South Australian Numbered Acts South Australian Numbered Acts39—Substitution of Parts 2 and 3
Parts 2 and 3—delete the Parts and substitute:
Part 2—Carrick Hill Trust
Division 1—Establishment of Trust
4—Establishment of Trust
(1) The Carrick Hill Trust is established.
(2) The Trust—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) can sue and be sued in its corporate name; and
(d) is an instrumentality of the Crown and holds its property on behalf of the Crown; and
(e) has the functions and powers assigned or conferred under this or any other Act.
Division 2—Membership, proceedings etc
5—Composition of Trust
(1) The Trust will consist of not more than 8 members appointed by the Governor, of whom—
(a) 1 will be nominated by the council of the City of Mitcham from the members, officers or employees of the council; and
(b) the remainder will be nominated by the Minister.
(2) At least 2 members must be women and at least 2 must be men.
(3) The Governor will appoint 1 of the members to be the presiding member.
(4) The Governor may appoint a suitable person to be a deputy of a member (being a person nominated by the body or person who nominated the member) and the deputy may perform or exercise the functions and powers of the member in the member's absence.
6—Conditions of membership
(1) A member will be appointed for a term not exceeding 3 years and on conditions determined by the Governor and specified in the instrument of appointment.
(2) A member will, at the expiration of a term of appointment, be eligible for reappointment (subject to the qualification that a person cannot serve as a member for more than 9 consecutive years).
(3) The Governor may remove a member from office—
(a) for misconduct; or
(b) for failure or incapacity to carry out the duties of his or her office satisfactorily; or
(c) for contravention of a condition of his or her appointment; or
(d) if serious irregularities have occurred in the conduct of the Trust's affairs or the Trust has failed to carry out its functions satisfactorily and its membership should, in the opinion of the Governor, be reconstituted for that reason.
(4) The office of a member becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of an indictable offence or sentenced to imprisonment for an offence; or
(e) ceases to satisfy the qualification by virtue of which the member was eligible for appointment to the Trust; or
(f) is absent without leave of the presiding member of the Trust from 3 consecutive meetings of the Trust; or
(g) is removed from office under subsection (3).
(5) On the office of a member becoming vacant, a person may be appointed in accordance with this Division to the vacant office.
(6) A member is entitled to fees, allowances and expenses determined by the Governor.
7—Proceedings
(1) A quorum of the Trust consists of half of the total number of the members (ignoring any fraction resulting from the division) plus 1.
(2) In the absence of the presiding member from a meeting of the Trust, a member chosen by the members present at the meeting will preside.
(3) A decision carried by a majority of the votes cast by members at a meeting is a decision of the Trust.
(4) Each member present at a meeting of the Trust has 1 vote on any question arising for decision and, if the votes are equal, the member presiding at the meeting may exercise a casting vote.
(5) A conference by telephone or other electronic means between members will, for the purposes of this section, be taken to be a meeting of the Trust at which the participating members are present if—
(a) notice of the conference is given to all members in the manner determined by the Trust for the purpose; and
(b) each participating member is capable of communicating with every other participating member during the conference.
(6) A proposed resolution of the Trust becomes a valid decision of the Trust despite the fact that it is not voted on at a meeting of the Trust if—
(a) notice of the proposed resolution is given to all members in accordance with procedures determined by the Trust; and
(b) a majority of the members expresses concurrence in the proposed resolution by letter, fax or other written communication setting out the terms of the resolution.
(7) The Trust must meet at least 6 times in each year.
(8) The Trust must have accurate minutes kept of its proceedings.
(9) Subject to this Act, the Trust may determine its own procedures.
(10) Subject to the directions of the Trust and section 10, this section applies to a committee of the Trust in the same way as to the Trust.
8—Validity of acts
An act or proceeding of the Trust or a committee of the Trust is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.
9—Ministerial control
(1) Subject to subsection (2), the Trust is subject to the general control and direction of the Minister.
(2) No Ministerial direction can be given—
(a) as to the artistic nature or content of—
(i) objects, works or collections held or promoted by the Trust; or
(ii) performances or other events or activities conducted or promoted by the Trust; or
(b) as to the manner in which the Trust is to deal with a testamentary or other gift; or
(c) as to any advice or recommendation that the Trust makes or is required to make to the Minister.
Division 3—Committees and delegation
10—Committees
(1) The Trust may establish such committees (including advisory committees or subcommittees) as the Trust thinks fit.
(2) The membership and conditions of membership of a committee will be determined by the Trust and may, but need not, consist of, or include, members of the Trust.
(3) The procedures to be observed in relation to the conduct of the business of a committee will be—
(a) as determined by the Trust; and
(b) insofar as a procedure is not determined under paragraph (a)—as determined by the committee.
11—Delegation
(1) The Trust may delegate a function or power of the Trust under this Act (other than this power of delegation) to any person or committee or other body (including a person for the time being performing particular duties or holding or acting in a specified position).
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.
(4) A delegate must not act pursuant to the delegation in any matter in which the delegate has a direct or indirect pecuniary or personal interest.
Maximum penalty: $10 000 or imprisonment for 2 years.
(5) It is a defence to a charge of an offence against subsection (4) to prove that the defendant was, at the time of the alleged offence, unaware of his or her interest in the matter.
(6) In legal proceedings, an apparently genuine certificate, purportedly signed by the Trust containing particulars of a delegation under this section, will, in the absence of proof to the contrary, be accepted as proof that the delegation was made in accordance with the particulars.
Division 4—Conflict of interest under Public Sector (Honesty and Accountability) Act
12—Conflict of interest under Public Sector (Honesty and Accountability) Act
A member of the Trust will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with those engaged in or associated with the arts industry generally, or a substantial section of those engaged in or associated with the arts industry.
Division 5—Common seal and execution of documents
13—Common seal and execution of documents
(1) The common seal of the Trust must not be affixed to a document except in pursuance of a decision of the Trust and the fixing of the seal must be attested by the signatures of 2 members of the Trust.
(2) The Trust may, by instrument under the common seal of the Trust, authorise a person or persons (whether nominated by name or by office or title) to execute documents on behalf of the Trust subject to conditions and limitations (if any) specified in the instrument of authority.
(3) Without limiting subsection (2), the Trust may authorise 2 or more persons to execute documents jointly on behalf of the Trust.
(4) A document is duly executed by the Trust if—
(a) the common seal of the Trust is affixed to the document in accordance with this section; or
(b) the document is signed on behalf of the Trust by a person or persons in accordance with authority conferred under this section.
(5) If an apparently genuine document purports to bear the common seal of the Trust, it will be presumed, in the absence of proof to the contrary, that the common seal of the Trust was duly affixed to the document.
Division 6—Functions and powers of Trust
14—Functions
The functions of the Trust are—
(a) to administer, develop and maintain Carrick Hill for any 1 or more of the following purposes:
(i) as a gallery for the display of works of art;
(ii) as a museum;
(iii) as a botanical garden; and
(b) to promote and encourage the interest of the public in Carrick Hill, its collections and the services and amenities provided by the Trust; and
(c) to perform any other functions assigned to the Trust by this Act or the Minister.
15—Powers
(1) The Trust has, in addition to any other powers conferred on it under this or any other Act, all the powers of a natural person.
(2) The Trust may, for example, do any 1 or more of the following (subject to this Act):
(a) engage agents, consultants or other contractors;
(b) enter into contracts or agreements with artists, performers, entertainers and other persons involved in the arts, or employ such persons;
(c) enter into other contracts, agreements or arrangements;
(d) acquire, hold, take on hire, lend, exchange or dispose of objects, works or collections of artistic, historical or cultural interest;
(e) acquire, hold, deal with or dispose of—
(i) licences; or
(ii) intellectual property (including patents and copyright); or
(iii) any other property (whether real or personal); or
(iv) any interest in such property;
(f) accept grants or obtain financial sponsorship from any person or body;
(g) carry on advertising and promotional activities;
(h) conduct events and establish, operate, manage or make available venues and other facilities (including facilities for food and liquor) at Carrick Hill or other premises of the Trust;
(i) regulate and control admission to any venue for any events or activities conducted or promoted by the Trust, and charge and collect fees for admission to any such venue;
(j) grant for fee or other consideration advertising or sponsorship rights or other rights, licences or concessions in connection with events or activities conducted or promoted by the Trust;
(k) publish or produce books, programs, brochures, films, souvenirs and other information or things relating to events or activities conducted or promoted by the Trust;
(l) sell or supply food and drink (including liquor), books, programs, brochures, films, souvenirs and other things in connection with events or activities conducted or promoted by the Trust;
(m) grant or dispose of rights to televise, broadcast or record any events or activities conducted or promoted by the Trust;
(n) restrict, control and make charges for the use of official insignia;
(o) take out policies of insurance in its own right or on behalf of the State;
(p) participate (whether as a member or otherwise) in, or otherwise be involved in the activities of, national or international organisations or associations involved in the arts, or the promotion of the arts;
(q) give or contribute towards prizes in competitions designed to encourage artistic or cultural or performing arts activity within the State or make grants and give other assistance for such purposes;
(r) enter into any partnership or joint venture arrangement;
(s) form, or acquire, hold, deal with and dispose of shares or other interests in, or securities issued by, bodies corporate, whether within or outside of the State;
(t) borrow money and obtain other forms of financial accommodation;
(u) act as trustee on behalf of another person in connection with the performance of its functions under this Act.
(3) However, the Trust must not—
(a) sell or otherwise dispose of any of its real property without the approval of both Houses of Parliament; or
(b) exercise a power referred to in subsection (2)(s) or (t) without the approval of the Treasurer.
(4) The Trust is not obliged to accept or keep material that is not, in its opinion, of sufficient artistic, historical, cultural or other interest to justify its collection or preservation under this Act.
(5) The Trust may exercise its powers within or outside of the State.
Division 7—Staff
16—Staff
(1) The Trust's staff consists of Public Service employees assigned to assist the Trust.
(2) The Trust may, under an arrangement established by the Minister administering an administrative unit of the Public Service, make use of the services or staff of that administrative unit.
Division 8—Financial matters and annual reports
17—Annual budget
(1) The Trust must, from time to time, prepare and submit to the Minister a budget for the next financial year or for some other period determined by the Minister.
(2) The budget must set out estimates of the Trust's receipts and expenditures for the period to which the budget relates.
(3) The budget must conform with any requirements of the Minister as to its form and the matters to be addressed by the budget.
(4) The Minister may approve a budget submitted under this section with or without modification.
(5) Subject to subsection (6), the Trust must not, without the consent of the Minister, make an expenditure that is not provided for by a budget that has been approved by the Minister under this section.
(6) The Trust is not required to have the approval of the Minister with respect to the expenditure of money received by the Trust by way of a testamentary or other gift.
18—Accounts and audit
(1) The Trust must cause proper accounting records to be kept in relation to the financial affairs of the Trust, and must have annual statements of account prepared in respect of each financial year.
(2) The accounting records and the statements of account must comply with—
(a) any instructions of the Treasurer under section 41 of the Public Finance and Audit Act 1987 ; and
(b) any further requirements imposed by the Auditor-General.
(3) The Auditor-General may at any time audit the accounts of the Trust and must audit the annual statements of account.
19—Annual report
(1) The Trust must, on or before 30 September in every year, forward to the Minister a report on the work and operations of the Trust for the preceding financial year.
(2) The report must contain the audited statements of account of the Trust for the preceding financial year.
(3) The Minister must, within 12 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament.
Part 3—Authorised officers
20—Appointment of authorised officers
(1) The Minister may appoint persons to be authorised officers for the purposes of this Act.
(2) Each police officer is an authorised officer for the purposes of this Act.
(3) An appointment under subsection (1) may be made subject to conditions or limitations specified in the instrument of appointment (and the exercise by an authorised officer of powers conferred under this Act is subject to the conditions and limitations (if any) specified in his or her instrument of appointment).
(4) An authorised officer other than a police officer must be issued with an identity card—
(a) containing the person’s name and a photograph of the person; and
(b) stating that the person is an authorised officer for the purposes of this Act; and
(c) stating any conditions or limitations on the authorised officer’s authority.
(5) An authorised officer must, at the request of a person in relation to whom the authorised officer intends to exercise any powers under this Act, produce for inspection by the person—
(a) in the case of an authorised officer appointed under subsection (1)—his or her identity card; and
(b) in the case of an authorised officer who is a police officer and is not in uniform—his or her certificate of authority.
(6) If a person in possession of an identity card issued to the person under this section ceases to be an authorised officer, the person must immediately return the identity card to the Minister.
Maximum penalty: $250.
21—Powers of authorised officers
(1) If an authorised officer reasonably suspects that a person, while at Carrick Hill or other premises of the Trust, has committed, is committing or is about to commit an offence against this or any other Act, the authorised officer may do any 1 or more of the following:
(a) require the person to state his or her full name and usual place of residence;
(b) if the authorised officer suspects on reasonable grounds that the name or place of residence stated is false—require the person to produce evidence of his or her full name or usual place of residence;
(c) require the person to leave Carrick Hill or those premises immediately and not to return for a stated period (not exceeding 24 hours) or not to enter Carrick Hill or those premises;
(d) if the person refuses or fails to comply with a requirement under paragraph (c)—use such force as is reasonably necessary for the purpose of removing or excluding the person from Carrick Hill or those premises;
(e) cause the person to be detained and handed over into the custody of a police officer as soon as reasonably practicable.
(2) An authorised officer may also—
(a) require a person to surrender any object, substance or thing that the authorised officer reasonably suspects has been, is being, or is about to be, used at Carrick Hill or other premises of the Trust in contravention of this Act; and
(b) give such directions to persons at Carrick Hill or other premises of the Trust that the authorised officer considers necessary for—
(i) the maintenance of good order, the prevention of interference with events or other activities, or the safe and efficient regulation of vehicular or pedestrian traffic, at Carrick Hill or those premises; or
(ii) the protection of property under the care or control of the Trust; and
(c) use such force as may reasonably be required—
(i) for the purpose of removing or excluding from Carrick Hill or other premises of the Trust a person who refuses or fails to comply with a requirement or direction under this section; or
(ii) for the purposes of seizing goods under section 26; and
(d) exercise any other prescribed power.
(3) An authorised officer may, in exercising powers under this Act, be accompanied by such assistants as are reasonably required in the circumstances.
(4) For the purposes of this section, a reference to "Carrick Hill or other premises of the Trust includes a reference to a part of Carrick Hill or those premises.
22—Hindering etc authorised officers
(1) A person who—
(a) without reasonable excuse hinders or obstructs an authorised officer; or
(b) fails to answer a question put by an authorised officer to the best of his or her knowledge, information or belief; or
(c) produces a document that he or she knows, or ought to know, is false or misleading in a material particular; or
(d) fails without reasonable excuse to comply with a requirement or direction of an authorised officer under this Act; or
(e) uses abusive, threatening or insulting language to an authorised officer or a person assisting an authorised officer; or
(f) falsely represents, by words or conduct, that he or she is an authorised officer,
is guilty of an offence.
Maximum penalty: $2 500.
(2) A person is not obliged to answer a question or to produce a document as required under this Act if to do so might tend to incriminate the person or make the person liable to a penalty.
Part 4—Official insignia
23—Interpretation
(1) In this Part—
"official insignia" means—
(a) an official title (declared under section 24); or
(b) a logo (declared under section 24); or
(c) a combination of the above.
(2) For the purposes of this Part, goods will be taken to be marked with official insignia if the insignia is affixed or annexed to, marked on, or incorporated in or with—
(a) the goods; or
(b) any covering or container in which the goods are wholly or partly enclosed; or
(c) anything placed in or attached to any such covering or container; or
(d) anything that is attached to the goods or around which the goods are wrapped or wound.
24—Official titles and logos
(1) The following are declared to be official titles:
(a) Carrick Hill Trust ;
(b) Carrick Hill .
(2) The Minister may, by notice in the Gazette—
(a) declare some other name under which the Trust may conduct its operations or part of its operations to be an official title; or
(b) declare a name or a title of an event or activity conducted or promoted by the Trust to be an official title; or
(c) declare a logo (being a design, the copyright of which is vested in the Crown in right of the State) to be a logo in respect of the Trust or a particular event or activity conducted or promoted by the Trust.
(3) However, the Minister must not make a declaration under subsection (2) in relation to a name or title that is registered or otherwise protected under another Act unless the Minister is acting with the consent or agreement of the person who has the benefit of the registration or protection.
(4) An official title declared under this section is not required to be registered or otherwise protected under any other Act.
(5) The Minister may, by notice in the Gazette, vary or revoke a notice under this section.
25—Unlawful use of official insignia
(1) The Trust has a proprietary interest in all official insignia.
(2) A person must not, without the consent of the Trust, in the course of a trade or business—
(a) use a name in which the Trust has a proprietary interest under this section for the purpose of promoting the sale of services or the provision of any benefits; or
(b) sell goods marked with official insignia; or
(c) use official insignia for the purpose of promoting the sale of goods or services.
Maximum penalty: $20 000.
(3) A person must not, without the consent of the Trust, assume a name or description that consists of, or includes, official insignia.
Maximum penalty: $20 000.
(4) A consent under this section—
(a) may be given with or without conditions (including conditions requiring payment to the Trust); and
(b) may be given generally by notice in the Gazette or by notice in writing addressed to an applicant for the consent; and
(c) may be revoked by the Trust for breach of a condition by notice in writing given personally or by post to a person who has the benefit of the consent.
(5) The Supreme Court may, on the application of the Trust, grant an injunction to restrain a breach of this section.
(6) The court by which a person is convicted of an offence against this section may, on the application of the Trust, order the convicted person to pay compensation of an amount fixed by the court to the Trust.
(7) Subsections (5) and (6) do not derogate from any civil remedy that may be available to the Trust apart from those subsections.
26—Seizure etc of goods marked with official insignia
(1) If—
(a) goods apparently intended for a commercial purpose are marked with official insignia; and
(b) an authorised officer suspects on reasonable grounds that the use of the insignia has not been authorised by the Trust,
the authorised officer may seize those goods.
(2) If goods have been seized under this section and—
(a) proceedings are not instituted for an offence against section 25(2) in relation to the goods within 3 months of their seizure; or
(b) after proceedings have been instituted and completed, the defendant is not convicted,
the person from whom they were seized is entitled to recover—
(c) the goods or, if they have been destroyed, compensation equal to the market value of the goods at the time of their seizure; and
(d) compensation for any loss suffered by reason of the seizure of the goods.
(3) An action for the payment of compensation under subsection (2) may be brought against the Trust in any court of competent jurisdiction.
(4) The court by which a person is convicted of an offence against this Act may order that goods to which the offence relates be forfeited to the Crown.
(5) Any goods forfeited to the Crown must be disposed of in such manner as the Minister may direct and, if sold, the proceeds of the sale paid into the Consolidated Account.
Part 5—Miscellaneous
27—Governor may place Crown land under control of Trust
(1) The Governor may, if of the opinion that it is expedient to do so, place any Crown land under the care, control and management of the Trust.
(2) Land placed under the care, control and management of the Trust under this section will, for the purposes of this Act, be taken to be part of Carrick Hill and must be administered by the Trust in accordance with this Act.
28—Gifts etc
(1) The Trust may accept—
(a) grants, conveyances, transfers and leases of land from the Crown, an instrumentality of the Crown or any other person or body; and
(b) rights to the use, control, management or occupation of any land; and
(c) gifts of personal property of any kind to be used or applied by it for the purposes of this Act.
(2) Despite the Stamp Duties Act 1923 , no stamp duty is payable on any instrument by which land or any interest in or right over land is granted or assured to or vested in the Trust or on any contract or instrument executed by the Trust for the purpose of disposing of any property.
29—Ministerial delegation
(1) The Minister may delegate a function or power of the Minister under this Act (other than this power of delegation) to any person (including a person for the time being performing particular duties or holding or acting in a specified position).
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.
(4) In legal proceedings, an apparently genuine certificate, purportedly signed by the Minister containing particulars of a delegation under this section, will, in the absence of proof to the contrary, be accepted as proof that the delegation was made in accordance with the particulars.
30—Approvals by Treasurer
(1) An approval given by the Treasurer under this Act may be—
(a) specific or general; and
(b) conditional or unconditional.
(2) An approval given by the Treasurer may be varied or revoked by the Treasurer at any time.
31—Regulations
(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.
(2) Without limiting the generality of subsection (1), the regulations may—
(a) provide for the use, care and protection of objects, works, collections or any other property under the care or control of the Trust; and
(b) provide for the admission, exclusion or expulsion of members of the public to or from Carrick Hill or other premises of the Trust or a part of Carrick Hill or those premises; and
(c) prohibit disorderly or offensive behaviour at Carrick Hill or other premises of the Trust; and
(d) prohibit or regulate eating, drinking (including liquor), smoking or the consumption of unlawful substances at Carrick Hill or other premises of the Trust or a part of Carrick Hill or those premises; and
(e) prohibit or regulate any other conduct or activities for the purposes of—
(i) maintaining good order, and preventing interference with events or activities conducted, at Carrick Hill or other premises of the Trust; and
(ii) protecting property under the care or control of the Trust; and
(f) prohibit or regulate the driving, parking or standing of vehicles at Carrick Hill or other premises of the Trust; and
(g) prescribe fees for the parking of vehicles at Carrick Hill or other premises of the Trust and provide for their payment and recovery; and
(h) provide that the owner and driver of a vehicle driven, parked or left standing in contravention of the regulations are each guilty of an offence and provide or exclude defences in relation to any such offence; and
(i) provide for the management (including disposal) by, and vesting in, the Trust of unclaimed property; and
(j) provide for the approval by the Trust or an authorised officer of any act or activity that would otherwise be prohibited under the regulations; and
(k) prescribe penalties not exceeding $1 250 for breach of any regulation.
(3) The regulations may—
(a) be of general or limited application; and
(b) make different provision according to the persons, things or circumstances to which they are expressed to apply; and
(c) provide that any matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister, the Trust or another prescribed person or authority.
(4) In proceedings for an offence against a regulation dealing with the driving, parking or standing of vehicles—
(a) an allegation in a complaint that a person named in the complaint was the owner of a specified vehicle on a specified day will be taken to be proved in the absence of proof to the contrary; and
(b) if it is proved that a vehicle was parked in contravention of a regulation, it will be presumed, in the absence of proof to the contrary, that the vehicle was so parked by the owner of the vehicle.
Part 6—Amendment of "" History Trust of South Australia Act 1981"