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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL FILM AND SOUND ARCHIVE BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment, Heritage and
the Arts,
the Hon. Peter Garrett AM MP)
NATIONAL FILM AND SOUND ARCHIVE BILL 2008
OUTLINE
The National Film and Sound Archive Bill ('the Bill') provides for the
establishment of the National Film and Sound Archive ('NFSA'). The NFSA
functions are to be separated from the Australian Film Commission ('AFC')
at the same time the AFC is being merged into a new agency, Screen
Australia, with the Film Finance Corporation Australia Limited and Film
Australia Limited.
The Bill establishes the NFSA as a body corporate with a Board consisting
of a Chair, a Deputy Chair and between three and seven other members. The
NFSA's staff will comprise a Chief Executive Officer (who is not to be a
member of the Board) and persons engaged under the Public Service Act 1999.
The NFSA will be subject to the Commonwealth Authorities and Companies Act
1997 (the CAC Act).
FINANCIAL IMPACT STATEMENT
The National Film and Sound Archive Bill 2008 is not expected to have a
significant impact on Commonwealth expenditure.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
AFC Australian Film Commission
AFC Act Australian Film Commission Act 1975
Bill National Film and Sound Archive Bill 2008
CAC Act Commonwealth Authorities and Companies Act 1997
CEO Chief Executive Officer
Minister Minister for the Environment, Heritage and the Arts
NFSA National Film and Sound Archive
NOTES ON CLAUSES
Part 1 - Introduction
Clause 1 - Short title
The Bill, when enacted, should be cited as the National Film and Sound
Archive Act 2008.
Clause 2 - Commencement
Item 1 of the table in subclause 2(1) provides that clause 1 (Short title),
clause 2 (Commencement) and any other clause of the Bill not provided for
is to commence on Royal Assent.
Item 2 of the table provides that clauses 3 to 43 are to commence at the
same time as subsection 5(1) of the Screen Australia Act 2008 commences.
Clause 3 - Definitions
Clause 3 sets out definitions of key terms used in the Bill. Some of the
more significant definitions are:
. "Program", which is intended to have a broad meaning. The term 'screen
production' in paragraph (a) is also defined and explained below.
Paragraph (b) includes radio recordings and historical recordings, such
as speeches. The word 'distribution' in paragraph (c) is intended to take
on a broad meaning and includes dissemination of films and other programs
for public release.
. "Screen production", which is intended to have a broad meaning and
encompass all programs capable of being displayed on a screen. It
includes audiovisual films and television productions as well as
audiovisual productions for the internet and other digital media.
Clause 4 - Extended geographic application of this Act
The Bill will extend to every external territory. The Bill would also
apply outside Australia in order to allow the NFSA to engage in activities
overseas. For example, in performing its function of providing access to
the national collection (paragraph 6(1)(a)) the NFSA might use facilities
at an overseas film festival.
Part 2 - National Film and Sound Archive
Clause 5 - Establishment
The NFSA is established as a body corporate with a seal. The CAC Act
applies to the NFSA.
Clause 6 - Functions
This clause sets out the NFSA's functions and how it may perform them. The
NFSA's most important activities will be those related to the national
collection in its custody. However, the NFSA will also be able to
undertake activities relating to programs and related material that are not
in the national collection. Within Australia it has a role in promoting
greater understanding and awareness of film and sound media.
Where, in subclause 6(1), the NFSA has a function of 'promoting' an
activity, this includes both directly engaging in that activity itself and
also providing support to another entity in the conduct of that activity.
The functions of the NFSA include:
. developing, preserving, maintaining, promoting and providing access to a
national collection of programs and related material (subparagraph
6(1)(a)). Access to the national collection can be provided both inside
and outside Australia.
The AFC currently holds a collection, associated with the NFSA and to be
transferred to it, which includes items in a wide range of audiovisual
formats relating to Australia's screen and sound heritage. This current
collection includes films, television programs, audio and video
recordings in all formats, materials in new and emerging audiovisual
formats, broadcast materials and oral histories. It is intended that the
NFSA would build on this collection. Related material would include
posters, scripts, costumes, publicity material, vintage equipment and
manuscript records of notable screen and sound identities etc.
. supporting or promoting the collection of programs by others in Australia
(subparagraph 6(1)(b)), for instance through publishing a directory of
other significant collections;
. supporting, promoting or engaging in the proper preservation and
maintenance of programs not in the national collection and the provision
of access to such programs (subparagraph 6(1)(c)). The provision of
access to such programs is expected to focus on Australian audiences, for
instance through screenings of historic films, in keeping with the intent
of subparagraph 6(1)(d) below. Where screenings outside Australia are
arranged, it is expected that these would focus on items in the national
collection (which may not necessarily be Australian items, for instance
rare prints of foreign films). Where screenings are arranged (outside
Australia) comprising non-Australian films which are not in the national
collection, this should be done in a way which promotes the national
collection;
. supporting or promoting greater understanding and awareness in Australia
of programs (subparagraph 6(1)(d)). This is intended to encompass the
encouragement of greater public engagement within Australia with film and
sound media; and
. any other function conferred on it by any other law of the Commonwealth
(subparagraph 6(1)(e)).
Examples of ways the NFSA could provide support in subsection 6(1) include:
. providing financial assistance by way of grant or otherwise, on
commercial terms or otherwise, but not by way of guarantee (subparagraph
6(2)(a)). This could include funding for visiting experts or for the
exhibition of films and other programs;
. commissioning or sponsoring programs or other activities (subparagraph
6(2)(b)), such as compilations of material in the NFSA's collection;
. providing services, facilities, programs or equipment (subparagraph
6(2)(c)), including undertaking restoration or conservation work on
material held by others.
Subclause 6(3) provides that the NFSA is to, as far as practicable:
. Place an emphasis on the historical and cultural significance of programs
and related material (subparagraph 6(3)(a)).
. Use every endeavour to make the most advantageous use of the national
collection in the national interest (subparagraph 6(3)(b)). 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.
. Apply the highest curatorial standards in performing its functions
(subparagraph 6(3)(c)). This requirement will not only ensure that the
national collection is developed, preserved and maintained to a high
standard but that the same standards are encouraged to be applied by
others collecting or dealing in programs and in relation to the NFSA's
other collections, if any.
. Promote the efficient, effective and ethical use of public resources
(subparagraph 6(3)(d)). This provision recognises that the NFSA is funded
by the Commonwealth and hence public financial and other resources must
be used in an appropriate manner.
The NFSA will be the Commonwealth's primary agency for supporting a
national collection of programs. Therefore, it is important to ensure that
in acquiring and maintaining the national collection the NFSA will have the
appropriate obligation to the nation for that national collection.
Subclause 6(4) provides for the NFSA to charge fees, for example for
admission to public exhibitions of programs or for undertaking preservation
or other technical services work on material.
Subclause 6(5) provides for the NFSA to enter into joint ventures or other
arrangements directed towards the performance of the functions of the NFSA.
In particular it is expected that the NFSA will collaborate closely and
effectively, avoiding duplication of activity, with other Government film
agencies such as Screen Australia or the Australian Film, Television and
Radio School, as well as with other collecting institutions such as the
National Library of Australia or the National Museum of Australia.
Subclause 6(6) invokes certain heads of Commonwealth constitutional power
in relation to the NFSA's powers and functions to ensure the legislation
would continue to have effect if the powers and functions of the NFSA were
confined to those constitutional powers.
Clause 7 - Powers
The NFSA will have the power to do all things necessary or convenient to be
done for or in connection with the performance of its functions as
described in clause 6. This would extend to the purchasing, hiring and
accepting deposits, loans or gifts of programs or related material or
making programs and related material available by hire, loan, sale or
otherwise.
For the avoidance of doubt, subclause 7(2) contains a non-exhaustive list
of specific powers of the NFSA. These include the power to:
. accept various forms of gifts, whether on trust or otherwise. This
recognises the NFSA's role as a national collecting institution will
involve it receiving gifts from time to time (paragraph 7(2)(a));
. act as trustee of various forms of property vested in the NFSA on trust
(paragraph 7(2)(b));
. act on behalf of the Commonwealth or an authority of the Commonwealth in
the administration of a trust relating to programs or matters connected
with programs (paragraph 7(2)(c)). This and paragraph 7(2)(b) recognise
that some programs or matters connected with programs may be created or
administered through trust arrangements;
. do anything incidental to the performance of any of its functions
(paragraph 7(2)(d)).
Subclause 7(3) provides that despite anything contained in the Bill or the
CAC Act, any money, programs or other property held by the NFSA on trust
must be dealt with in accordance with the obligations of the NFSA as
trustee of the trust.
Part 3 - The Board of the National Film and Sound Archive
Division 1 - The Board
Clause 8 - Establishment
This clause establishes the Board of the NFSA.
Clause 9 - Role
This clause sets out the role of the Board. Subclause 9(1) provides that
the Board is responsible for the proper and efficient performance of the
NFSA's functions. The NFSA acts through the Board which has the capacity to
conduct the ordinary business of a board, including setting policies,
procedures and directions for the agency.
Subclause 9(2) provides that the Board has power to do all things necessary
or convenient to be done for or in connection with the performance of its
duties. In this regard, the Board is also able to authorise the CEO or
other staff of the NFSA to carry out specified activities in relation to
the day to day administration under the direction of the Board. A formal
delegation power is not necessary, as the fundamental role of the Board to
be responsible for the proper and efficient performance of the NFSA's
functions should not be delegated.
Subclause 9(3) provides that all acts and things done in the name of, or on
behalf of, the NFSA by the Board, or with the authority of the Board, are
taken to have been done by the NFSA. An authorisation given by the Board
under subclause 9(3) is not a legislative instrument under section 5 of the
Legislative Instruments Act 2003, as it is not legislative in character.
Subclause 9(4) allows all things done in the name of, or on behalf of, the
NFSA by the Board, or with the authority of the Board, to be done on the
basis of the subjective opinion, belief or state of mind of the person or
body doing them.
Clause 10 - Membership
This clause provides that the Board shall consist of the Chair, the Deputy
Chair and between three and seven other members.
Clause 11 - Appointment of Members
Subclause 11(1) provides for the appointment of members including the
Chair. An instrument of appointment would not be a legislative instrument
by virtue of the existing exemption in item 9 of Part 1 of Schedule 1 to
the Legislative Instruments Regulations 2004.
Subclause 11(2) provides that a member holds office on a part-time basis.
Subclause 11(3) provides that a member may be appointed for up to 3 years,
and subclause 11(4) provides that a person's total period of appointment as
a member (whether made up of consecutive or non-consecutive periods) may
not exceed 9 years. It is the intention that a member would usually only
hold office for up to 6 years with the 9 year period of appointment for
special circumstances only.
Subclause 11(5) provides that the performance of the functions or the
exercise of the powers of the Board is not affected by reason only of the
number of members falling below 5 (which is the minimum allowed by clause
10) for a period of not more than six months.
Clause 12 - Acting in Positions
This clause provides that:
. The Deputy Chair is to act as the Chair when there is no Chair or the
Chair is unavailable (subclause 12(1)), and when so acting may exercise
all the Chair's powers and perform all the Chair's functions (paragraph
12(2)(a)). While the Deputy Chair is acting as the Chair, this Bill and
any Act apply to the Deputy Chair as if he or she were the Chair
(paragraph 12(2)(b));
. Anything done by the Deputy Chair when acting as the Chair is not invalid
merely because the occasion for the Deputy Chair to act as the Chair had
not arisen or had ceased (subclause 12(3));
. The Minister may appoint a member to act as the Deputy Chair when there
is no Deputy Chair or the Deputy Chair is unavailable or acting as Chair
(subclause 12(4)); and
. The Minister may appoint a person to act as a member when there is a
vacancy in the office of a member or the member is unavailable or acting
as Chair or Deputy Chair (subclause 12(5)).
Anything done by or in relation to a person acting as Deputy Chair or a
member is not invalid merely because of technical problems in the
appointment (subclause 12(6)).
Instruments of appointment made under this clause would not be legislative
instruments, by virtue of the existing exemption under item 9 of Part 1 of
Schedule 1 to the Legislative Instruments Regulations 2004.
Clause 13 - Remuneration of members
Subclause 13(1) provides that a member is to be paid such remuneration as
is determined by the Remuneration Tribunal or, if no determination of that
remuneration is in operation, the member is to be paid such remuneration as
is prescribed in the regulations. Subclause 13(2) provides that a member
is to be paid such allowances as are prescribed in the regulations.
Clause 13 has effect subject to the Remuneration Tribunal Act 1973 which
provides for the Remuneration Tribunal to conduct inquiries and make
determinations on the remuneration of certain office holders.
Whether a determination of the Remuneration Tribunal is a legislative
instrument would be determined under the Remuneration Tribunal Act 1973.
Clause 14 - Leave of members
The Minister may grant the Chair leave of absence on such terms and
conditions as to remuneration or otherwise as the Minister determines
(subclause 14(1)). The Chair may grant another member leave of absence on
such terms and conditions as the Chair determines (subclause 14(2)). A
grant of leave would not be a legislative instrument, by virtue of the
existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
The Chair must notify the Minister if he or she grants to a member leave of
absence for a period exceeding 6 months (subclause 14(3)). Such a
notification would not be a legislative instrument, by virtue of the
existing exemption under item 20(a) of Part 1 of Schedule 1 to the
Legislative Instruments Regulations 2004.
Clause 15 - Resignation of members
A member may resign by giving the Minister a written notice. Such a notice
would not be a legislative instrument, by virtue of the existing exemption
under item 10 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
Clause 16 - Termination of appointment
This clause sets out the grounds upon which the Minister may terminate the
appointment of a member.
The Minister may terminate the appointment of an individual member for
misbehaviour, physical or mental incapacity (subclause 16(1)).
The Minister must terminate the appointment of a member under subclause
16(2) if:
. the member becomes bankrupt, applies for relief from bankruptcy, enters
into an arrangement with creditors regarding the payment of his or her
debts, or assigns all or part of his or her remuneration for the benefit
of creditors (paragraph 16(2)(a));
. the member fails without reasonable excuse to comply with section 27F or
27J of the CAC Act. Section 27F requires a director of a Commonwealth
authority to give other directors notice of any material personal
interest in a matter which relates to the affairs of the authority, with
certain exceptions. Section 27J prevents a director who has a material
personal interest in a matter which is being considered at a directors'
meeting from being present when that matter is being considered or voting
on it, with certain exceptions (paragraph 16(2)(b)); or
. the member is absent without leave from three consecutive meetings of the
Board (paragraph 16(2)(c)).
An instrument of termination of appointment would not be a legislative
instrument, by virtue of the existing exemption under item 9 of Part 1 of
Schedule 1 to the Legislative Instruments Regulations 2004.
Clause 17 - Other terms and conditions of members
The terms and conditions on which a member holds office are to be as
determined by the Minister except where provided for in the Bill.
An instrument specifying terms and conditions of appointment would not be a
legislative instrument, by virtue of the existing exemption under item 11
of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004.
Division 2 - Board Procedures
Clause 18 - Meetings
Subclause 18(1) requires the Chair to convene meetings of the Board as
necessary for the efficient conduct of the NFSA's affairs.
The quorum for a meeting as provided by subclause 18(2) is a majority of
the current members appointed at the time. However, subclause 18(3)
provides that if section 27J of the CAC Act (which deals with conflicts of
interest and is referred to by subclause 16(2) of the Bill) requires a
member not to be present during deliberations or to take part in a decision
in relation to a matter and this member's absence takes the meeting below
quorum, the remaining members constitute a quorum in relation to that
matter.
Under subclause 18(4), a question arising at a Board meeting is to be
decided by a majority of members present and voting.
The Chair is to preside at all meetings at which he or she is present
(subclause 18(5)). In the absence of the Chair, the Deputy Chair is to
preside (subclause 18(6)). In the absence of both the Chair and the Deputy
Chair, the members present are to elect one of their number to preside
(subclause 18(7)).
Subclause 18(8) provides that the person presiding at a meeting will have a
deliberative vote and, in the event of an equality of votes, also have a
casting vote (i.e. the deciding vote).
Subclause 18(9) provides the Board must keep a record of any decisions made
at a meeting. It is not required to keep a record of all proceedings.
Subject to the Bill and the CAC Act, the NFSA may regulate proceedings at
its meetings as it thinks fit (subclause 18(10)).
Clause 19 - Decisions without meetings
Clause 19 allows the Board to determine that decisions can be made without
a meeting and also the method by which Board members are to indicate
agreement with proposed decisions.
Subclauses 19(1) and 19(2) provide that if the Board determines that clause
19 applies in relation to a particular matter or particular matters and
also determines the method by which members are to indicate agreement to a
proposed decision, a resolution in relation to the matter or matters will
be taken to have been passed at a meeting of the Board if:
. without meeting, a majority of members entitled to vote on the proposed
decision indicate their agreement in accordance with the method
determined by the Board (paragraphs 19(1)(b) and (c)); and
. all members were informed of the proposed decision, or reasonable efforts
had been made to inform them of it (paragraph 19(1)(a)).
A member may not vote on a proposed decision if they would not be entitled
to vote on the proposed decision if the matter had been considered at a
meeting of the Board (subclause 19(3)).
The Board must keep a record of decisions made in accordance with clause 19
(subclause 19(4)).
Part 4 - Chief Executive Officer, staff and consultants
Division 1 - Chief Executive Officer
Clause 20 - Establishment
There is to be a Chief Executive Officer ('CEO') of the NFSA.
Clause 21 - Role
The CEO is responsible for the day-to-day administration of the NFSA
(subclause 21(1)), and has the power to do all things necessary or
convenient to be done for or in connection with the performance of his or
her duties (subclause 21(2)). The CEO must act in accordance with any
policies and directions given by the Board in writing (subclause 21(3)),
except in relation to the CEO's powers under the Public Service Act 1999.
Such policies and directions, should they be in writing, are
administrative, not legislative in character and hence subclause 21(6)
confirms they are not legislative instruments.
All acts and things done in the name of or on behalf of the NFSA by the
CEO, or with the authority of the CEO, are taken to have been done by the
NFSA (subclause 21(4)). An authority given by the CEO is not a legislative
instrument under section 5 of the Legislative Instruments Act 2003, as it
is not legislative in character.
If a function or power of the NFSA is dependent on the opinion, belief or
state of mind of the NFSA in relation to a matter, the function or power
may be exercised upon the opinion, belief or state of mind of the CEO or a
person acting on the authority of the CEO (subclause 21(5)).
Clause 22 - Appointment
The Board appoints the CEO after consulting with the Minister (subclause
22(1)), for a period not to exceed five years (subclause 22(3)). The CEO
holds office on a full-time basis (subclause 22(2)) and must not be a
member of the Board (subclause 22(4)). An instrument of appointment as CEO
would not be a legislative instrument, by virtue of the existing exemption
under item 9 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
Clause 23 - Acting appointments
The Board may, after consulting the Minister, appoint an acting CEO during
a vacancy in the office of CEO or while the CEO is absent or unavailable
(subclause 23(1)). An instrument of appointment as acting CEO would not be
a legislative instrument, by virtue of the existing exemption under item 9
of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004.
It is envisaged that the consultation process could encompass possible
standing arrangements to cover short periods of absence or situations where
urgent acting appointments are required.
Anything done by a person purporting to act under such an appointment is
not invalid merely because of technical problems with the appointment of
the acting CEO (subclause 23(2)).
Clause 24 - Other employment
The CEO must not engage in paid employment outside the duties of the CEO's
office without the Chair's approval (subclause 24(1)). The Chair must
notify the Minister of any such approval (subclause 24(2)). Such approval
would not be a legislative instrument, by virtue of the existing exemption
under item 2 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
Clause 25 - Remuneration
The CEO is to be paid such remuneration as is determined by the
Remuneration Tribunal or, if no determination of that remuneration is in
operation, the CEO is to be paid such remuneration as is prescribed in the
regulations (subclause 25(1)). The Chief CEO is to be paid such allowances
as are prescribed in the regulations (subclause 25(2)).
Clause 25 would have effect subject to the Remuneration Tribunal Act 1973,
which provides for the Remuneration Tribunal to conduct inquiries and make
determinations on the remuneration of certain office holders (subclause
25(3)).
Whether a determination of the Remuneration Tribunal is a legislative
instrument would be determined under the Remuneration Tribunal Act 1973.
Clause 26 - Leave
The CEO will have such recreation leave entitlements as are determined by
the Remuneration Tribunal (subclause 26(1)).
The Chair may grant the CEO leave of absence, other than recreation leave,
on such terms and conditions as to remuneration or otherwise as the Chair
determines (subclause 26(2)). The granting of leave would not be a
legislative instrument, by virtue of the existing exemption under item 11
of Part 1 of Schedule 1 to the Legislative Instrument Regulations 2004.
The Chair must notify the Minister if the Chair grants to the CEO leave for
a period exceeding one month (subclause 26(3)). Such a notification would
not be a legislative instrument, by virtue of the existing exemption under
item 20(a) of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
Clause 27 - Disclosure
Clause 27 provides that the CEO must disclose to the Minister and the Chair
all direct or indirect pecuniary interests that the Chief Executive Officer
has or acquires which conflict or could conflict with the proper
performance of the CEO's duties. Such a disclosure given by the CEO is not
a legislative instrument under section 5 of the Legislative Instruments Act
2003, as it is not legislative in character.
Clause 28 - Resignation
The CEO may resign by giving a written resignation to the Chair (subclause
28(1)). Such a written resignation would not be a legislative instrument,
by virtue of the existing exemption under item 10 of Part 1 of Schedule 1
to the Legislative Instruments Regulations 2004.
The Chair must notify the Minister if the CEO resigns (subclause 28(3)).
Clause 29 - Termination
This clause sets out the grounds upon which the Board may terminate the
appointment of the CEO.
The Board may terminate the appointment of the CEO for misbehaviour,
physical or mental incapacity (paragraph 29(1)(a)). The Board may also
terminate the appointment if in their opinion there has been a significant
period of unsatisfactory performance by the CEO (paragraph 29(1)(b)).
In addition, the Board must terminate the appointment of the CEO under
subclause 29(2) if:
. the CEO becomes bankrupt, applies for relief from bankruptcy, enters into
an arrangement with creditors regarding the payment of his or her debts,
or assigns all or part of his or her remuneration for the benefit of
creditors (paragraph 29(2)(a));
. the CEO is absent without leave for 14 consecutive days or for 28 days in
any 12 months (paragraph 29(2)(b));
. the CEO fails without reasonable excuse to comply with clause 27 of the
Bill, which deals with disclosure of conflicts of interest and possible
conflicts of interest (paragraph 29(2)(c)); or
. without the approval of the Chair under clause 24 of the Bill, the CEO
engages in paid employment outside of the duties of his or her office
(paragraph 29(2)(d)).
If the Board terminates the appointment of the CEO, the Board must notify
the Minister of the termination (subclause 29(3)).
An instrument of termination of appointment would not be a legislative
instrument, by virtue of the existing exemption under item 9 of Part 1 of
Schedule 1 to the Legislative Instruments Regulations 2004.
Clause 30 - Other terms and conditions
Where not covered by this Bill, the terms and conditions on which the CEO
holds office are to be as determined by the Board.
An instrument specifying terms and conditions of appointment would not be a
legislative instrument, by virtue of the existing exemption under item 11
of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004.
Division 2 - Staff and consultants
Clause 31 - Staff
Subclause 31(1) provides that the staff of the NFSA must be people engaged
under the Public Service Act 1999 for the purposes of the NFSA.
Instruments of employment are not legislative instruments, by virtue of the
existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004. Instruments determining conditions of
employment are not legislative instruments, by virtue of the existing
exemption under item 11 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
For the purposes of the Public Service Act 1999, the CEO and the staff of
the NFSA together constitute a Statutory Agency with the CEO as the Head of
that Statutory Agency (subclause 31(2)).
Clause 32 - Consultants
The NFSA may engage consultants to assist in the performance of its
functions. Such a provision is not intended to affect the operation of
clause 7.
An instrument of engagement would not be a legislative instrument, by
virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to
the Legislative Instruments Regulations 2004.
Part 5 - Planning
Clause 33 - Corporate plan
The Board must prepare a corporate plan for NFSA at least once a year
(subclause 33(1)). This plan is a rolling plan and must cover a period of
at least three years from the time it is made (subclause 33(2)). Although
corporate plans will cover at least 3 financial years they will be prepared
on an annual rolling basis so they will be updated annually with the
previous year deleted and a further out year added on.
Subclause 33(3) provides that the Minister may give the Board written
instructions with which the Board must comply when preparing the plan and
any variations to it. For example, this subclause would contemplate the
Minister instructing the Board as to the time when a plan must be submitted
for approval. It is intended that the first corporate plan be prepared by
30 September 2008 and the Minister may instruct the NFSA in this regard.
These instructions are administrative in effect and not legislative in
character, therefore not a legislative instrument under section 5 of the
Legislative Instruments Act 2003. For the avoidance of doubt, subclause
33(4) provides that these instructions are not legislative instruments.
A corporate plan would not be a legislative instrument, by virtue of the
existing exemption under item 34 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
For the purposes of this Clause, in line with usual practice for corporate
plans, a year is a financial year covering a period from 1 July in any year
until 30 June in the following year.
Clause 34 - Contents of corporate plan
Subclause 34(1) provides that the plan must include:
. a statement of the objectives that the NFSA will pursue in the
performance of its functions under clause 6 (paragraph 34(1)(a));
. the strategies and policies that the NFSA will adopt in order to achieve
those objectives (paragraph 34(1)(b));
. performance indicators for the assessment of the NFSA's performance of
its functions. It is expected that these indicators will relate to other
aspects of the NFSA's corporate plan (paragraph 34(1)(c));
. financial targets and projections for the NFSA (paragraph 34(1)(d));
. an analysis of factors likely to affect achievement of targets or create
significant financial risk for the NFSA or for the Commonwealth
(paragraph 34(1)(e));
. a review of recent performance measured against the most recent relevant
plan (paragraph 34(1)(f)). For example, a corporate plan prepared for
2008/09 for the years 2009/10 and beyond, would include a review of
performance of 2007/08 and that part of 2008/09 to date; and
. such other matters as the Minister directs, if any (paragraph 34(1)(g)).
A direction made in writing under paragraph 34(1)(g) would not be a
legislative instrument, because such a direction is included in the
exemption at item 5 of the table in section 7 of the Legislative
Instruments Act 2003. Subclause 34(3) confirms that such a direction is
not a legislative instrument.
The plan may also include any other matters (subclause 34(2)).
Clause 35 - Approval of corporate plan by Minister
The plan must be given to the Minister for approval before the start of the
period to which it relates (subclause 35(1)). The Minister may, by written
notice to the Board, approve the plan or request the Board to revise it for
the reasons set out in the written notice (subclause 35(2)). Such a notice
from the Minister is not a legislative instrument by virtue of the
exemptions in item 21 of the table in section 7 of the Legislative
Instruments Act 2003 and item 3 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004. Additionally, the notice is administrative in
effect and therefore not a legislative instrument under section 5 of the
Legislative Instruments Act 2003. Subclause 35(5) confirms this.
If the Minister requests that the Board revise the plan, the Board must
revise it and give the revised plan to the Minister for approval (subclause
35(3)).
The plan comes into force on the day on which it is approved by the
Minister or the first day of the period to which it relates, whichever
comes first (subclause 35(4)).
Clause 36 - Variation of corporate plan
The Board may at any time vary a corporate plan, whether or not it is in
force (subclause 36(1)).
An instrument that varies an instrument that is not itself a legislative
instrument would not be a legislative instrument, by virtue of the existing
exemption under item 33 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
The Minister may at any time request the Board to vary a corporate plan,
whether or not it is in force. The Board must comply with any such request
(subclause 36(2)). Such a request is not a legislative instrument by virtue
of the exemptions in item 21 of the table in section 7 of the Legislative
Instruments Act 2003 and item 24 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004. Additionally, the notice is administrative in
effect and therefore not a legislative instrument under section 5 of the
Legislative Instruments Act 2003. Subclause 36(6) confirms this
A variation must be given to the Minister for approval (subclause 36(3)),
and comes into force on the day on which it is approved by the Minister
(subclause 36(4)). If the plan is already in force when a variation to it
is approved by the Minister, the plan continues in force on and after the
day on which it is varied (subclause 36(5)). An approval by the Minister
is not a legislative instrument by virtue of the exemptions in item 21 of
the table in section 7 of the Legislative Instruments Act 2003 and item 3
of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004.
Additionally, the notice is administrative in effect and therefore not a
legislative instrument under section 5 of the Legislative Instruments Act
2003. Subclause 36(6) confirms this.
Part 6 - Finance
Clause 37 - Money payable to the National Film and Sound Archive
Money appropriated by the Parliament for the purposes of the NFSA is
payable to the NFSA (subclause 37(1)).
The Finance Minister, or the Minister administering the Financial
Management and Accountability Act 1997, may give directions about the
amount and timing of payments made to the NFSA under this clause (subclause
37(2)). A direction by the Finance Minister is administrative, not
legislative in character and therefore is not a legislative instrument
under section 5 of the Legislative Instruments Act 2003. Subclause 37(3)
confirms this.
Clause 38 - Application of money by the National Film and Sound Archive
The money of the NFSA is to be applied only in payment or discharge of the
costs expenses and other obligations incurred or undertaken by the NFSA in
the performance of its functions and the exercise of its powers, and in
payment of any remuneration or allowances payable under this Bill
(subclause 38(1)).
Subclause 38(1) does not prevent the NFSA investing surplus money under
section 18 of the CAC Act (subclause 38(2)).
Clause 39 - Restrictions on financial transactions
Subject to certain exceptions set out in subsection 39(2), the NFSA must
not, without the approval of the Minister:
. acquire any property, right or privilege for a consideration exceeding in
amount or value the amount prescribed by the regulations (paragraph
39(1)(a));
. dispose of any property, right or privilege if the amount or value of the
consideration for the disposal, or the value of the property, right or
privilege, exceeds the amount prescribed by the regulations (paragraph
39(1)(b));
. enter into a contract for the construction of a building for the NFSA,
being a contract under which the NFSA is to pay an amount exceeding the
amount prescribed by the regulations (paragraph 39(1)(c)); or
. enter into a lease of land for a period exceeding 10 years (paragraph
39(1)(d)).
Paragraphs 39(1)(a) and 39(1)(b) do not apply to the investment of money by
the NFSA under section 18 of the CAC Act (subclause 39(2)).
An approval given by the Minister under subclause 39(1) is not a
legislative instrument by virtue of the exemption in item 3 of Part 1 of
Schedule 1 to the Legislative Instruments Regulations 2004. Additionally,
the notice is administrative in effect and therefore not a legislative
instrument under section 5 of the Legislative Instruments Act 2003.
Subclause 39(4) confirms this.
Clause 40 - Taxation
The NFSA is not subject to taxation under any law of the Commonwealth or of
a State or Territory (subclause 40(1)) unless the regulations provide that
taxation under a specified law applies (subclause 40(2)). This provision
is in line with subsection 41(1) of the AFC Act and hence the NFSA will
have the same tax arrangements as currently exist for the AFC. The result
is that the NFSA would be exempt from tax but still subject to special
taxes such as the Goods and Services Tax. In this regard the note to this
clause explains that despite subclause 40(1) the NFSA may be subject to
taxation under certain laws, for example section 177-5 of the A New Tax
System (Goods and Services Tax) Act 1999 and section 66 of the Fringe
Benefits Tax Assessment Act 1986).
Part 7 - Other matters
Clause 41 - Annual reports
Under section 9 of the CAC Act, the NFSA must prepare an annual report to
be tabled in Parliament by the Minister. Clause 41 provides that the
report must, for the period covered by the report, include particulars of
all disposals of items in the national collection that the NFSA considers
were significant items in the national collection.
Clause 42 - Ministerial direction
The Minister may, by legislative instrument, give written directions to the
Board in relation to the performance of the functions of and the exercise
of the powers of the NFSA (paragraph 42(1)(a)).
The Minister may also, by legislative instrument, require the provision of
a report or advice on matters relating to any of the NFSA's functions or
powers (paragraph 42(1)(b)).
Section 42 of the Legislative Instruments Act 2003, which provides for
disallowance, does not apply to directions given under subclause 42(1) by
virtue of the existing exemption under item 41 of the table in subsection
44(2) of that Act. The sunsetting provision in Part 6 of the Legislative
Instruments Act 2003 do not apply to a direction given under subclause
42(1), by virtue of section 54 of that Act.
The Minister must not give a direction in relation to a decision by the
Board to provide support to a particular person or for a particular program
(subclause 42(2)). The types of support the NFSA may provide are given in
subclause 6(1). 'Program' is a term defined in clause 3.
The Board must ensure that any direction given by the Minister under
subclause 42(1) is complied with (subclause 41(3)).
Clause 42 does not operate to oust section 16 of the CAC Act (subclause
42(4)). Paragraph 42(1)(b) includes directions in relation to specific
matters and not just the general operations of the authority.
Clause 43 - Regulations
The Governor General may make regulations prescribing matters required or
permitted by this Bill to be prescribed or necessary or convenient to be
prescribed for carrying out or giving effect to this Bill.
Any such regulations are legislative instruments under section 6(a) of the
Legislative Instruments Act 2003.