NATIONAL PORTRAIT GALLERY OF AUSTRALIA REGULATIONS 2023 (F2023L01184) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


NATIONAL PORTRAIT GALLERY OF AUSTRALIA REGULATIONS 2023 (F2023L01184)

Explanatory Statement

National Portrait Gallery of Australia Act 2012

National Portrait Gallery of Australia Regulations 2023

Issued by the authority of the Minister for the Arts

Purpose

The purpose of the National Portrait Gallery of Australia Regulations 2023 (the Regulations) is to repeal and remake the current National Portrait Gallery of Australia Regulation 2013, with some minor changes to reflect current drafting practice and ensure that the Regulations continue to be fit for purpose including that, where appropriate, they are consistent with the powers provided to other National Collecting Institutions. In particular, the Regulations:

*         set $2 million as the prescribed limit which the National Portrait Gallery of Australia (Gallery) will require the approval of the Minister to undertake financial transactions;

*         provide for the Director of the Gallery to authorise and place conditions on the sale, supply, disposal, possession and control of liquor on the Gallery's premises;

*         provide for the Director of the Gallery to appoint authorised officers and provide powers to those officers to control access to the Gallery's land or buildings;

*         provide for persons or groups of persons who are prohibited from entering the Gallery's premises to apply to the Administrative Appeals Tribunal for review of that decision;

*         provide for the Director of the Gallery to issue notices setting out a prohibition, condition or restriction relating to the Gallery's land, building or materials; and

*         create certain offences relating to the protection of the Gallery's collection, damaging Gallery premises and property, conduct of visitors and the sale and supply of liquor on the Gallery's premises.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003. The Regulations will commence on the day after they are registered.

Authority

The National Portrait Gallery of Australia Act 2012 (the Act) establishes the Gallery to develop, preserve, maintain, promote and provide access to Australia's national collection of portraits and other works of art. The Gallery's functions are to develop and engage a national audience with these materials through exhibitions, education, research, publications and public and online programs.

Subsection 54(1) of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act. Subsection 54(2) provides that the regulations may prescribe penalties (not exceeding 50 penalty units) for offences under the regulations.

Section 47 of the Act limits the Gallery's power to purchase and dispose of assets exceeding certain financial thresholds. Subsection 47(1) of the Act provides that the regulations will prescribe an amount over which the Gallery must not, without written approval of the Minister: acquire any property, right or privilege; dispose of any property, right or privilege; or enter into a contract for the construction of a building that exceeds the amount that is prescribed by the regulations.

Subsection 52(1) of the Act provides that regulations may be made for and in relation to the sale, supply, disposal, possession or control of liquor on the Gallery's premises in the Australian Capital Territory.

Section 53 of the Act provides for regulations to be made to give the Gallery control over its lands and buildings by regulating, restricting and prohibiting entry of persons onto Gallery land and buildings and also regulating the conduct, and allowing the removal of persons.

The Act does not specify any preconditions that need to be met before the power to make the Regulations may be exercised. The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The notes on the provisions of the Regulations are set out in Attachment A.

Consultation

The Gallery was consulted in advance of drafting the Regulations to confirm the desired policy and operational outcomes that the remade Regulations will support. The Gallery was provided with an opportunity to comment on the final draft in July 2023, with no issues raised.  

The Office of Impact Analysis has confirmed that the preparation of a Regulation Impact Statement is not necessary, as the amendments have a nil or low impact on business or the economy or individuals.

The Attorney General's Department was consulted during the drafting of the Regulations to seek its subject matter expertise on issues including in relation to the operation of the Administrative Appeals Tribunal due to the creation of a reviewable right under section 28; the administrative delegation of the Director's powers and function under section 27; and human rights implication of the Regulations. Advice from the Attorney General's Department was taken into account in finalising the Regulations.

Statement of compatibility with human rights

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.


 

Attachment A

Details of the National Portrait Gallery of Australia Regulations 2023

Part 1--Preliminary

Section 1 - Name of Regulations

This section provides that the name of the Regulations is the National Portrait Gallery of Australia Regulations 2023.

Section 2 - Commencement

This section provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the Regulations are made under the National Portrait Gallery of Australia Act 2012.

Section 4 - Schedules

This section provides that each Regulation that is specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to these Regulations has effect according to its terms.

Section 5 - Definitions

This section provides definitions of terms used in the Regulations.

The note in the section highlights that a number of terms used in the Regulations are defined in the Act, including Board, Director, Gallery, and national collection. These terms have the same meaning in the Regulations as under the Act, pursuant to section 13 of the Legislation Act 2003.

Definitions in this section are:

Act is defined to mean the National Portrait Gallery of Australia Act 2012.

assistance animal is defined to have the same meaning as in the Disability Discrimination Act 1992 which is a dog or other animal that is:

*         accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or

*         accredited by an animal training organisation that is prescribed by the relevant regulations made under the Disability Discrimination Act 1992; or

*         trained:

o   to assist a person with a disability to alleviate the effect of the disability; and

o   to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

authorised liquor supplier is defined to have the same meaning as subsection 8(2) of the Regulations. Section 8 provides for the Director to authorise, in writing, a person, or a class of persons, to sell or supply liquor on liquor-controlled premises.

Director's notice is defined to have the meaning given by subsection 19(1) of the Regulations. Section 19 provides for the Director to issue a notice specifying prohibitions, conditions or restrictions relating to Gallery land, a Gallery building or Gallery material.

engage in conduct is defined to mean do an act or omit to perform an act as defined in subsection 4.1(2) of the Criminal Code Act 1995 (Criminal Code).

Gallery building is defined to mean a building owned by or under the control of the Gallery. Subsection 5(2) of the Regulations makes clear that a reference in the Regulations to a Gallery building includes a reference to any part of that building.

Gallery land is defined to mean land that is owned by or under the control of the Gallery. Subsection 5(2) of the Regulations makes clear that a reference in the Regulations to Gallery land includes a reference to any part of that land.

Gallery material is defined to mean material that forms part of the national collection; other material that is owned by or under the control of the Gallery; or any structure, equipment or material that is kept by the Gallery for the exhibition or display of material, or research, educational or publicity activities in relation to that material.

liquor is defined to have the same meaning as in section 52 of the Act, which means wine, spirits, ale, beer, porter, cider, perry or any liquid containing alcohol ordinarily used or fit for use as a beverage.

liquor controlled premises is defined to have the meaning given by subsection 7(2) of the Regulations and means premises in the Australian Capital Territory owned by, or under the control of, the Gallery.

prohibited article is defined to mean:

*         an implement, other than a pen or pencil, that could be used to damage or conceal Gallery material; or

*         a camera or associated equipment, for example associated equipment includes a tripod or selfie stick; or

*         a bag, case, parcel or other container that cannot be wholly enclosed within a cube each side of which is 300 millimetres in length.

staff member is defined to mean:

*         a member of the staff of the Gallery (see section 41 of the Act); or

*         a person whose services are made available to the Gallery under section 42 of the Act; or

*         an individual who is:

o   a contractor of the Gallery; or

o   a subcontractor of a contractor of the Gallery; or

o   an employee of such a contractor or subcontractor; or

*         a volunteer.

volunteer is defined to mean an individual who works for the Gallery on a voluntary basis.

Part 2--Financial Transactions

Section 6 - Restrictions on Financial Transactions

Part 2 is made for the purposes of prescribing the financial threshold for entering into contracts, above which ministerial approval is required, under paragraphs 47(1)(a) to (e) of the Act.

Section 6 of the Regulations prescribes an amount of $2 million for paragraphs 47(a) to (e) of the Act. This threshold applies where ministerial approval is required under the Act for the a) acquisition of any portrait, another work or related material, b) disposal of any portrait, another work or related material, c) acquisition of any property, right and privilege, d) disposal of any property right and privilege, and e) entering into contracts for the construction of a building.

The amount of $2 million reflects the current prescribed amount set for similar national collecting institutions which was set under the National Collecting Institutions Legislation Amendment (Limits on Financial Transactions) Regulations 2021, where the amount was increased from $1,000,000. The amount provides commercial flexibility and reduces administrative burden on the Gallery, while maintaining appropriate Ministerial oversight of Gallery expenditure.


 

Part 3--Supply of liquor on Gallery premises

Section 7 - Purposes of this Part

This section provides that Part 3 is made for the purposes of subsection 52(1) of the Act. Subsection 52(1) of the Act provides that the regulations may make provision for and in relation to the sale, supply, disposal, possession or control of liquor on premises in the Australian Capital Territory owned by or under the control of the Gallery.

This Part and the framework it provides is required because events are held on Gallery premises where alcohol may be served. For the purposes of the Regulations, subsection 7(2) provides that authorised activity under section 8 of the Regulations relates to the sale or supply of liquor on Gallery premises which are referred to as "liquor controlled premises". This means it applies to activity on premises in the Australian Capital Territory that are owned by or under the control of the Gallery, as provided for under subsection 52(1) of the Act.

Section 8 - Sale or supply of liquor - authorisation

Section 8 relates to authorising the sale or supply of liquor on liquor controlled premises, and sets out what must be specified in an authorisation. This framework is required because, events may be held at the Gallery where alcohol may be served, for example. 

Subsection 8(1) provides the Director may, in writing, authorise a person, or class of persons to sell or supply liquor on Gallery land, or in a Gallery building. This authorisation is not a legislative instrument for the purposes of section 8 of the Legislation Act 2003.

Subsection 8(2) provides that a person who is authorised under subsection 8(1) is an "authorised liquor supplier".

Subsection 8(3) provides that the Director must specify in the authorisation the parts of the liquor controlled premises where liquor may be sold or supplied, and the hours during which liquor may be sold or supplied. Subsection 8(4) provides that the Director may specify in the authorisation other conditions to which the authorisation is subject.

Subsection 8(6) recognises that there may be instances where the Director may vary conditions in authorisations, or set out new conditions in authorisations under subsection 8(1). It requires that the Director must notify the authorised liquor supplier in writing of any intended variations. Subsection 8(7) specifies that if the Director intends to vary an authorisation, the notice must state the day on which the variation will commence and be given to the authorised supplier at least 30 days before that day. This ensures that an 'authorised liquor supplier' is sufficiently notified about any changes in their obligations in their authorisation and has sufficient time put in place any necessary changes.

The Regulations do not provide for merits review of a decision made under section 8, on the basis that the grant of a liquor authorisation relates to commercial decisions made by the Gallery, and it is not clear that an appropriate remedy would be available in circumstances where the Director decided not to authorise a particular person to sell or supply liquor on gallery land or in a Gallery building. This is consistent with the position under similar regulations governing the supply of liquor in certain other national cultural institutions (such as the National Gallery of Australia and National Museum of Australia).

Section 9 - Supply of liquor

Section 9 creates several offences regarding the sale or supply of liquor on liquor controlled premises. These offences are required to ensure that the sale and supply of liquor is controlled, and safe (noting that subsection 52(2) of the Act excludes the law of the Australian Capital Territory relating to the sale, supply and disposal of liquor for premises in respect of which regulations are in force). 

Authorisations

Subsection 9(1) provides that it is an offence if a person sells or supplies liquor on liquor controlled premises. The penalty for this offence is 5 penalty units. 

However, subsection 9(2) provides that the offence provision in subsection 9(1) does not apply to a person:

*         selling or supplying liquor if they are authorised by the Director to sell or supply liquor under subsection 8(1) (s. 9(2)(a)); or

*         supplying liquor (other than by selling it) that was sold or supplied to that person on liquor controlled premises, by an authorised liquor supplier (s. 9(2)(b));.

The note under subsection 9(2) provides that in any prosecution for an offence under subsection 9(1), a defendant intending to rely on an exception in subsection 9(2) bears an evidential burden in relation to the matters in subsection (2). This means the defendant must raise evidence that his or her conduct fell within the exception. If the defendant discharges this evidential burden, the prosecution must disprove the matter beyond reasonable doubt.

Placing the evidential burden on the defendant in this case is appropriate as the matters required to be established--either that the person is themselves authorised or that the liquor was sold or supplied to that person by an authorised liquor supplier -- are matters within the particular knowledge of the defendant. The reversal of the evidential burden of proof is appropriate, having regard to the principles in the Attorney-General's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide).

In regard to paragraph 9(2)(a), it would be disproportionately more difficult and costly, taking into account the relatively low penalty, for the prosecution to prove that an accused person sold or supplied liquor without being authorised to do so than it would be for a person raise evidence of the defence, that they held the appropriate authorisation. An accused could cheaply and readily raise evidence of the authorisation through producing their relevant authorisation.

In regard to paragraph 9(2)(b), it is within the peculiar knowledge of a person supplying liquor (other than by way of sale) that they obtained the liquor on or in liquor controlled premises from an authorised liquor supplier. There may well be no way for the Gallery or staff members to know with certainty the origin of liquor supplied by a person, including the circumstances in which it was first supplied by that person by another party. It would be significantly and disproportionately (given the low penalty) more difficult for the prosecution to provide, for example, that relevant liquor was not supplied to a person on Gallery premises, than it would be for the person to raise evidence that his or her conduct fell within the defence. Once the evidential burden is discharged, the prosecution would then be required to disprove the matter beyond reasonable doubt.

In accordance with the Guide, creating the defence is more readily justified as the offence carries a relatively low penalty of 5 penalty units and the conduct proscribed by the offence aims to achieve the important public health and safety objective of preventing unauthorised supply of liquor, including to minors.

Subsection 9(3) provides that if a person is an authorised liquor supplier, and sells or supplies liquor on liquor controlled premises, they must comply with the conditions to which their authorisation as an authorised liquor supplier is subject to under subsection 8(2) or 8(3). This is required so that an authorised liquor supplier only supplies liquor in compliance with their authorisation. It also provides that it is an offence if a person is subject to a requirement under subsection 8(5), and the person engages in conduct (as defined section 5, meaning they do an act or omit to perform an act as required), and that person's conduct contravenes the requirement. The penalty for this offence is 5 penalty units.

Adulterated liquor

Subsection 9(4) provides that it is an offence if a person on liquor controlled premises sells or supplies liquor and the liquor is adulterated. This is to ensure that the liquor being supplied is genuinely the product described. The penalty for this offence is 5 penalty units. 

Intoxicated persons and minors

Subsection 9(5) provides that is in an offence if a person on liquor controlled premises, sells or supplies liquor to another person and the other person is intoxicated or under 18 years of age.  This is consistent with laws of the Australian Capital Territory which prohibit the supply of alcohol to intoxicated persons. The penalty for this offence is 5 penalty units. 

Subsection 9(6) provides that a person may refuse to sell or supply liquor to another person on liquor controlled premises if the other person does not satisfy the first person of the other person's age. This provision puts it beyond doubt that a person supplying liquor may refuse service if they are not satisfied the person is older than 18 years of age.

The Regulations do not provide for merits review of a decision made under section 9, on the basis that the grant of a liquor authorisation relates to commercial decisions made by the Gallery. This is consistent with the position under similar regulations governing the supply of liquor in certain other national collecting institutions (such as the National Museum of Australia and the National Gallery of Australia).

Section 10 - Buying or obtaining liquor

Subsection 10(1) provides that it is an offence for a person who is under 18 to buy or obtain liquor on liquor controlled premises. The penalty for this offence is 5 penalty units.

Subsection 10(2) creates an offence for a person to send another person, who is under 18, to buy or obtain liquor on their behalf. The penalty for this offence is 5 penalty units.


 

Part 4--Control of Gallery premises

Division 1--Purposes of this Part

 

Section 11 - Purposes of this Part

This section provides that Part 4 is made for the purposes of subsection 53(1) of the Act. Subsection 53(1) of the Act provides that regulations may make provision for and in relation to Gallery lands or buildings for regulating, restricting or prohibiting the entry of persons; regulating the conduct of  persons  or removal of the persons from any such lands or buildings owned by, or under the control of, the Gallery. 

In regulating the conduct of persons on Gallery land or buildings or allowing for the removal of persons from any such land or buildings, including through Director's notice, Part 4 also relies on paragraph 54(1)(b) of the Act for the Governor-General to prescribe matters that are necessary and convenient to giving effect to the Act. In acknowledging that a key function of the Gallery is to preserve and maintain its national collection, including Gallery material, it is necessary to ensure that the Director and Gallery staff can adequately protect the relevant material which is held on the Gallery lands and building (section 7 and 8 of the Act). Section 31 of the Act provides that the Director is responsible for the day to day administration of the Gallery and has power to do all things necessary or convenient to be done in connection with their duties. It is for this reason, that Part 4 makes provision for the Director to appoint relevant staff as authorised officers and makes provision for them to take action where Gallery material is under threat (sections 7 and 9 of the Regulations).


Division 2--Authorised officers

The powers under Division 2 provide authorised officers the ability to respond to the conduct of persons who are, or who will likely be endangering public safety or the safety of staff; persons whose conduct will cause or is likely to cause offence to members of the public or staff; or persons who are likely to commit an offence against the Regulations.

Section 12 - Authorised officers

Section 12 relates to the appointment and identification of "authorised officers".

Subsection 12(1) enables the Director to appoint, by way of a written instrument, a staff member (other than a volunteer) to be an authorised officer. This may include a member of the staff of the Gallery or a Gallery contractor (see the definition of staff member at section 5). Requiring authorised officers to be appointed by written instrument ensures that persons who are conferred powers under the instrument are appointed through a formal process which requires consideration by the Director. The Director would only appoint persons as authorised officers if the Director is reasonably satisfied that they have the appropriate qualifications, skills and training necessary to carry out the role.

Subsection 12(2) provides that the Director must issue an identity card to an authorised officer appointed under subsection 12(1). This is because authorised officers have special powers under the Regulations that other members of staff do not, for example, to direct people to leave the premises and/or apprehend people in certain circumstances. It is important in these circumstances that authorised officers are appropriately identified because actions by an authorised officer under the Regulations can have serious consequences for individuals.

Subsection 12(3) provides that the identity card must contain a recent photograph of the person to whom it is issued and be in the approved form (if any).

Subsection 12(4) provides that an authorised officer must carry the identity card at all times when performing functions or exercising powers as an authorised officer so that they can be identified as such to members of the public.

Subsection 12(5) provides that where a person ceases to be an authorised officer they must return their identity card within 14 days to the Director. Subsection 12(6) provides that a person commits an offence of strict liability if they are subject to a requirement under subsection 12(5), and the person fails to comply with the requirement. This is a strict liability offence, as penalising persons for not returning identity cards is intended to encourage the prompt return of identity cards. This strict liability offence recognises that access to identity cards by individuals who are not appointed authorised officers weakens the security of the Gallery. This could have impacts on public safety, the safety of staff members, and the safety of the national collection. The penalty for this offence is 1 penalty unit.

Subsection 12(7) provides that an offence is not committed under subsection 12(6) if the identity card was lost or destroyed.

The note under subsection 12(7) provides that in any prosecution for an offence under subsection 12(6), a defendant intending to rely on the exception in subsection 12(7) has the evidential burden of showing that the identity card was lost or destroyed. This could be discharged, for example, by providing evidence that the card was reported as lost or destroyed. It is appropriate that the defendant bear the evidential burden in this case as the matters required to be established-- that the person's identity card was lost or destroyed -- are matters within the peculiar knowledge of the defendant. It would be significantly and disproportionately (given the low penalty) more difficult for the prosecution to prove, for example, that a card remains in existence, than it would be for the accused to raise evidence to support that it has been lost or destroyed. Once the evidential burden is discharged, the prosecution would then be required to disprove the matter beyond reasonable doubt.

In accordance with the Guide, creating the defence is more readily justified as the offence carries a relatively low penalty of 5 penalty units and the conduct proscribed by the offence aims to achieve the important public health and safety objective of preventing unauthorised supply of liquor, including to minors.

Section 13 - Powers of authorised officer - prohibiting entry

Section 13 provides that in certain circumstances, an authorised officer may prohibit a person or group of people entry to Gallery land or a Gallery building. These powers are required to ensure the safety and wellbeing of members of the public, staff members or Gallery material.

Subsection 13(1) sets out the grounds on which an authorised officer may prohibit entry. Those grounds are if the authorised officer has reasonable grounds for believing that:

*         the person or group has, under section 14, been directed to leave Gallery land or a Gallery building on one or more occasions; or

*         the person has, under section 15, been removed from Gallery land or a Gallery building on one or more occasions; or

*         public safety or the safety of staff members will be, or is likely to be, endangered by the presence of the person or the group on Gallery land or in a Gallery building; or

*         the conduct of the person or group on Gallery land or in a Gallery building will cause, or is likely to cause, offence to members of the public or staff members; or

*         the person or group is likely to commit an offence against the Regulations.

Subsection 13(2) provides that an authorised officer may prohibit members of the public or staff members from entering Gallery land or a Gallery building if the authorised officer has reasonable grounds for believing the safety of members of the public or staff members on that land or in that building will be, or is likely to be, endangered for any reason.

Section 28 provides for applications to be made to the Administrative Appeal Tribunal for review of an authorised officer's decision under section 13.

Section 14 - Powers of authorised officer - directions to leave

Section 14 provides that in certain circumstances, an authorised officer may direct a person or group of people to leave Gallery land, or a Gallery building. These powers are required to ensure the safety and wellbeing of members of the public, staff members or Gallery material.

Subsection 14(1) sets out the grounds on which an authorised officer may exercise the power to issue a direction to leave. Those grounds are if the authorised officer has reasonable grounds for believing that:

*         public safety or the safety of staff members is, or may be, endangered by the continued presence of the person or the group on Gallery land or in a Gallery building; or

*         the conduct of the person or group on Gallery land or in a Gallery building is likely to cause offence to members of the public or staff members; or

*         the conduct of the person or group on Gallery land or in a Gallery building will cause, or is likely to cause, offence to members of the public or staff members; or

*         the person or group intends to commit, is committing, or has committed, an offence against the regulations.  

Subsection 14(2) provides power for an authorised officer to direct members of the public or staff members to leave the Gallery land or a Gallery building if they believe, on reasonable grounds, that the safety of the public or staff is endangered for any reason.

Section 15 - Powers of authorised officer - apprehension, removal and custody

Section 15 provides that in certain circumstances, an authorised officer may apprehend a person, using such force as is reasonably necessary. These powers are required to ensure the safety and wellbeing of members of the public, staff members or Gallery material.

Subsection 15(1) sets out the grounds on which an authorised officer may exercise the power to apprehend a person. Those grounds are if an authorised officer has reasonable grounds for believing that a person on Gallery land, or in a Gallery building:

*         intends to interfere with, is interfering with, or has interfered with, Gallery material; or

*         intends to damage, is damaging, or has damaged, Gallery land, a Gallery building or Gallery material; or

*         is refusing to comply with a direction given by an authorised officer in the performance of the officer's duties.

Subsection 15(2) allows the authorised officer to apprehend the person, using as much force as is reasonably necessary. The appointment of authorised staff will be limited to staff who have had the necessary training to undertake the functions of an authorised officer. In late 2022, there were a number of incidences in Australian cultural institutions (including the National Gallery of Australia) where protestors sought to undertake acts of civic disobedience including attempting to glue themselves to, and/or vandalise, works of arts. Granting these powers ensures that in these circumstances the Gallery is able to appropriately protect members of the public, Gallery staff and Gallery material including a public collection of over 3,138 works of art valued at over $42.92 million (30 June 2022).[1]

Subsection 15(3) is the power for an authorised officer to either remove the person from Gallery land or a Gallery building or hold the person in custody until the person can be taken into the custody of a member of a police force.

Subsection 15(4) provides that a person who is held in the custody of an authorised officer under subsection 15(3) must be delivered into the custody of a member of a police force as soon as practicable.

Section 16 - Powers of authorised officer - vehicles and similar devices

This section provides that an authorised officer may direct a person who is apparently in charge of a vehicle, motor cycle, bicycle or a similar device for transportation that is on Gallery land, to park the vehicle or device in a specified place on Gallery land, or not to park the vehicle or device on Gallery land, or not to park the vehicle in a specified place on Gallery land.  This power is required to ensure the safety of members of the public, staff members or Gallery material.

Section 17 - Powers of authorised officer - prohibited articles

This section enables an authorised officer to direct a person who is carrying an article that appears to be a prohibited article on Gallery land or in a Gallery building to submit the article for inspection or to leave the article in a designated area. Leaving an article that appears to be prohibited in a designated location ensures that the article is not taken onto Gallery land, or into a Gallery building, and allows for the person to collect it upon exiting the Gallery. This ensures that the Gallery's collection is protected from both intended and unintended damage.

Section 18 - Directions of authorised officers - offence

This section provides that a person commits an offence if the person is on Gallery land or in a Gallery building and they do not comply with a direction from an authorised officer. The purpose of this offence is to enhance the effectiveness of the directions given by authorised officers. Encouraging compliance with directions helps to ensure that Gallery premises are safe and secure for members of the public and staff members. The penalty for this offence is 5 penalty units.


Division 3--Director's notices

Section 19 - Director's notices - issue

Section 19 sets out the power for the Director to issue a Director's notice, sets out what such a notice must contain, and provides for an offence for contravention of a notice.

Subsection 19(1) enables the Director to, by legislative instrument, issue a notice (a Director's notice) that specifies a prohibition, condition or restriction relating to Gallery land, a Gallery building or Gallery material. In accordance with other similar national collecting institutions and international standards of art museum management, the control of persons at the Gallery will be necessary on such issues as the use of cameras and equipment, the safety of the national collection, the conduct of the public and the control of food, liquid and animals in the building. This section enables the Gallery flexible control over its land, buildings, collection and exhibitions to accommodate changing standards of art museum management, appropriate function and event management and technological advances. A recent example of a notice being utilised by the Gallery was to set out conditions in relation to requirements around COVID restrictions. A notice issued under this subsection is not intended to target particular classes of persons or defined individuals and will apply to all patrons of the Gallery equally.

A Director's notice is a legislative instrument for the purposes of  the Legislation Act 2003 and will need to be registered on the Federal Register of Legislation to be enforceable. This will ensure that there is additional transparency and accountability around notices issued.

Subsection 19(2) provides that the notice must state that it has been issued by the authority of the Director and must specify a prohibition, condition or restriction relating to Gallery land, a Gallery building or Gallery material.

Subsection 19(3) provides that a person must comply with the prohibition, condition or restriction of the Director's notice if the person is on Gallery land or in a Gallery building, a copy of the Director's notice is displayed in accordance with subsection (4) and a prohibition, condition or restriction specified in a notice applies to the person. This ensures that there is a positive obligation on any person, subject to the Director's notice, to comply with it.

Subsection 19(4) provides that for the purposes of paragraph (3)(b) a notice must be clearly displayed in a way that gives adequate notice to the public and must be displayed at either or both of the entrances to the area of the Gallery building or Gallery land to which it relates, and the location to which it relates.

Subsection 19(5) provides that a person commits an offence if the person is subject to a requirement under subsection 19(3), and the person engages in conduct (as defined in section 5, meaning they do an act or omit to perform an act as required), and that person's conduct contravenes the requirement. The penalty for contravening a notice is 5 penalty units.


 

Division  4--Other Provisions

Section 20 - Damaging Gallery material and property

Subsection 20(1) provides that a person commits an offence if the person touches or interferes with Gallery material (as defined in section 5) while on Gallery land or in a Gallery building. The purpose of this offence is to act as a deterrent to touching or interfering with Gallery material which includes valuable works of arts from the national collection. The penalty for this offence is 5 penalty units.

Subsection 20(2) section provides that a person commits an offence if they are on Gallery land or in a Gallery building, and engages in conduct (as defined in section 5, meaning they do an act or omit to perform an act) and that results in damage to Gallery material. The purpose of this offence is to act as a deterrent to conduct which may damage Gallery material. This may include, for example, touching Gallery material or interfering with Gallery material which results in damage to material such a as a work of art. The penalty for this offence is 5 penalty units. Subsection 20(3) provides that recklessness or negligence is the fault element for a person's conduct that damages Gallery material mentioned in paragraph 20(2)(c). Where recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element, in accordance with section 5.4 of the Criminal Code Act 1995.

Subsection 20(4) provides that a person commits an offence if they attach an article or write on a building, structure, fixture, fitting, wall or fence; and either the building is a Gallery building or the wall, fence, fixture or fitting is on land that is Gallery land. The purpose of the offence is to act as a deterrent for attaching articles to or writing on a building, fixture, fitting, wall or fence. The penalty for this offence is 5 penalty units.

Subsection 20(5) provides that a person commits an offence if they engage in conduct (as defined section 5, meaning they do an act or omit to perform an act) which damages a building, structure, fixture, fitting, wall, fence, plant or garden; and either the building is a Gallery building; or the fixture, fitting, wall, fence, plant or garden is on Gallery land. The purpose of the offence is to act as a deterrent to such conduct. The penalty for this offence is 5 penalty units.

Subsection 20(6) provides that recklessness or negligence is the fault element for a person's conduct that damages Gallery material mentioned in paragraph 20(5)(b). As noted above, proof of intention or knowledge will be sufficient to satisfy the fault element of recklessness.

Subsection 20(7) provides that section 20 does not limit section 132.8A of the Criminal Code which refers to damaging or destroying Commonwealth property. This provision is important given the unique and valuable collection of the Gallery with 3,138 art works worth $42.92 million.[2]

Section 21 - Selling articles

This section establishes that it is an offence for a person on Gallery land or in a Gallery building to engage in conduct that exposes or causes an article for use or consumption by a member of the public to be exposed for show, sale or hire. The purpose of the offence is to deter any activity which would lessen the control of the Gallery over its premises. The penalty for committing such an offence is 5 penalty units.

Section 22 - Animals

Section 22 provides that in certain circumstances, a person will commit an offence if bringing an animal that belongs to the person or is in their charge, into a Gallery building. This is to ensure that Gallery buildings are both hygienic and safe for members of the public and staff members as well as reducing the potential for damage to Gallery material, while still providing access to the Gallery to people who require an assistance animal, or police force members performing their duties.

Subsection 22(1) establishes it as an offence for a person to allow an animal belonging to them, or in their charge, to enter or remain in a Gallery building. However, subsection 22(2) provides that subsection 22(1) does not apply if the person is a person with a disability and the animal is an assistance animal (as defined in section 5) or the person is a member of a police force acting in accordance with their duties or the animal is under the control of the Gallery.

There is a note under subsection 22(2) which provides that in any prosecution for an offence under subsection 22(1), a defendant intending to rely on the exception in subsection 22(2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence to show that the animal is an assistance animal. It is appropriate that the defendant bear the evidential burden as the matters required to be established - that the person has a disability and an assistance animal; or that a person is a police officer etc - are matters within the peculiar knowledge of the person involved.

It would be significantly and disproportionately more difficult for the prosecution to prove that a person is not a person with a disability and that their animal is not an assistance animal, than it would be for any accused to raise the relevant defence by providing evidence of their own status (and that of their assistance animal). This would similarly be the case in relation to proving that a person is not a police officer acting in accordance with their duties. Once the evidential burden is discharged, the prosecution would then be required to disprove the matter beyond reasonable doubt.

In accordance with the Guide, the penalty for contravention of subsection 22(1) is the relatively low amount of 5 penalty units, which tends to support a defence provision in these circumstances.

Subsection 22(3) creates an offence if a person allows an assistance animal belonging to them, or in their charge, to enter or remain in a Gallery building, and the animal is not kept under control which would include being restrained on a lead or controlled by other reasonable means. The penalty for these offences are 5 penalty units.

Section 23 - Food and liquids

Subsection 23(1) provides that a person commits an offence if they bring food or liquid into a Gallery building, or consume food or liquid in a Gallery building. The penalty is 5 penalty units.

However, subsection 23(2) provides that subsection 23(1) does not apply:

*         if the food or liquid is for medical purpose (for example it is medication); or

*         to bringing water into, or drinking water in, a Gallery building if the water is in a sealed container; or

*         to bringing food or liquid into a Gallery building for the purpose of feeding an infant if the food or liquid is in a sealed container; or

*         to breastfeeding an infant; or

*         to bringing food or liquid into, or consuming food or liquid in, an area in a Gallery building designated for consuming food or liquid.

The note under subsection 23(2) provides that in any prosecution for an offence under subsection 23(1), a defendant intending to rely on the exception in subsection 23(2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence such as a medical certificate stating that the food or liquid is medication. It is appropriate that the defendant bear the evidential burden as the matters required to be established are peculiarly within the knowledge of the person.

Section 24 - Smoking

Subsection 24(1) provides that it is an offence if a person smokes on Gallery land or in a Gallery building.  This offence is required for the health of members of the public and staff members, and to prevent damage to Gallery material (as defined in section 5). The penalty is 5 penalty units.

Subsection 24(2) defines "smokes" for the purpose of these Regulations. It provides that a person smokes if the person uses, consumes, holds or otherwise has control over a tobacco product, non-tobacco smoking product or e-cigarette that is generating (whether or not by burning) smoke or an aerosol or vapour.

Subsection 24(3) defines specific words used in the definition of "smokes" to determine what cannot be smoked for the purposes of these Regulations. The definitions specifically reference new developments and technologies in smoking products, including e-cigarettes, personal vaping products and herbal cigarettes. These are included to put in place similar arrangements to those in place for tobacco products, to prevent damage to Gallery material caused by the gas or vapour being emitted by e-cigarettes, and to provide a healthy environment for members of the public and staff members who may (or may not) suffer from a respiratory medical condition.

Section 25 - Prohibited articles

Subsection 25(1) provides that it is an offence if a person brings a prohibited article into a Gallery building, or if a person uses a prohibited article in a Gallery building. The purpose of this offence is to prevent any unnecessary damage to Gallery material, as well as safety hazards caused by large or sharp personal items that could cause injury to a person. The penalty for committing this offence is 5 penalty units.

However, subsection 25(2) provides that subsection (1) does not apply to:

*         bringing a prohibited article into a Gallery building if the person deposits the item, as soon as practicable, at the place in the Gallery building designated for that purpose; or

*         bringing a camera or camera bag into a Gallery building, or using a camera, for non- commercial purposes.

There is a note under subsection 25(2) which provides that in any prosecution for an offence under subsection 25(1), a defendant intending to rely on the exception in subsection 25(2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence that the prohibited article was deposited at the place in the Gallery building designated for prohibited articles. It is appropriate that the defendant bear the evidential burden as the matters required to be established - such as whether an item has been deposited as soon as practicable or that a camera was used for non-commercial purposes - are peculiarly within the knowledge of the person.


Part 5--Other matters

Section 26 - Defences - consent of Director etc. to conduct

Section 26 provides for certain defences to prosecutions under Parts 3 or 4 of the Regulations, being essentially that the Director (or person authorised by the Director) has consented in writing to the conduct or that the person was acting in accordance with their duties as a member of the Board, the Director or a staff member. These defences are required to ensure that where a person is acting in accordance with their duties, or in accordance with written consent, they are not prosecuted for an action that would otherwise constitute an offence under the Regulations.  For example this section allows for specific activities to be authorised by the Director for such things as particular events or programs.

Subsection 26(1) provides that a person charged with an offence under Part 3 or Part 4 has a defence to that prosecution if, when the relevant conduct was engaged in by the person, the Director (or person authorised by the Director) had consented, in writing, to the conduct.  

Subsection 26(2) provides that a person charged with an offence under Part 3 or Part 4 has a defence to a prosecution if the person is a member of the Board, the Director, a staff member, or a consultant engaged under section 43 of the Act and that person is acting in accordance with their duties.

The note under subsection 26(2) provides that in any prosecution for an offence under subsection 26(1), a defendant intending to rely on the exception in subsection 26(2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence that they were acting in accordance with their duties as a Board member, Director or staff member of the Gallery. These are matters within the peculiar knowledge of the defendant.

It is appropriate that the defendant bears the evidential burden as it would be disproportionately difficult and costly, taking into account the low penalty, for the prosecution to prove that the Director had not consented in writing to a person engaging in conduct that contravenes Part 3 or Part 4 of the Regulations, than for the person to raise evidence of the written consent.

It would be similarly disproportionately difficult and costly for the prosecution to prove that a person is not one of the categories of persons listed in subsection 26(2) and was not acting in accordance with their duties, than for the person to raise evidence of their appointment or employment and associated duties.

Any accused could readily raise evidence of their written consent, or of their appointment or employment and associated duties. Once the evidential burden is discharged, the prosecution would then be required to disprove the matter beyond reasonable doubt.

In accordance with the Guide, creating the defence is more readily justified as the offences carry a relatively low penalty of 5 penalty units.

The defence provisions in section 26 are consistent with the approach taken in similar regulations governing the operation of certain other national cultural institutions, such as the National Gallery of Australia and National Museum of Australia.

Section 27 - Delegations by Director

Section 27 relates to the delegation of the Director's power and functions under the Regulations which include in relation to determining authorised liquor suppliers (section 8), appointing authorised officers (section 12) and issuing Director's notices (section 19). This power is required to ensure that functions and decision-making for the Gallery continues in the Director's absence, for example when taking leave or travelling overseas (noting under the Act, where a Director is absent, the Board may approve an acting Director, where the Minister agrees in writing), or in limited circumstances, when required to allow the efficient operations of the Gallery (for example the ability to delegate to a staff member with the appropriate skills the power to issue an identity card to an authorised officer under subsection 12(2)).

Subsection 27(1) provides that the Director may, in writing, delegate any or all of the Director's powers and functions under these regulations to an employee who is either a member of staff of the Gallery mentioned in section 41 of the Act, or a person whose services are available to the Gallery under subsection 32 of the Act, and is classified as an Executive Level 2 or acting in a position usually occupied by an employee who is classified as Executive Level 2 or is classified as Executive Level 1 or acting in a position usually occupied by an employee who is classified as Executive Level 1. The delegation to Executive Level 2 or 1 employees is appropriate, as due to the small size of the Gallery they do not have officers at the Senior Executive Service level. Where a Director considers it necessary to delegate their powers under this section, they would ensure that the officer to whom a power under the regulations is delegated, has sufficient qualifications, skills and expertise to be a delegate. The Board, as the accountable authority of the Gallery, would have oversight of any delegation.

Subsection 27(2) provides that in delegating their powers to other staff members in accordance with subsection 27(1), the Director must act in accordance with any policies or directions given by the Board.

 

Section 28 - Review of decisions by Administrative Appeals Tribunal

Section 28 provides that applications for reviews of decisions of authorised offices to prohibit a person from entering Gallery land or a Gallery building under section 13 may be made to the Administrative Appeals Tribunal.

The purpose of this is to provide the opportunity for independent merits review of decisions made under section 13 of the Regulations, given that they have the capacity to result in a person being prohibited from the Gallery on an ongoing basis which would affect the rights and interests of that person.


Part 6--Application, saving and transitional provisions

Division 1--Provisions of this instrument as originally made

Section 29 - Definitions for this Division

This section provides that in Part 6 commencement time is defined to mean the time at which these new Regulations commence and the old instrument defined to mean the National Portrait Gallery of Australia Regulation 2013, as in force immediately before the commencement of this section.

Section 30 - Authorisations to supply liquor

This section provides that an authority given under subsection 6(1) of the old instrument and in force immediately before the commencement of this section has effect, from that commencement, as if it were an authorisation given under subsection 8(1) of these Regulations. This is to ensure that existing authorisations about the supply of liquor which are in force continue to exist under these Regulations.

Section 31 - Appointments of authorised officers

Subsections 12(1) and 31(1) are intended to ensure that if a person was appointed under subsection 7(1) of the old instrument to be an authorised officer and certain requirements are met, the appointment will continue to have effect under these Regulations. An authorised officer appointed under subsection 7(1) of the old instrument appointment will have effect as if it had been made under subsection 12(1) of these Regulations, if the appointment of the authorised officer is in force immediately before the commencement time and the person is a staff member at the commencement time.

Subsection 31(3) provides that certificate issued under subsection 7(2) of the old instrument and in force immediately before the commencement of this section, will have effect, from that time, as if it had been issued under subsection 12(2) of these Regulations. This is to ensure that existing appointments, and identity cards in force continue to have effect under these Regulations.

Section 32 - Directions by authorised officers

Directions for persons to leave

Subsection 32(1) provides that any directions to leave Gallery land or a Gallery building made under section 8 of the old instrument, will continue to apply under section 14 of these Regulations. This is to ensure that existing directions to leave can be considered in the application of section 13 which allows authorised officers to prohibit entry to the Gallery land or a Gallery building where a person has been previously directed to leave under section 8 of the old instrument.

Subsection 32(2) provides that where a person who has been removed from Gallery land or a Gallery building under paragraph 9(3)(a) of the old instrument, it will be taken that they have been removed from Gallery land or a Gallery building under paragraph15(3)(a) of these Regulations. This is to ensure that where persons have been previously removed from the Gallery land or building this can be considered in the application of section 13 which allows authorised officers to prohibit entry to the Gallery land or a Gallery building.

Directions above vehicles

Subsection 32(3) provides that a direction given under section 10 of the old instrument in relation to a vehicle, which is in force immediately before the commencement time, will have effect from that commencement, as if it had been issued under section 16 of these Regulations.

Section 33 - Defences - consent of Director etc. to conduct

This section provides that for the purposes of subsection 26(1), it does not matter whether consent was given before, on or after the commencement of this section. This makes it clear that it does not matter when consent was provided by the Director (or a person authorised by the Director) for the purposes of relying on that consent for a defence.

Section 34 - Delegations by Director

Subsection 34(1) provides that a delegation of Director's power under section 25 of the old instrument will apply under section 27 of these Regulations if the delegation was in force immediately before the commencement time and at the commencement time, the person is a staff member mentioned in section 41 of the Act. This is to ensure that existing delegations of power continue to exist under these Regulations.


Schedule 1 - Repeals

National Portrait Gallery of Australia Regulation 2013

Schedule 1 repeals the National Portrait Gallery of Australia Regulation 2013, which is due to sunset on 1 October 2023, so it can be replaced with these Regulations.  


 

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

National Portrait Gallery of Australia Regulations 2023

Overview of the Regulations

The National Portrait Gallery of Australia Act 2012 (the Act) established the National Portrait Gallery of Australia (the Gallery) as Australia's primary agency for the collection, preservation and provision of access to Australia's national collection of portraiture. The Gallery's functions are to  develop, preserve, maintain, promote and provide access to Australia's national collection of portraits and other works of art; and to develop and engage a national audience with these materials through exhibitions, education, research, publications and public and online programs.

The purpose of the National Portrait Gallery of Australia Regulations 2023 (the Regulations) is to repeal and remake the current National Portrait Gallery of Australia Regulation 2013, with some changes to reflect current drafting practice and ensure that the Regulations continue to be fit for purpose. In particular, the Regulations will:

*         set $2 million as the prescribed limit which the Gallery will require the approval of the Minister to undertake financial transactions;

*         provide for the Director of the Gallery to authorise and place conditions on the sale, supply, disposal, possession and control of liquor on Gallery premises;

*         provide for the Director of the Gallery to appoint authorised officers and provide powers to those officers to control access to the Gallery's land or buildings;

*         provide for persons or groups of persons who are prohibited from entering Gallery premises to apply to the Administrative Appeals Tribunal for review of that decision;

*         provide for the Director of the Gallery to issue notices as legislative instruments setting out a prohibition, condition or restriction relating to the Gallery's land, building or materials; and

*         create certain offences relating to the protection of the Gallery and  the collection, damaging Gallery premises and property, conduct of visitors and the sale and supply of liquor on the Gallery's premises.

Human rights implications

The Regulations are compatible with the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

The Regulations engage the following rights:

*         the right to security of the person and freedom from arbitrary detention in article 9 of the International Covenant on Civil and Political Rights (the Civil Rights Covenant)

*         the right to take part in cultural life under article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (the Cultural Rights Covenant)

*         the presumption of innocence in article 14(2) of the Civil Rights Covenant

*         the right to non-discrimination such as race, colour, sex, language, religion, political or other opinion in articles 2, 16 and 26 of the Civil Rights Covenant

*         the right of persons with disabilities to take part on an equal basis with others in cultural life under article 9 of the Convention on the Rights of Persons with Disabilities (Disabilities Convention).

Right to security of the person and freedom from arbitrary detention

Article 9 of the Civil Rights Covenant provides for the right to security of the person and freedom from arbitrary detention. This right requires that persons not be subject to arrest and detention except as provided for by law, and that neither the arrest nor the detention is arbitrary. Arrest or detention may be permissible under domestic law, but nevertheless be arbitrary. Arbitrary is not to be equated with being against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.

Section 15 of the Regulations provides that in certain circumstances, an authorised officer may apprehend a person, using such force as is reasonably necessary. The circumstances in which an authorised officer may exercise the power is limited to when the officer has reasonable grounds for believing that the person on Gallery premises:

*         intends to interfere, is interfering, or has interfered with Gallery material;

*         intends to damage, is damaging, or has damaged Gallery material; or

*         is refusing to comply with a direction given by an authorised office in the performance of the officer's duties.

If an authorised officer apprehends a person for the reasons discussed above, under subsection 15(3) the authorised officer may remove the person from the Gallery premises, or hold the person in custody until the person can be taken into the custody of a member of the police force. 

The Regulations provide that an authorised officer is to be appointed, in writing, by the Director and is to be provided with an identity card. An authorised officer is required under the Regulations to carry the identity card at all times when they are performing their functions, or exercising their powers, and will thus clearly be identifiable to the public when performing their duties (section 12).

An authorised officer has several powers to direct persons on Gallery land on in a Gallery building to do certain things, in particular an authorised officer can direct a person:

*         to leave the Gallery, if the officer has reasonable grounds to believe that the person's conduct may endanger public safety, cause offence to persons, or commit an offence against the Regulations (section 14);

*         who is apparently in charge of a vehicle, motor cycle, bicycle or similar transportation device on Gallery land to park in certain places, or not to park in certain places (section 16); or

*         to submit for inspection possible prohibited articles, or leave such articles in designated places (section 17).

It is noted that the power in section 15 is not one of arrest, but one of apprehension. While not strictly a power of arrest, the apprehension of the person can still lead to interference with the personal liberty of the person and as such it has been assessed against Article 9 of the Civil Rights Covenant. While the apprehension is permissible under domestic law, being authorised by section 14 if the power is enlivened, it may nevertheless be arbitrary if it is vague, or allows for the exercise of powers in broad circumstances that are not sufficiently defined, or is not reasonable or necessary in all circumstances.

Under section 15 it is clearly defined when an authorised officer can exercise the power to apprehend a person. The power can only be exercised if the authorised officer has reasonable grounds for believing that a person is, has or will, interfere or damage Gallery material, or is refusing to comply with a direction of an authorised officer issued in their duties. 

The test of 'reasonable grounds for believing' is an objective test that requires consideration of all of the particular circumstances. It requires that objectively, in the circumstances, there must be reasonable grounds for believing that the conduct mentioned above is about to, has, or is occurring before the authorised officer can exercise the power. The subjective belief of the authorised officer is not relevant to determining whether the power is enlivened.

The first two bases on which an authorised officer can exercise the power relates to the protection of Gallery material from interference and/or damage by a person. Works of art held by the Gallery make up the national collection and many are invaluable in terms of their significance and importance to Australia, and the Australian public. Many of the works of art are also valued at significant amounts of money. In light of the national significance and value of works of art, in order to protect the national collection, it is reasonable, necessary and proportionate for an authorised officer to have a power to apprehend a person who they reasonably believe is, has or will, interfere or damage Gallery material.

The third basis on which an authorised officer can exercise the power to apprehend is when they reasonably believe a person is refusing to comply with a direction of an authorised officer. The direction powers of authorised officers are primarily directed to the safety of the public and staff members, and to prevent Gallery material being damaged or interfered with.  If a person is refusing to abide by a lawful direction of an authorised officer, the continued conduct may endanger the public or staff members, or could present a risk to valuable Gallery material. In these circumstances it is reasonable, necessary and proportionate for an authorised officer to have a power to apprehend a person to protect the public and staff members, and the national collection.

In addition to the reasonableness threshold being met for the power can be exercised by an authorised officer, subsection 15(2) makes it clear that when apprehending the person, the authorised officer can only use such force as is reasonably necessary. This places a further limit on the apprehension power to ensure that the power is exercised reasonably and proportionately in the circumstances.

A further limitation on the power is that the authorised officer, once they have apprehended the person, is to remove the person from the Gallery premises, or hold them in the custody of an authorised officer until the person can be taken into the custody of a member of a police force. If a person is held in the custody of authorised officer they must be delivered into the custody of a member of a police force as soon as practicable. This limitation means that the apprehension is for a finite period of time, until the person has been removed from the Gallery premises where they can no longer endanger the public, the staff, or the national collection, or until they have been taken into custody by a member of a police force exercising their arrest and custodial powers.

While the apprehension power may engage the right to security of the person and freedom from arbitrary detention, it can only be exercised in limited circumstances. Those circumstances are directed to the safety of the public, staff members, and the protection of the national collection. Before the power can be exercised, objectively there must be reasonable grounds for believing that one of the three limited circumstances existed. Further, whilst the power is being exercised, it is subject to important restrictions to ensure only such force as is necessary to apprehend the person is used, and that the apprehension is limited for the time it takes to remove the person from the Gallery premises, or until the person is taken into the custody of a member of the police force. 

Accordingly, to the extent the apprehension power is a limitation on the right to security of the person and freedom from arbitrary detention, for the reasons discussed above, it is reasonable, necessary and proportionate.

Right to take part in cultural life

Article 15 of the Cultural Rights Covenant protects the right of all persons to take part in cultural life. The Regulation regulates access to the Gallery, and as such engages the right to take part in cultural life.

The UN Committee on Economic, Social and Cultural Rights (Committee has stated culture encompasses: ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions.  The same Committee has stated that in order to assure enjoyment of the right to take part in cultural life, countries should provide cultural services that are open for everyone to enjoy and benefit from, including libraries, museums, theatres, cinemas and sports stadiums.

Section 13 of the Regulations relates to the power of an authorised officer employed by the Gallery to prohibit entry to a person or group of persons under certain circumstances. An authorised officer may decide to prohibit entry if that officer has reasonable grounds for believing that:

*       the person or group has, under section 14, been directed to leave Gallery land or a Gallery building on one or more occasions; or

*         the person has, under section 15, been removed from Gallery land or Gallery building  on one or more occasions; or

*         public safety or the safety of staff members will be, or is likely to be, endangered by the presence of the person or the group on Gallery land or Gallery building; or

*         the conduct of the person or group on Gallery land or Gallery building will cause, or is likely to cause, offence to members of the public or staff members; or

*         the person or group is likely to commit an offence against the Regulations.

As an institution that is established to develop and maintain a national collection of portraits and other work of art and related materials, the Gallery has promoted participation in cultural life since it was formally established under the Act in 2012. The Gallery is a place where all persons can access a comprehensive range of portrait artworks relating to Australia, the people who live in Australia and national identity. To prohibit entry to a person or group of persons would limit their ability to participate in cultural life as represented by the collection of the Gallery.

 

This power balances the right of an individual to take part in cultural life with the rights of other Gallery visitors to also enjoy this right in safety and without umbrage. It also provides a necessary and proportionate safeguard to protect the Gallery's collection and land and building, to ensure it remains a safe and community-orientated space for the current and future use for all. The Regulations also provide under section 28 that a decision made by an authorised officer under section 13 to prohibit entry may be subject to independent merits review by way of application to the Administrative Appeals Tribunal.

Presumption of innocence

Article 14 of the Civil Rights Covenant protects the right to be presumed innocent until proven guilty according to law. It provides that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond a reasonable doubt. Article 14 of the ICCPR is engaged because the Regulations contain a strict liability offence which limits the presumption of innocence.

Subsection 12(5) of the Regulation provides that a person commits an offence of strict liability if they cease to be an authorised officer, and do not return their identity card to the Director, within 14 days of it ceasing. This offence is a strict liability offence, recognising that access to identity cards by individuals who are not appointed authorised officers weakens the security of the Gallery. The offence is intended to prevent the misuse of the special powers given to authorised officers once a person ceases their appointment as an authorised officer, and encourage the voluntary return of identity cards from persons who are no longer performing this role. It is also intended to provide for the safety and security of members of the public, staff members and artworks in the Gallery's collection.

This offence is not considered unreasonable as an authorised officer can only perform their duties and exercise powers under these Regulations using their identity card while on Gallery premises, which is issued to the authorised officer specifically and they are required as a condition of their employment to carry it at all times while on duty. Therefore, it is completely within the person's control to return it. The Regulations make an exemption from this strict liability offence for circumstances where a person has lost or destroyed their identity card under subsection 12(7). The evidential burden on proving that the identity card was lost or destroyed is on the defendant. That is, in order for the exception to apply, the defendant must prove that there was a reasonable possibility that the card was lost or destroyed. The penalty for conviction of this offence is 1 penalty unit.

While subsection 12(5) limits the presumption of innocence, it does so for legitimate reasons. In particular the strict liability nature of the offence is necessary to ensure individuals who are not appointed authorised officers do not have access to identity cards and hold themselves out as such, particularly given the significant powers authorised officers can exercise under the Regulations.  Making the offence strict liability will act as a strong incentive for persons to return their identity cards to the Director within the 14 day period.

While an offence of strict liability, it is open to the defendant to prove the exception to the offence if they can show that there was a reasonable possibility that the card was lost or destroyed.  This could be discharged, for example, by providing evidence that the card was reported as being lost or destroyed.  The existence of this exception to the offence is important, as it means that the person can prove they did not commit the offence.

It is also important to note that the penalty should a person be convicted of this offence is on the low end of the spectrum, being 1 penalty unit.  This is another factor that goes to the reasonableness of the strict liability nature of the offence, that as a maximum, only 1 penalty unit can be imposed on a person.

Finally, it is noted that subsections 9(2), 22(2), 23(2), 25(2) and 26(2) of the Regulation provide for exceptions to various offences. For the exceptions to apply, the defendant has the evidential burden of proof to prove the matters mentioned in the subsections. However, these exceptions do not relate to offences of strict liability which limit the presumption of innocence. That is, the prosecution is still required to prove the offences beyond reasonable doubt. Only once an offence has been established beyond a reasonable doubt, the defendant can prove an exception to the offence. As such, the offences to which these exceptions relate, and the reversal of the evidential burden onto the defendant to prove an exception to the offence, do not limit the presumption of innocence.

For the reasons discussed above, to the extent that the strict liability offence in subsection 12(5) is a limitation on the presumption of innocence, it is reasonable, necessary and proportionate and in pursuit of a legitimate object. Accordingly, to the extent the Regulation engages the right to the presumption of innocence, it is compatible with that right.

Right to Non-Discrimination

Non-discrimination is an integral part of the principle of equality. It ensure that no one is denied their rights because of factors such as race, colour, sex, language, religion, political opinion, national or social origins, property or birth. In addition to those grounds, crimination on certain other grounds may be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.

Australia is a party to seven core international human rights treaties. The rights of equality and non-discrimination are contained in articles 2, 16 and 26 of the Civil Rights Covenant. 

Some Commonwealth laws specifically exempt some measures from the prohibition on discrimination. For example, the Age Discrimination Act 2004 (Discrimination Act) exempts direct compliance with Commonwealth laws regarding taxation, social security, superannuation and migration, some health programs and youth wages.

The Discrimination Act provides that it is unlawful to discriminate against another person on the grounds of the other person's age in a wide range of areas of public life, including the provision of goods, services and facilities (section 28). Section 14 of the Discrimination Act defines direct discrimination as follows:

where a person (discriminator) discriminates against another person (aggrieved person) on the ground of the age of the aggrieved person if the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or not materially different,  the discriminator treats or would treat a person of a different age and the discriminator does so because of the age of the aggrieved person, or a characteristic that appertains generally to persons of the age of the aggrieved person, or a characteristic that is generally imputed to persons of the age of the aggrieved person.

Sections 9 and 10 regulate the supply of liquor in relation to liquor controlled premises which are those premises those under control of the Gallery in the Australian Capital Territory. Specifically subsection 9(6) provides that a person commits an offence if they are on liquor controlled premises and sell or supply liquor to someone under 18. Similarly, a person commits an offence under subsection 10(2) if they are under 18 and buy or obtain liquor or they send another person who is under 18 to buy or obtain liquor.

Should this proposal be perceived as direct discrimination, there are available exceptions under the Discrimination Act with subsection 39(4) providing an exemption for all state and territory laws and regulations, including state and territory liquor laws.

Liquor laws in Australia help protect individuals and the community from the harmful effects of alcohol. This legal drinking age in Australia is 18 years or older to buy alcohol or to drink alcohol in a licensed venue. It is illegal to sell alcohol to anyone under 18 years of age. Specifically in the Australia Capital Territory, the Liquor Act 2010, under Division 8.3, provides for offences for the sale and supply of liquor to children and young people.

Australia's drinking guidelines managed by the National Health and Medical Research Council recommend anyone under 18 should not drink alcohol to reduce the risk of health harms and injury.

The restrictions on individuals aged under 18 years in the Regulations are in pursuit of a legitimate objective, consistent with other regulatory approaches, and are reasonable, necessary and proportionate to achieving that objective. Accordingly, to the extent the Regulation engages the right to non-discrimination, it is compatible with that right.

Right of Persons with Disability to Participate in Cultural Life

The Disabilities Convention recognises that barriers that people with a disability may face in realising their rights. The rights under all human rights treaties apply to everyone, including people with disability. However, the Disabilities Convention applied human rights specifically to the context of people with disability.

The Disabilities Convention requires Australia to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disability without discrimination of any kind on the basis of their disability. There is a general obligation to provide 'reasonable accommodation' to ensure people with disability can enjoy their rights on an equal basis with others. It means providing necessary and appropriate modification and adjustments, which do not impose a disproportionate or undue burden, when needed in a particular case.

Article 9 of the Disabilities Convention requires that people with disability have the right to live independently and take part in all aspects of life, which includes cultural life. In relation to economic, social and cultural rights, the Disabilities Convention provides in article 4(2) that Australia undertakes to take measures to the maximum of its available resources and where needed, within the framework of international cooperation, with a view to achieving progressively, the full realisation of economic, social and cultural rights.

The limiting of the use of assistance animals on gallery premises may affect the right to non-discrimination and the rights of persons with disability, particularly Article 30 of the Convention on the Rights of Persons with Disabilities which relates to participation in cultural life.

Section 22 regulates entry of animals into the Gallery with assistance animals within the meaning of the Disability Discrimination Act 1992 (Disability Discrimination Act) allowed. Section 22(3) provides that a person commits an offence if the assistant animal is not kept under the control (whether or not under direct physical control) of the person or another person on their behalf in a Gallery building. This is to ensure that the assistance animal remains under control and does not threaten any harm to artworks or other Gallery visitors and staff.

The Disability Discrimination Act provides that direct and indirect discrimination on the basis of disability is unlawful in a broad range of areas of public life, including access to premises (sections 23-24) and further provides in Section 8 that the Act applies in relation to having an assistance animal in the same way as it applies to having a disability.

There are a limited number of instances when a person with a disability who has an assistance animal may be refused access to premises. Notably, subsection 54A(2) of the Disability Discrimination Act allows a person to request or require that the assistance animals remain under the control of a) the person with the disability or b) another person on behalf of the person with disability. Subsection 54A(3) states that an assistance animal may be under the control of a person even if it is not under the person's direct physical control.

Section 22 of the Regulations is consistent with subsections 54A(2) and (3) of the Disability Discrimination Act which allows a request or to require that the assistance animals remain under the control of the person with the disability, or another person on their behalf, while in a Gallery building. 

The requirement to have an assistance animal under the control of person in the Regulations are in pursuit of a legitimate objective, consistent with other regulatory approaches, and are reasonable, necessary and proportionate to achieving the objective of protecting the Gallery collection and the safety of staff and visitors. Accordingly, to the extent the Regulation engages the right to persons with disability to participate in cultural life, it is compatible with that right.

Conclusion

The Regulations are compatible with human rights. To the extent that they limit any human rights, those impacts are reasonable, necessary and proportionate.



[1] National Portrait Gallery of Australia Annual Report 2021-22, p.8 Annual Performance Statement.

[2] National Portrait Gallery of Australia Annual Report 2012-22, p.8 Annual Performance Statement.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback