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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIA COUNCIL BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Regional Australia, Regional Development
and Local Government, the Minister for the Arts, the Honourable Simon Crean MP)
AUSTRALIA COUNCIL BILL 2013
OUTLINE
The Australia Council Bill 2013 (the Bill) will replace the Australia Council Act 1975, as
recommended in the report of the Review of the Australia Council (the Review),
which was publicly released on 15 May 2012 by the Minister for the Arts,
the Honourable Simon Crean MP.
The Bill will modernise the enabling legislation of the Australia Council (the Council) by
updating the functions, powers and governance structure of the Council in a manner
consistent with the Australian Government's response to the Review and the governance
arrangements, where appropriate, of other Commonwealth statutory authorities. This Bill
will give the Council the flexibility to establish committees, including for the purposes of
awarding grants based on peer assessment, thus continuing to provide for the needs of
Australian artists and arts organisations in the 21st century context. The Bill also
introduces a skills-based governing board consisting of a Chair, Deputy Chair, and
between five and nine other members with arts or corporate knowledge or expertise, and
the CEO as an ex-officio Board member.
The Council will continue to be subject to the Commonwealth Authorities and Companies
Act 1997 (the CAC Act).
FINANCIAL IMPACT STATEMENT
The Australia Council Bill 2013 is not expected to have a significant impact on
Commonwealth expenditure.
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ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
AC Act Australia Council Act 1975
Bill Australia Council Bill 2013
CAC Act Commonwealth Authorities and Companies Act 1997
CEO Chief Executive Officer
Council Australia Council
FMA Act Financial Management and Accountability Act 1997
Minister Minister with responsibility for the Arts
NFSAA Act National Film and Sound Archive of Australia Act 2008
NPGA National Portrait Gallery of Australia
NPGA Act National Portrait Gallery of Australia Act 2012
Review Review of the Australia Council
SA Screen Australia
SA Act Screen Australia Act 2008
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Australia Council Bill 2013
This Bill is generally compliant with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, aside from specific parts of the Bill which could be
interpreted as discriminatory under article 26 of the International Covenant on Civil and
Political Rights (ICCPR), however those measures are appropriate, reasonable and
legitimate measures, as discussed below.
Overview of the Bill
The purpose of the Bill is to modernise the Council's enabling legislation and implement
the Australian Government's response to the Review through the following measures:
providing for new functions and powers for the Council to support and foster
excellence in Australian arts practice through a diverse range of activities;
updating the Council's governance arrangements to reflect the enabling
legislation of other modern Commonwealth statutory authorities, such as Screen
Australia and the National Portrait Gallery of Australia, including the introduction
of a skills-based governing board and updating of the Council's corporate
planning and reporting requirements;
providing the Council with the flexibility to establish committees to receive
strategic advice on artforms and the arts sector more broadly; and
allowing the Council to determine a new system of peer assessment of grants
applications that focuses on the needs of artists and adapts to developments in a
21st century arts sector.
Human rights implications
The Bill engages the following human rights:
Right to enjoy and benefit from culture
The Bill engages the right to enjoy and benefit from culture, including the right to take
part in cultural life.
Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises the right of everyone to take part in cultural life. The
United Nations Committee on Economic, Social and Cultural Rights has stated that
culture includes oral and written literature, music and song, non-verbal communication,
and the arts more broadly.
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These cultural forms and the right to take part in their creation and enjoyment are
promoted through the Council's functions under clause ^9 of the Bill, including:
by providing support for Australian arts practice that is recognised for excellence,
which allows for Australian artists to create and perform arts that can be enjoyed
by audiences both in Australia and overseas;
by fostering excellence in Australian arts practice through support for a diverse
range of activities, which it is envisaged can include a range of cultural activities
that may be enjoyed by Australian artists and the audiences with whom they
engage through these activities;
by promoting the appreciation, knowledge and understanding of the arts, which
allows for the Council to raise awareness about opportunities for persons to take
part in cultural life through the arts; and
by supporting and promoting the development of markets and audiences for the
arts, which provides opportunities for the Council to encourage persons to take
part in cultural life through engagement with the arts.
Right to freedom of expression
The Bill engages the right to freedom of expression in the form of art.
Article 19(2) of the ICCPR recognises the right to freedom of expression through any
medium, including in the form of art.
This right is promoted through the functions and powers of the Council under clauses ^9
and ^10 of the Bill, in that the Council supports artists to express themselves through art
by providing them with financial assistance to do so.
The right to freedom of expression in the form of art is also promoted in the Bill under
paragraph ^11(b) of the Bill through the requirement for the Council to consider "the
right of persons to freedom in the practice of the arts" in the performance of its functions
and the exercise of its powers. This paragraph is included in the Bill to maintain the
intent of paragraph 5(a)(vi) of the AC Act, that is, for the Council "to uphold and
promote the right of persons to freedom in the practice of the arts".
As an example, the Council would be required, under paragraph ^11(b) of the Bill to
consider the impact of the support it provides and the activities it undertakes on the right
to freedom in the practice of the arts, or, the right to freedom of expression in the form of
art. This may involve the right to freedom in the practice of the arts being considered by
the Council when making decisions on the types of artistic works or projects that may be
eligible for funding by the Council.
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Right to equality and non-discrimination
Article 26 of the ICCPR protects all persons from discrimination in any form on the basis
of prohibited grounds. The prohibited grounds include race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
One of the Council's functions is to support or foster excellence in "Australian arts
practice". "Australian arts practice" includes a definition of Australian artist that refers to
Australian citizens or residents. Subsequently, the definition of "Australian resident"
refers to residents with permanent visa status, and is consistent with the definition of
"Australian resident" included in the Tertiary Education Quality and Standards Agency
Act 2011.
As a consequence of these definitions, the definition of "Australian resident" in the Bill
could be interpreted as an instance of a public authority differentiating on the basis of
residency status. Because the definition of "Australian resident" in the Bill does not
include temporary or foreign residents, these could be regarded as falling under the
definition of "other status" in Article 26 of the ICCPR as interpreted by the United
Nation Human Rights Committee (United Nations Human Rights Committee, General
Comment 18).
The United Nations Human Rights Committee states a differentiation of treatment will
not always constitute discrimination under Article 26 of the ICCPR if the difference in
treatment has a legitimate aim and an objective and reasonable justification (United
Nations Human Rights Committee, General Comment 18, Paragraph 13). The definition
of "Australian resident" (and potential difference in treatment on the basis of residency
status) has been included in the Bill to provide for the new purpose of the Council agreed
in principle in the Australian Government response to the Review, that is, "to support and
promote vibrant and distinctively Australian creative arts practice that is recognised
nationally and internationally as excellent in its field."
In support of the Council's new purpose, the Bill has been drafted such that the Council's
functions will include the provision of support or the undertaking of activities that will
foster excellence in "Australian arts practice". It is envisaged that some of the Council's
functions under clause ^9 could allow for the involvement of temporary or foreign
residents in the activities that the Council supports. However, these activities would
ultimately need to "foster excellence in Australian arts practice". That is, they would
need to demonstrate a benefit to the work of Australian artists, arts organisations, or the
Australian arts sector more broadly. This is because the Council is the Australian
Government's principal arts funding body, and it is a primary role of the Council to
administer Australian Government funding to Australian artists or arts organisations
(comprised of people who are Australian citizens or residents that permanently reside in
Australia).
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Conclusion
The Bill is generally compatible with human rights because it advances the protection of
the right to enjoy and benefit from culture and the right to freedom of expression in the
form of art. These rights are promoted through the functions and powers that provide for
the Council to support and promote Australian arts practice that is recognised for
excellence. This support will allow for artists to create and perform arts that can be
enjoyed by a range of persons both in Australia and overseas.
While the Bill may be interpreted as differentiating between groups on the basis of "other
status" due to the definition of "Australian resident" included in the Bill, this
differentiation has a legitimate aim and objective and reasonable justification in
providing for the Council's functions as the Australian Government's principal arts
funding body.
The Honourable Simon Crean MP
Minister for Regional Australia, Regional Development and Local Government,
Minister for the Arts
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AUSTRALIA COUNCIL BILL 2013
NOTES ON CLAUSES
Part 1 - Preliminary
Clause ^1: Short title
This clause is a formal provision specifying the short title of the Bill. The Bill, when
enacted, should be cited as the Australia Council Act 2013.
Clause ^2: Commencement
Item 1 of the table in subclause ^2(1) provides that clause ^1 (Short title), clause ^2
(Commencement) and any other clause of the Bill not provided for are to commence on
the Royal Assent.
Item 2 of the table provides that clauses ^3 to ^52 are to commence on a date to be fixed
by Proclamation or on the day after six months has elapsed since the Royal Assent,
whichever is sooner.
Commencement by Proclamation has been provided for in the Bill to allow for
Parliamentary timeframes during passage of the Bill and to allow sufficient time to
finalise appointments or instruments related to the Bill prior to commencement.
Clause ^3: Simplified outline
This clause is a simplified outline of the Bill.
Clause ^4: Definitions
Clause ^4 sets out definitions of key terms used in the Bill. The most significant of these
are:
"Arts", which is intended to have a broad meaning, to ensure that the definition
encompasses emerging and hybrid artforms that the Council supports or may
support in the context of a 21st century arts sector. This could include, for
example, digital and interactive artworks.
"Australian arts practice", which is intended to reflect the Australian
Government's agreement to the Review's recommendation that the Council have
an updated purpose, "to support and promote vibrant and distinctively Australian
creative arts practice that is recognised nationally and internationally as excellent
in its field". The definition refers to Australian artists, a term which is intended to
encompass Australian arts organisations.
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"Australian artist" refers to Australian citizens or residents, to make clear that the
Council's support for "Australian arts practice" is achieved through providing
support to Australian citizens or residents.
"Australian resident" is defined using the definition provided in the
Tertiary Education Quality and Standards Agency Act 2011, and clarifies that
"Australian resident" refers to holders of a permanent visa within the meaning of
the Migration Act 1958. The consequence of this is that an artist residing
temporarily in Australia will not be an "Australian artist" for the purposes of the
Bill.
"Committee" refers to committees established under clause ^31 of the Bill. It is
envisaged that committees established under this Bill could include, for example,
an Audit and Finance Committee, a panel established to provide sector experience
and advice on strategy for a particular artform, or a panel of peers established to
assess grants applications.
"Appointed Board member" refers to Board members other than the CEO, as the
CEO is an ex-officio member of the Board of the Council by virtue of having
been appointed to the office of CEO rather than having been appointed to the
Board. Under clause ^27 of the Bill, the CEO has deliberative, but not voting
rights on the Board.
Clause ^5: Extended geographic application of this Act
Clause ^5 of the Bill is intended to make it clear that the operation of the Bill is intended
to extend to every external territory and will apply both within and outside of Australia.
Subclause ^5(3) has been included to ensure that the Council can engage in or support
activities overseas that may benefit Australian artists, arts organisations, or audiences.
For example, in performing its function to support Australian arts practice that is
recognised for excellence, the Council may provide support for Australian artists to
display or perform works at an arts festival, biennale or equivalent overseas.
Clause ^6: Constitutional basis
Clause ^6 invokes certain heads of Commonwealth constitutional power in relation to the
Council's powers and functions to ensure the legislation would continue to have effect if
the powers and functions of the Council were confined to those constitutional powers.
Subclauses ^6(a) and ^6(b) refer to the implied nationhood power of the Parliament, that
is, the implied power of the Parliament to make laws with respect to nationhood. This
head of constitutional power includes the Commonwealth's ability to engage in activities
that are particularly relevant to the government of a nation and which could not be carried
out otherwise. In the context of this Bill, it is envisaged that this could include national
initiatives in the arts, which is a crucial aspect of the Council's mandate, for example,
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through its functions to support and foster excellence in Australian arts practice through a
diverse range of activities.
Subclause ^6(c) refers to the Parliament's power to make laws with respect to
corporations that paragraph 51(xx) of the Constitution applies to. In the context of this
Bill it is envisaged that this could include an incorporated major performing arts
company. The reference to this constitutional head of power relates to the Council's
ability to provide support to corporations in the performance of its functions and the
exercise of its powers.
Subclause ^6(d) refers to the Parliament's power to make laws "in relation to trade and
commerce with other countries, among the States, between Territories or between a
Territory and a State". This constitutional head of power is considered to be relevant to
the Council's function under paragraph ^9(1)(e), "to support and promote the
development of markets and audiences for the arts".
Subclause ^6(e) refers to the Parliament's power to make laws "in relation to the
collection of statistics", which is important for the Council's exercise of the functions it is
given under paragraphs ^9(1)(f), (g) and (h) relating to research.
Subclause ^6(f) refers to the Parliament's power to make laws "in relation to external
affairs". It is envisaged that this power could be relied on in the context of this Bill to
encompass any activities undertaken by the Council either overseas or by engaging
people from overseas in the performance of its functions or the exercise of its powers.
Specifically, this constitutional head of power is relevant to the Council's function to
develop markets and audiences for the arts under paragraph ^9(1)(e), as well as activities
that may be undertaken by the Council under paragraph ^9(1)(b), for example, activities
that foster excellence in Australian arts practice through cultural engagement and the
development of people-to-people links through the arts.
Subclause ^6(g) refers to the Parliament's power to make laws "in relation to a
Territory", and would be relevant to the Council's performance of its functions and the
exercise of its powers within a Territory. For example, this could involve an initiative that
would promote the appreciation, knowledge and understanding of the arts (a function of
the Council under paragraph ^9(1)(d)), and which could involve activities being
undertaken within a Territory.
Subclause ^6(h) refers to the Parliament's power to make laws "in relation to copyrights,
patents, designs and trademarks", and is, in the context of this Bill, related to the
Council's functions to support and foster excellence in Australian arts practice, for
example, through supporting Australian artists to protect and benefit from the intellectual
property in relation to the works they create.
Subclause ^6(i) refers to the Parliament's power to make laws "for purposes relating to
any race for whom it is deemed necessary to make special laws", which may be relevant
to the Council's activities in supporting Australia's diverse arts and cultural practices,
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including, in particular, promoting Aboriginal and Torres Strait Islander arts practice, for
example.
Subclause ^6(j) refers to the Parliament's power to make laws "in relation to the
executive power of the Commonwealth", and is intended to relate to activities that may
be viewed as part of the Commonwealth's execution and maintenance of the Constitution
and the laws of the Commonwealth.
Subclause ^6(k) refers to the Parliament's power to make laws "in relation to matters
incidental to the execution of any of the legislative powers of the Parliament or the
executive power of the Commonwealth", and is intended to encompass any matters that
may be related to the above constitutional heads of power.
Part 2 - The Australia Council
Clause ^7: Establishment
Clause ^7 refers to the body corporate originally established by section 4 of the AC Act
and indicates that the existence of that body corporate is maintained by this Bill, and the
body corporate will continue to be known as the Australia Council.
Although the body corporate has been maintained, the structure of the body corporate is
updated by this Bill. This reflects the Australian Government's agreement to the
Review's recommendation that the Council's enabling legislation should be updated for
consistency with the enabling legislation of other Commonwealth statutory authorities,
such as SA.
Clause ^8: Constitution of the Council
Clause ^8 confirms that the Council, as established, will continue to be a body corporate,
with a seal, that may acquire, hold and dispose of real and personal property and that may
sue and be sued. The note in this subclause confirms that the CAC Act continues to apply
to the Council. The clause is also intended to make it clear that the Board of the Council
has custody of the seal, which can only be used as authorised by the Board.
Clause ^9: Functions
This clause sets out the Council's functions and how it may perform them. The broader
context for the functions of the Council is set out in the Australian Government's
response to the Review, which recommended that the Council have a new purpose -
"to support and promote vibrant and distinctively Australian creative arts practice that is
recognised nationally and internationally as excellent in its field."
Subclause ^9(1) has been informed by this new purpose, whilst maintaining the intent of
some functions from the AC Act which continue to be relevant to the Council's activities
under the new purpose and in the context of a contemporary arts sector.
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The first paragraph under subclause ^9(1), paragraph ^9(1)(a), provides that a function of
the Council is to "support Australian arts practice that is recognised for excellence". This
paragraph reflects the new purpose of the Council as recommended in the Review and
includes the Council's role in making decisions on excellence at arms-length from
government, as well as the Council's leadership role in the Australian arts sector.
Paragraph ^9(1)(b) also implements the Australian Government response to the new
purpose recommended in the Review by enabling the Council "to foster excellence in
Australian arts practice by supporting a diverse range of activities". The inclusion of this
function is intended to ensure that the Council can continue to support a wide variety of
activities that will contribute to the development of excellence in Australian arts practice.
It is envisaged that, aside from the provision of direct support to Australian artists and
arts organisations through paragraph ^9(1)(a), this could include, for example:
supporting artists from overseas to visit Australia and impart their skills and
knowledge to Australian artists, for example, by hosting master classes;
an Australian artist pursuing an arts project involving young people in, for
example, a regional community that will benefit both the community (through
increased access to demonstrations of artistic excellence) and the artist (through
further development of their arts practice); or
a project that facilitates cultural engagement between Australian artists and artists
overseas which would develop people-to-people links and further develop the arts
practice of participants.
Paragraph ^9(1)(c) of the Bill provides the Council with the ability "to recognise and
reward significant contributions made by artists and other persons to the arts in
Australia". This could include, for example:
rewarding an Australian artist for a significant achievement in their practice;
providing an award to an artist from overseas who has contributed to the
development of an Australian arts organisation, for example, as the
Principal Conductor of an orchestra; or
acknowledging the contribution of a prominent business leader or philanthropist
in encouraging investment in Australian arts practice, or for imparting business
knowledge or expertise to Australian artists to support the sustainability of the
Australian arts sector.
Paragraph ^9(1)(d) provides for the Council "to promote the appreciation, knowledge and
understanding of the arts". This highlights the Council's role as an advocate for the arts.
In performing this function, it is envisaged that the Council could support activities that
seek to raise awareness of, or educate the community about, the arts. For example, this
could include demonstrating the benefits the arts can have to both individuals (including
improved academic outcomes) and communities (including improved social cohesion).
Paragraph ^9(1)(e) provides for the Council "to support and promote the development of
markets and audiences for the arts", which is intended to include the Council's role in
ensuring that the work it supports has an audience or market. This was agreed in the
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Australian Government response to the Review as a principle in support of the Council's
new purpose and also highlights the Council's audience development role. It is also
linked to the function listed at paragraph ^9(1)(g), which relates to the conducting and
commissioning of research on the arts, as the performance of this function may assist in
the development of markets and audiences for the arts.
Paragraph ^9(1)(f) requires the Council "to provide information and advice to the
Commonwealth Government on matters connected with the arts or the performance of the
Council's functions". This is intended to allow for the Council to inform the
Australian Government about developments in the contemporary arts sector, with a view
to informing Australian Government policy in relation to the arts. It is envisaged that this
function will also strengthen the Council's accountability to the Australian Government
regarding its activities and the performance of its functions as a Commonwealth statutory
authority. This can be achieved through the Council providing information on the nature
of the activities it is undertaking, how these activities are related to developments in the
contemporary arts sector, as well as providing advice to the Australian Government on
approaches being taken to ensure the efficient and effective performance of the Council's
functions.
Paragraph ^9(1)(g) provides for the Council "to conduct and commission research into,
and publish information about, the arts", which implements the Australian Government
response to the Review, namely that the Council should have a new research function that
is linked to its advocacy role in informing Australian Government policy in relation to the
arts. It is envisaged that this function will include the conducting of research on a
particular artform, research into developments in the Australian arts sector (such as the
careers of Australian artists or audience attendance at arts exhibitions or performances),
as well as national and global trends in the arts more broadly.
Paragraph ^9(1)(h) requires the Council "to evaluate, and publish information about, the
impact of the support the Council provides". This will allow for the Council's role to
measure the impact of the funding it administers to artists and arts organisations in the
service of high accountability standards to be enshrined in the functions, as agreed in the
Australian Government response to the Review. This function is intended to promote
greater accountability and transparency not only to the Government but to the arts sector
regarding the provision of Australian Government funding to the arts.
It was agreed in the Australian Government response to the Review that the Council's
enabling legislation should be updated to reflect the enabling legislation of other modern
Commonwealth statutory authorities, such as SA and the NPGA. Accordingly, under this
Bill, the Council can:
undertake any other function conferred on it by the Bill or by any other law of the
Commonwealth (paragraph ^9(1)(i));
charge fees for the activities it undertakes in performing its functions where
applicable (subclause ^9(2)); and
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cooperate with others so that it may perform its functions (subclause ^9(3)),
which could include the Council developing a public-private sector partnership to
promote funding for the arts.
The Council will also have the ability to undertake anything that may be incidental or
conducive to the performance of the above functions (paragraph ^9(1)(j)), which
maintains the intent of subsection 5(d) of the AC Act.
Clause ^10: Powers
Subclause^10(1) provides the Council with the power to undertake activities that are
necessary for it to perform its functions, or are connected to fulfilling the performance of
its functions.
Subclause ^10(2) goes on to clarify what the Council's powers may include, such as the
ability to:
enter into contracts;
erect buildings, for example, if the Council were to build a building from which it
would operate;
use Commonwealth land that is made available to it for the purposes of the
Council;
acquire, hold and dispose of property, both real and personal;
accept gifts, devises, bequests and assignments, such as donations made to fund
an activity that the Council supports, for example, an arts event or project;
act as a trustee of money or other property vested in the Council on trust;
provide financial assistance, including providing a loan, grant, investment, award,
or other form of financial assistance to an artist or arts organisation that will fulfil
a function of the Council, for example, to support Australian arts practice that is
recognised for excellence;
provide guarantees, whereby the Council would act as a guarantor, for example,
for a loan provided to an artist or arts organisation to create a new work or pursue
an artistic project;
commission or sponsor arts projects or other activities, for example, activities
undertaken by artists or arts organisations that will fulfil a function of the Council,
for example, the promotion, appreciation, knowledge and understanding of the
arts through community engagement;
provide or administer services, facilities, programs or equipment, for example,
administering an Australian Government program that is relevant to a function of
the Council;
do anything incidental to any of the above, or anything incidental to other powers
connected to the performance of the Council's functions.
Subclause ^10(3) is intended to make it clear that regardless of any other provision of the
Bill, if the Council holds money or other property on trust, the Council must deal with the
money or property in accordance with the obligations of being a trustee of the trust. This
subclause also provides that if the Council accepts money or other property subject to a
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condition, the Council must deal with this money or property in accordance with the
condition.
Clause ^11: Matters to be taken into account by Council
Subclause ^11 outlines the matters that the Council must consider in the performance of
its functions and the exercise of its powers, including policies that the
Australian Government may develop in relation to the arts.
The inclusion of paragraph ^11(b) is intended to maintain subclause 5(vi) of the AC Act,
to ensure that the Council will consider the impact of the performance of its functions or
exercise of its powers on the right of persons to freedom in the practice of the arts.
Subclause ^11(c) enables the Minister to specify, by Ministerial Direction under clause
^12 of the Bill, other matters that must be taken into account by the Council.
Clause ^12: Ministerial directions
The Minister is not able to give direction to the Council in relation to decisions made by
the Council on the provision of financial assistance or a guarantee (subclause ^12(2)),
which includes grants, loans, awards or investments as prescribed in paragraph ^10(2)(g).
This was included to ensure the maintenance of the arms-length principle of decision
making established in the AC Act, ensuring that the Council will continue to make
decisions regarding the provision of funding independent of the Australian Government
and free of political interference.
While the Minister cannot give directions relating to the provision of financial assistance
and guarantees as set out above, the Minister is able to give directions to the Board in
relation to the remaining functions and powers of the Council (subclause ^12(1)). The
same subclause also provides that the Minister can request the Council to provide a report
or advice on matters relating to the Council's functions or powers. Any directions
provided by the Minister under this clause are legislative instruments within the meaning
of the Legislative Instruments Act 2003 and must be tabled in Parliament.
The Board is responsible for ensuring Ministerial directions to the Council are complied
with under subclause ^12(3).
Subclause ^12(4) is intended to make it clear that this section of the Bill does not limit
the operation of section 16 of the CAC Act, which relates to keeping the responsible
Minister and Finance Minister informed of the operations of a Commonwealth statutory
authority, as well as the provision of reports, documents and information relating to those
operations in a timely manner as required by the responsible Minister or Finance
Minister.
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Clause ^13: Council does not have privileges and immunities of the Crown
Clause ^13 is intended to make it clear that the Council does not have the privileges and
immunities of the Crown in right of the Commonwealth, other than those provided by
legislation or the Constitution. The inclusion of this provision reflects the
Australian Government's response to the Review's recommendation that the Council's
enabling legislation be updated in a manner consistent with the enabling legislation of
other Commonwealth statutory authorities.
Part 3 - The Board of the Australia Council
Division 1 - The Board
Clause ^14: Establishment
This clause establishes the Board of the Council.
Clause ^15: Role
Clause ^15 sets out the role of the Board. The Board of the Council is responsible for the
proper and efficient performance of the Council's functions (subclause ^15(1)), and has
the power to do all things necessary or convenient to be done for or in connection with
the performance of its duties (subclause ^15(2)).
Subclause ^15(3) provides that activities undertaken by the Board in the name of, or on
behalf of the Council, are to be taken to have been done by the Council. The subclause
also provides the Board with the capacity to authorise the CEO or other Council staff to
undertake activities in the name of, or on behalf of, the Council.
It is intended that the Council acts under the direction of the Board, which includes
supporting Australian arts practice recognised for excellence through peer assessment.
It is envisaged that this could involve the Board of the Council authorising peers to assess
grants, which would later be endorsed by either the Board or the CEO. A formal
delegated power is not necessary, as it is the fundamental role of the Board to be
responsible for ensuring that the Council performs its functions properly and efficiently.
Subclause ^15(4) allows all things done in the name of, or on behalf of, the Council by
the Board, or with the authority of the Board, to be done on the basis of the subjective
opinion, belief or state of mind of the person or body doing them. This allows for artist
peers to use their knowledge and expertise in assessing and making recommendations to
the Board or the CEO of the Council on grants applications.
15
Clause ^16: Membership
Subclause ^16(1) provides that the Board of the Council will consist of the Chair, the
Deputy Chair, the CEO, and between five and nine other members. The effect of
paragraph ^16(1)(c) is that the CEO is as an ex-officio member of the Board, that is,
by virtue of holding the office of CEO. This maintains the CEO's ex-officio status on the
Board of the Council, which was suggested in the Review and provided for in subsection
9(4B) of the AC Act if the Chair of the Council were a part-time member. This
arrangement therefore remains important as all appointed Board members are now
part-time under subclause ^17(5) of the Bill.
This clause addresses the Australian Government response to the Review's
recommendation that the size of the Board be reduced to reflect best practice
arrangements for governing boards of statutory authorities.
Subclause ^16(2) of the Bill is intended to make it clear that if the number of Board
members were to fall below 8 for a period of up to 6 months (including the Chair, Deputy
Chair and CEO), this would not be a reason in itself that would affect the performance of
the Board's functions or the exercise of its powers. This subclause is intended to allow
for the continued functioning of the Board in unforeseen circumstances where
appointments to the Board may be delayed. This clause also provides that if the number
of Board members were to fall below 6 (including the Chair, Deputy Chair and the CEO),
the Board would not be able to perform its functions or exercise its powers as this is the
minimum number considered necessary for appropriate decision making processes. This
subclause is in line with the Australian Government response to the Review's
recommendation that the Council's enabling legislation be updated to reflect the enabling
legislation of other Commonwealth statutory authorities. While the CEO is an ex-officio
member of the Board as described above, the CEO is included in the number of members
provided in this clause as it is considered necessary for a CEO to be in place for the
Council to continue to operate.
Division 2 - Terms and conditions of appointed Board members
Clause ^17: Appointment of Board members
Subclause ^17(1) enables the Minister to appoint Board members by written instrument,
including the Chair and Deputy Chair. The note in this clause is intended to assist readers
by making it clear that the CEO is an ex-officio member of the Board by virtue of having
been appointed to the office of CEO, rather than having been appointed to the Board.
Any clause that refers to an "appointed Board member" therefore refers to all Board
members other than the CEO.
Subclause ^17(2) requires the Minister to consult the Chair of the Board (who has been
appointed by the Minister) before appointing other Board members, including the Deputy
Chair. This implements the Australian Government response to the Review's
recommendation that the Chair should be consulted regarding the appointment of other
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Board members. The intended effect of this measure is to ensure that the skills mix of the
Board is discussed by the Minister and Chair, in line with the requirement for a
skills-based Board included in subclause ^17(3).
Subclause ^17(3) provides for a skills-based Board to be introduced, which will provide
for a mix of arts and corporate knowledge and expertise, as recommended in the Review.
Such knowledge or expertise could include (but is not limited to) skills or experience in a
range of artforms, administration or artistic leadership of major performing arts
companies, marketing, strategic planning, corporate governance, financial, legal, or
corporate sponsorship and philanthropic expertise.
Subclause ^17(4) is intended to assist readers by making it clear that the Minister must
consider the importance of having people with skills or experience in the arts appointed
to the Board of the Council, as well as people who are involved in the arts more broadly.
This includes, for example, having arts practitioners or arts workers appointed to the
Board, that is, people with arts management or arts administration expertise.
Appointed Board members hold office on a part-time basis (subclause ^17(5)), and may
be appointed for up to three years at a time (subclause ^17(6)). However, the total period
of a member's appointments cannot exceed nine years (subclause ^17(7)). This provision
is included in line with the Australian Government response to the Review's
recommendation that the Council's enabling legislation be updated to reflect the enabling
legislation of other Commonwealth statutory authorities, including SA.
Clause ^18: Acting Board members
Subclause ^18(1) enables the Deputy Chair of the Board to act as the Chair when there is
no Chair, or when the Chair is absent from duty. The subclause does not specify that the
Deputy Chair will act as Chair when the Chair is overseas, as it is possible and preferable
for the Chair to continue to fulfil their duties whilst abroad, due to developments in
technology and increasing international engagement in the arts.
With regard to the office of Deputy Chair, subclause ^18(2) specifies that if there is no
Deputy Chair, the Deputy Chair is unavailable, or the Deputy Chair is acting as Chair, the
Minister can appoint another appointed Board member to act as the Deputy Chair by
means of written instrument. The reference to "appointed Board member" indicates that
the CEO cannot be appointed to act as the Deputy Chair.
Subclause ^18(3) provides that the Minister can appoint a person to act as a Board
member by means of written instrument when there is a vacancy in the office of a Board
member, if a member is acting as the Deputy Chair, or if a member is either absent from
duty or unable to perform their duties.
Subclause ^18(4) clarifies that subclauses ^17(3) and ^17(4) regarding the skills and
expertise required for Board members also applies to acting Board members.
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The notes in this clause refer readers to sections 33A and 33AB of the
Acts Interpretation Act 1901 for further information on the rules that apply to acting
appointments.
These clauses are intended to enable, so far as possible, the continuing and effective
functioning of the Board in the absence of the Chair or Deputy Chair.
Clause ^19: Remuneration
Clause ^19 provides that appointed Board members are to be paid remuneration as
determined by the Remuneration Tribunal, or if there is no determination of that
remuneration in operation, the member is to be paid remuneration as prescribed in the
rules made by the Minister under clause ^52. Allowances to be paid to an appointed
Board member are to be prescribed in the rules made by the Minister under clause ^52.
This clause is effective subject to the Remuneration Tribunal Act 1973.
Clause ^20: Leave
Subclause ^20(1) provides that the Minister may determine the terms and conditions on
which the Chair may be granted a leave of absence, while subclause ^20(2) provides that
the Chair is able to grant other appointed Board members a leave of absence on terms and
conditions determined by the Chair. Subclause ^20(3) provides that the Chair must notify
the Minister if the Chair grants an appointed Board member a leave of absence for a
period exceeding 6 months.
Clause ^21: Resignation
Subclause ^21(1) provides that an appointed Board member may resign from office by
providing the Minister with a written resignation. Subclause ^21(2) provides that the
resignation would take effect on the day the Minister receives it, or would alternatively
take effect on a later day if specified in the resignation.
Clause ^22: Termination
Subclause ^22(1) provides that the Minister may terminate the appointment of a Board
member for reasons of misbehaviour, or if a Board member is unable to perform the
duties of their office due to physical or mental incapacity.
Subclause ^22(2) provides that the Minister must terminate the appointment of a Board
member if the Board member were to:
become bankrupt;
apply to take the benefit of any law in order to relieve bankruptcy or insolvent
debtors;
compound with their creditors;
assign their remuneration to benefit their creditors;
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fail to comply with the obligations of section 27F and 27J of the CAC Act, that is,
without reasonable excuse, failing to comply with the duty of a director of a
Commonwealth statutory authority (defined as members of a governing body) to
disclose material personal interest, or being present at a meeting when a director
has a material personal interest in the matter being considered; or
be absent from three consecutive Board meetings, without having been granted a
leave of absence.
These provisions are modelled on similar provisions of other contemporary statutory
authorities, for example, provisions in the SA Act, and are included as per the
Australian Government response to the Review.
Clause ^23: Other terms and conditions
Unless otherwise provided for in the Bill, this provision requires that the terms and
conditions on which an appointed Board member may hold office are to be determined by
the Minister.
Division 3 - Procedures of the Board
Clause ^24: Convening of meetings
This clause provides that the Chair must convene meetings of the Board:
which they deem are necessary for the efficient conduct of the Board's affairs;
a minimum of four times a year, meaning that more than four meetings a year
may be convened;
if the Minister directs the Chair to do so; and
if a majority of appointed Board members sign a written request for a meeting and
provide it to the Chair.
The inclusion of subclause ^24(5) is intended to assist readers by making it clear that
directions or requests provided in writing under subclauses ^24(3) and ^24(4) are
administrative and not legislative in character, and are therefore not legislative
instruments within the meaning of section 5 of the Legislative Instruments Act 2003.
Clause ^25: Quorum
This clause provides that a quorum for a meeting of the Board is a majority of the current
appointed Board members. This clause also refers to section 27J of the CAC Act, which
requires that directors of a Commonwealth authority (defined as members of a governing
body) cannot be present when a matter which they have material personal interest in is
being considered, and cannot vote on the matter. Subclause ^25(2) is intended to make it
clear that if an appointed Board member is required under section 27J of the CAC Act to
leave a meeting during deliberations, or when a decision is to be made regarding a
particular matter, that the remaining appointed Board members would constitute a
quorum for the purposes of deliberation or decision regarding that particular matter.
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Clause ^26: Presiding at meetings
This clause provides:
that the Chair must preside at all meetings of the Board that they attend;
if the Chair is not present at a meeting of the Board, the Deputy Chair must
instead preside at the meeting; and
if both the Chair and Deputy Chair are not present at a meeting, the appointed
Board members must elect a member amongst themselves to preside at the
meeting.
Clause ^27: Voting at meetings
Clause ^27 provides that questions at a meeting of the Board are decided by a majority of
votes of appointed Board members that are present and voting, and that the presiding
appointed Board member at the meeting has a deliberative vote, as well as the ability to
make a casting vote if the votes are tied. The effect of this clause through the reference to
"appointed Board members" is that the CEO will have deliberative, but not voting rights
on the Board of the Council. This will address the potential for a conflict of interest to
arise when the CEO has referred a decision to the Board, particularly in relation to the
provision of financial assistance or otherwise. The CEO will be available at Board
meetings to provide information or advice, for example, on the Council's operations.
Clause ^28: Minutes
This clause requires the Board to keep minutes of its meetings.
Clause ^29: Conduct of meetings
This clause provides that, subject to the Bill and the CAC Act, the Board of the Council
is able to regulate the conduct of its meetings as it sees fit. The note in this clause also
refers readers to section 33B of the Acts Interpretation Act 1901 for further information
about how Board members may participate in meetings.
Clause ^30: Decisions without meetings
Subclause ^30(1) provides for a number of instances where the Board of the Council is
taken to have made a decision at a meeting. These are:
if a majority of the current appointed Board members entitled to vote on a
proposed decision have indicated agreement with a decision without having met;
if appointed Board members have indicated agreement to a proposed decision by
a method determined by the Board under paragraph ^30(2)(b); and
if all the current appointed Board members have been informed of the proposed
decision, or reasonable effort has been made to inform all the current appointed
Board members of the proposed decision.
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Subclause ^30(1) is subject to subclause ^30(2) of the Bill, which specifies that these
arrangements may only apply if the Board of the Council has previously determined that
it may make decisions of a particular kind without holding a meeting, and has also
determined a method by which appointed Board members can indicate their agreement
with proposed decisions.
Subclause ^30(3) clarifies that paragraph ^30(1)(a) does not apply if an appointed Board
member would not have been entitled to vote on a proposed decision if the matter had
been considered at a meeting of the Board.
Subclause ^30(4) confirms that the Board of the Council must keep a record of decisions
made in accordance with this section.
Part 4 - Committees
Clause ^31: Committees
Subclause ^31(1) provides the Board of the Council with the flexibility and discretion to
establish committees or panels that can provide it with advice or assist in the performance
of the Council's functions or the Board's responsibilities.
The inclusion of subclause ^31(1) will support the implementation of the
Australian Government's response to the Review's recommendation to remove the
obligation for the Council to establish artform boards. It is intended that the inclusion of
this measure will provide the Council with the necessary flexibility to establish
committees, including for allocating grants based on peer assessment, and will enable the
Council to maintain access to artform specific expertise, as well as strategic advice on the
arts sector more broadly. The note in this subclause is intended to clarify that the
principle of peer assessment of grant applications is provided for in this section, and that
this will be ensured through the establishment of expert committees comprised of persons
with appropriate experience, that is, arts experience or artform specific knowledge and
expertise.
Subclause ^31(2) provides that committees or panels may be comprised of Board
members or other persons, including peers, or members with arts knowledge or expertise.
Subclause ^31(3) provides for the Board of the Council to determine the terms of
reference of a committee, the terms and conditions regarding the appointment of
members of a committee, as well as the procedures a committee will follow. It is intended
that this subclause will provide the framework for communication between the Board and
its committees and it will ensure that the Board has the necessary flexibility to establish
committees or panels to provide advice or to make recommendations on a specified
matter including, for example, the consideration of applications for a particular funding
program, or the recommendation of funding recipients for a particular project or
initiative.
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Subclause ^31(4) allows for the Board of the Council to give directions to a committee
that the committee must comply with regarding the advice or assistance that the
committee is to provide to the Board.
Subclause ^31(5) is intended to assist readers by making it clear that a direction under
subclause ^31(4) is administrative and not legislative in character, and is therefore not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act
2003.
Clause ^32: Remuneration and allowances
Clause ^32 provides that members of committees established under clause ^31 are to be
paid remuneration as determined by the Remuneration Tribunal, or if there is no
determination of that remuneration in operation, the member is to be paid remuneration
as prescribed in the rules made by the Minister under clause ^52. Allowances to be paid
to a committee member are to be prescribed in the rules made by the Minister under
clause ^52. This clause is effective subject to the Remuneration Tribunal Act 1973.
Part 5 - CEO, staff and consultants
Division 1 - Chief Executive Officer
Clause ^33: Establishment
Clause ^33 confirms that there will be a CEO of the Council, which will replace the role
of General Manager provided for in the AC Act.
Clause ^34: Role
Subclause ^34(1) confirms that the role of CEO is to be responsible for the day-to-day
administration of the Council, meaning this is a full-time position.
The note in this subclause is intended to make it clear that the CEO is also an ex-officio
member of the Board, and as such is a member of the Board only by virtue of being
appointed to the office of CEO, and has deliberative, but not voting rights on the Board.
Subclause ^34(2) provides the CEO with the power to do all that may be necessary or
convenient in performing, or in relation to performing, their duties in the context of their
role as CEO.
Subclause ^34(3) confirms that the CEO is to act in a way consistent with the policies
and any directions given by the Board of the Council.
Subclause ^34(4) provides that activities undertaken by the CEO in the name of, or on
behalf of the Council, are taken to have been done by the Council, and also provides the
CEO with the capacity to authorise other Council staff to undertake activities in the name
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of, or on behalf of, the Council. This capacity is similar to the Board's capacity to
authorise others to undertake activities in the name of, or on behalf of the Council under
subclause ^15(3).
Subclause ^34(5) allows for all things done in the name of, or on behalf of, the Council
by the CEO, or with the authority of the CEO, under subclause ^34(4), to be done on the
basis of the subjective opinion, belief or state of mind of the person or body doing them.
Subclause ^34(6) is intended to assist readers by making it clear that any policy or
direction given under subclause ^34(3) is administrative, not legislative in character, and
therefore not a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Clause ^35: Appointment
Subclause ^35(1) provides that the Board will appoint the CEO in consultation with the
Minister, which reflects the arrangements of other similar Commonwealth statutory
authorities, such as SA.
Subclause ^35(2) specifies that any appointment will be made by written instrument.
The CEO will hold office on a full-time basis (subclause ^35(3)), for a period specified in
the instrument of appointment, which cannot exceed five years (subclause ^35(4)).
The note in this clause refers readers to section 33AA of the Acts Interpretation Act 1901,
which provides that a person or body empowered with the ability to make an
appointment, is also empowered with the ability to make a re-appointment.
Clause ^36: Acting CEO
Clause ^36 provides that the Board is able to appoint a person to act as the CEO,
following consultation with the Minister, when there is a vacancy in the office of the
CEO, when the CEO is absent from duty, or the CEO is unable to perform the duties of
the office. The note in this clause refers readers to sections 33AB and 33A of the
Acts Interpretation Act 1901 for further information on the rules that apply to acting
appointments.
Clause ^37: Other employment
Clause ^37 provides that the CEO must receive approval from the Chair if they are to
engage in paid employment outside the duties of the CEO's office. This is in recognition
of the full-time nature of the CEO's role as well as the potential for conflicts of interest to
arise and the need to manage any such conflict.
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Clause ^38: Remuneration
Clause ^38 provides that the CEO is to be paid remuneration as determined by the
Remuneration Tribunal, or if there is no determination of that remuneration in operation,
the member is to be paid remuneration as prescribed in the rules made by the Minister
under clause ^52. Allowances to be paid to the CEO are to be prescribed in the rules
made by the Minister under clause ^52. This clause is effective subject to the
Remuneration Tribunal Act 1973.
Clause ^39: Leave
Clause ^39 provides that recreation leave for the CEO will be determined by the
Remuneration Tribunal, and a leave of absence may be granted by the Chair, on the terms
and conditions regarding remuneration or otherwise as determined by the Chair. The
Chair must notify the Minister if they grant the CEO more than one month's leave.
Clause ^40: Resignation
Subclause ^40(1) provides that the CEO may resign from that position by providing the
Chair with a written resignation. Subclause ^40(2) provides that the CEO's resignation
will take effect on the day the Chair receives it, or alternatively, on a later day if a later
day is specified in the resignation. Subclause ^40(3) requires the Chair to notify the
Minister of the CEO's resignation.
Clause ^41: Termination
This clause provides the Board with the discretion to terminate the appointment of the
CEO for reasons of:
misbehaviour;
being unable to perform the duties of the office of CEO due to physical or mental
incapacity;
the Board being satisfied that the CEO's performance of their duties has been
unsatisfactory for a significant period of time;
bankruptcy;
applying to take the benefit of any law in order to relieve bankruptcy or insolvent
debtors;
compounding with their creditors;
assigning their remuneration to benefit their creditors;
being absent for 14 consecutive days, or for 28 days in any 12 months, for reasons
other than being on leave of absence;
failure to comply with the obligations of section 27F and 27J of the CAC Act, that
is, without reasonable excuse, failing to comply with the duty of a director of a
Commonwealth statutory authority (defined as members of a governing body) to
disclose material personal interest, or being present at a meeting when a director
has a material personal interest in the matter being considered;
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engaging in paid employment outside the duties of their office without the
approval of the Chair.
These provisions are included in line with the Australian Government response to the
Review's recommendation that the Council's enabling legislation should be updated to
model and reflect the enabling legislation of other Commonwealth statutory authorities
relating to the termination of the appointment of the CEO.
Subclause ^41(1) provides that the Board may terminate the CEO for the above reasons.
This is different from the position in respect of Board members set out in subclause
^22(2) which provides that the Minister must terminate the appointment of an appointed
Board member for the reasons listed under that subclause. There is a difference in the
wording of the two subclauses as the Minister is responsible for appointing Board
members, whereas the Board is responsible for appointing the CEO. The Board should
therefore be provided with the ability to make its own decisions regarding the
appointment of the CEO, as well as the recruitment and potential termination of the CEO
where relevant.
Consistently with provisions in the enabling legislation of other Commonwealth statutory
authorities and in line with the Australian Government response to the Review's
recommendation that the Council's enabling legislation be updated to reflect those other
statutory authorities, subclause ^41(2) has been included. This provision requires the
Board to notify the Minister if the Board terminates the appointment of the CEO, similar
to an equivalent provision in the SA Act.
Clause ^42: Other terms and conditions
Unless provided for in the Bill elsewhere, this clause provides that the terms and
conditions on which the CEO may hold office are to be determined by the Board of the
Council, as it is the Board that is responsible for appointing the CEO, in consultation with
the Minister.
Division 2 - Staff and consultants
Clause ^43: Staff
Clause ^43 enables the Council to employ staff necessary to perform the functions and
exercise the powers of the Council, under terms and conditions that the Council
determines and provides in writing.
Clause ^44: Consultants
Clause ^44 enables the Council to engage contractors, such as consultants, to assist in the
performance of its functions. This is intended to avoid doubt and is not intended to affect
the operation of clause ^10 (Powers), for example, the power to enter into contracts.
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Part 6 - Planning
Clause ^45: Corporate plan
This clause requires the Council to prepare a corporate plan each year, as per the
Australian Government response to the Review, updating the Council's strategic planning
obligations in line with the enabling legislation of other Commonwealth statutory
authorities.
The Board must prepare a corporate plan for the Council at least once a year (subclause
^45(1)), which will cover a period of at least 3 years (subclause ^45(2)).
Subclause ^45(3) provides that the corporate plan must include details of:
the objectives that the Council will pursue, for example, objectives for the
Council to successfully and effectively perform its functions;
the strategies and policies that the Council will adopt to achieve its objectives;
performance indicators that will allow for the assessment of the Council's
performance of its functions;
the investment and financing programs of the Council, including strategies for
managing financial risk;
the financial targets and projections for the Council;
an analysis of factors likely to affect achievement of targets or create significant
financial risk for the Council or for the Commonwealth;
a review of performance since the start of the year previous to the year when the
plan has been prepared, measured against the most recent plan created during that
period; and
other matters as directed by the Minister, if applicable.
The plan may include other matters as determined by the Minister or by the Council.
Subclause ^45(4) is intended to assist readers by making it clear that if a direction is
provided by the Minister in writing under paragraph ^45(3)(h), the direction is
administrative, not legislative in character, and is therefore not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
Subclause ^45(5) provides for variation of the corporate plan by the Board of the
Council.
Subclause ^45(6) requires the Minister to endorse the corporate plan, as well as any
variation of the plan. It is intended that the Minister's endorsement, or agreement of the
corporate plan, will be provided in writing to the Board. The corporate plan will not take
effect unless it has been endorsed by the Minister. This provides the Minister with an
opportunity to discuss with the Board the contents of the corporate plan, including the
strategic direction of the Council that the plan underpins.
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The inclusion of subclause ^45(7) is intended to assist readers by making it clear that if
the Minister's endorsement of the corporate plan under subclause ^45(6) is in writing,
this endorsement is administrative, not legislative in character, and the endorsement is
therefore not a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
The Minister may also provide a Ministerial direction relating to the corporate plan under
section ^12.
Part 7 - Finance
Clause ^46: Money payable to the Council
Subclause ^46(1) makes it clear that money appropriated by the Parliament from the
Consolidated Revenue Fund for the purposes of the Council is payable to the Council.
Subclause ^46(2) enables the Finance Minister, or the Minister administering the FMA
Act, to give directions about the amount and timing of payments made to the Council
under this clause. Subclause ^46(3) is intended to assist readers by making it clear that if
a direction provided by the Finance Minister under subclause ^46(2) is in writing, this
would be administrative, not legislative in character, and therefore not a legislative
instrument within the meaning of section 5 of the Legislative Instruments Act 2003.
Clause ^47: Application of money by the Council
Subclause ^47 provides that the money of the Council, including all money that is
appropriated to the Council under clause ^46 and other money, is to be applied only in
payment or discharge of the direct or indirect costs, expenses and other obligations
incurred or undertaken by the Council in the performance of its functions and the exercise
of its powers, and in payment of any remuneration or allowances payable under this Bill.
The note in this subclause indicates that subclause ^47(1) is subject to subclause ^10(3)
of the Bill regarding property held on trust by the Council, or accepted by the Council
subject to a condition.
Subclause ^47(2) is intended to assist readers by making it clear that subclause ^47(1)
does not prevent investment of surplus money of the Council under section 18 of the
CAC Act. Surplus money is defined as money of the authority that is not immediately
required for the purposes of the authority, for example, investment of surplus money on
deposit with a bank, investment in securities of the Commonwealth or of a State or
Territory, investment in securities guaranteed by the Commonwealth or of a State or
Territory, or in any other manner approved by the Finance Minister.
Clause ^48: Restrictions on financial transactions
Subclause ^48(1) provides that the Council must not, without the written approval of the
Minister:
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acquire any property, right or privilege for a consideration exceeding in amount or
value the amount prescribed in the rules made by the Minister under clause ^52
for the purposes of this paragraph;
dispose of any property, right or privilege if the amount or value of the
consideration for the disposal, or the value of the property, right or privilege,
exceeds the amount prescribed in the rules made by the Minister under clause ^52
for the purposes of this paragraph;
enter into a contract for the construction of a building for the Council, being a
contract under which the Council is to pay an amount exceeding the amount
prescribed in the rules made by the Minister under clause ^52 for the purposes of
this paragraph; or
enter into a lease of land for a period exceeding 10 years.
These provisions are modelled on provisions of the enabling legislation of other
Commonwealth statutory authorities in line with the Australian Government response to
the Review's recommendation that the Council's enabling legislation be updated in this
manner.
Subclause ^48(2) clarifies that paragraphs ^48(1)(a) and ^48(1)(b) do not apply to
transactions in the course of the exercise of the Council's powers under paragraphs
^10(2)(g) or ^10(2)(h), that is, the provision of financial assistance or guarantees in the
performance of the Council's functions (paragraph ^48(2)(a)), as well as investment of
surplus moneys under section 18 of the CAC Act (paragraph ^48(2)(b)). This subclause is
intended to maintain the principle of arms-length decision making by the Council, for
example, in the provision of financial assistance to artists and arts organisations.
The Council must not borrow money from any person (subclause ^48(3)), subject to the
Council's ability to obtain goods or services on credit in accordance with section 28A of
the CAC Act relating to credit cards and credit vouchers (subclause ^48(4)).
Subclause ^48(5) is intended to assist readers by making it clear that a written approval
under subclause ^48(1) is administrative, not legislative in character, and therefore not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act
2003.
Clause ^49: Investment
This clause refers to the Council's power to invest money in the course of the direct
performance of its functions under paragraph ^10(2)(g). The note in this clause is
intended to make it clear that the Council's ability to invest under paragraph ^10(2)(g) is
only as a means of providing financial assistance. The Council does not have a general
power to make investments.
In order to assist readers, this clause also clarifies that the Council may invest surplus
money under section 18 of the CAC Act, as noted under clause ^47. This clause is
intended to maintain the Council's ability to invest, in line with section 36A of the
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AC Act, for example, to support Australian arts practice that is recognised for excellence
through investment where appropriate.
Clause ^50: Taxation
In line with the AC Act and the arrangements of other Commonwealth statutory
authorities, the Council is not subject to taxation under any law of the Commonwealth or
of a State or Territory. As the note in this clause indicates, the Council may be subject to
taxation under certain laws, such as A New Tax System (Goods and Service Tax) Act 1999
or the Fringe Benefits Tax Assessment Act 1986.
Part 8 - Other matters
Clause ^51: Extra reporting requirements
Under section 9 of the CAC Act, the Council must prepare an annual report for each
financial year to be tabled in Parliament by the Minister.
Subclause ^51(1) requires that the text of any Ministerial directions made or given during
the year to which the annual report relates be included in the annual report, and refers to
the subclauses in the Bill that the Minister may give directions under. These are:
subclause ^12(1);
subclause ^24(3); and
paragraph ^45(3)(h).
Under this subclause, the Council's annual report must also include details of any
guarantees given by the Council during the year to which the report relates, as this assists
in indicating the level of financial risk that the Council may be subject to through the
provision of guarantees.
Subclause ^51(2) requires the Minister to table any report or financial statements that the
Board of the Council provides the Minister under paragraph 16(1)(b) of the CAC Act in
Parliament as soon as practicable.
Clause ^52: Rules
This clause enables the Minister to make rules by legislative instrument prescribing
matters required or permitted by the Bill to be prescribed, or matters necessary or
convenient to be prescribed for carrying out or giving effect to the Bill. For example, as
noted under clause ^48 on restrictions on financial transactions, the rules will determine
the amount above which the Minister will be required to approve financial transactions
undertaken by the Council. Rules under this clause are legislative instruments that are to
be tabled in Parliament.
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