (4) provide
that the CEO cannot be retired from office for invalidity where he or she is a
member of a superannuation scheme under the Superannuation Act 1976 or
Superannuation Act 1990 unless the relevant Superannuation Board of
Trustees gives the necessary certificates.
Proposed section 28J provides
that the Minister may determine in writing other terms and conditions for the
office of CEO not already covered by the Act.
Proposed section 28K makes
provision for an acting CEO in the event that the CEO is absent or the position
is vacant.
Item 24 –at the end of section 29, Division
2
This item adds proposed additional subsections 29(3) and (4) at the
end of section 29 of the Act. Proposed subsection 29(3) provides for the
employment of staff pursuant to the Public Service Act 1999 as explained
at item 1 above. Subsection 29(4) provides for the consequential amendments
required in relation to that Act as also explained at items 1 and 23 above.
This provides a mechanism whereby the relevant staff who currently are
employed by the Department of Communications, Information Technology and the
Arts, in the program known as ScreenSound Australia, are able to be transferred
to the AFC by instrument pursuant to paragraph 72(1)(a) of the Public Service
Act 1999 with effect from 1 July 2003.
This item adds the definitions required for the transitional provisions
relating to the integration of ScreenSound Australia and the AFC.
“commencement day” is defined to mean the day on which the Schedule
to the Australian Film Commission Amendment Act 2003 commences.
“Commonwealth program” is defined to mean an administrative program
conducted by or on behalf of the Commonwealth.
“ScreenSound
Australia” means the Commonwealth program administered by the Commonwealth
Department of Communications, Information Technology and the Arts immediately
before the commencement day that was generally known as “ScreenSound
Australia - The National Screen and Sound Archive”.
The AFC is currently managed by the person who occupies the non-statutory
position known as the Chief Executive Officer. As explained at item 1, that
person is a member of staff engaged by the AFC pursuant to section 29 of the
Act. It is proposed that the person currently occupying that non-statutory
position will be taken to have been appointed under the Act as amended as the
new statutory CEO with effect from 1 July 2003 until 31 December 2005 (the end
of his current term of employment). This appointment will be subject to the Act
as amended by this Bill in the same manner as any future appointments.
In order to integrate the AFC and the functions of ScreenSound Australia,
the Commonwealth must transfer of a large number of assets, liabilities,
contractual rights and obligations.
Each declaration is to be published in the Gazette. This
provision will assist interested parties by providing notice of the
transfers.
Each declaration is to be published in the Gazette. This
provision will assist interested parties by providing notice of the
transfers.
The Minister may also declare that, once rights and obligations of a
contract are transferred to the AFC from the Commonwealth, a specified
instrument relating to such contracts will continue to have effect as if a
reference to the Commonwealth was a reference to the AFC.
The Minister
may also declare that the AFC becomes the Commonwealth’s successor in law
to any rights and obligations transferred pursuant to this proposed
provision.
Each declaration to be published in the Gazette. This provision will
assist interested parties by providing notice of the transfers.
This proposed transitional provision is for clarification in the event that
the transfer of any asset, liability or contractual rights or obligations could
be construed to fall in to more than one of those categories. In that event, if
the asset, liability or right and obligation is transferred pursuant to one of
items 27, 28 or 29 then that transfer will be valid despite the fact that the
asset, liability or right and obligation could have been transferred pursuant to
another of the items.
This proposed transitional provision deals with stamp duty in relation to any
transfer or arrangement that might occur pursuant to the matter in items 27, 28
or 29 above or in any way in connection with them. It is intended that no stamp
duty or any other tax under a law of a State or Territory will become
payable.
Proposed subitem (1) provides that no stamp duty or other tax is
payable in respect of an exempt matter or anything connected with such a matter.
Proposed subitem (2) provides that the Minister may certify certain specified
matters to be exempt matters for the purpose of these provisions. Proposed
subitem (3) provides the Minister certificate is evidence of the matter stated
in the certificate. Proposed subitem (4) defines an exempt matter to mean a
transfer or an arrangement under items 27, 28 or 29.
This proposed transitional provision deals with the transfer of records to
the AFC from the Department of Communications, Information Technology and the
Arts. Proposed subitem (1) provides that the Secretary of the Department may
transfer such records to the AFC. Proposed subitem (2) provides that
Commonwealth records can only be transferred pursuant to the Archives Act
1983. Commonwealth record and record have the same meaning in the
Archives Act 1983.