Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIA COUNCIL BILL 2013
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Sustainability, Environment, Water, Population and
Communities, Minister for the Arts, the Honourable Tony Burke MP)
AUSTRALIA COUNCIL BILL 2013
OUTLINE
The purpose of the amendments is to provide clarity around the functions of the Australia
Council (the Council) through the explicit reference to support for Aboriginal and Torres Strait
Islander arts practice and Australian arts practice that reflects the diversity of Australia, as well
as the upholding and promotion of freedom of expression in the arts, and the promotion of
community participation in the arts. The amendments also include a requirement regarding the
membership of committees convened for the purposes of providing advice or making
recommendations to the Board of the Council about policy or the provision of financial
assistance in relation to the arts.
The amendments take into account views expressed in submissions and evidence provided
during the Senate Rural and Regional Affairs and Transport Legislation Committee (the Senate
Committee) inquiry into the Australia Council Bill 2013 and Australia Council (Consequential
and Transitional Provisions) Bill 2013, and the Senate Committee's subsequent report on the
Bills. The Australian Government's response to the Senate Committee's report is delivered
through these amendments.
FINANCIAL IMPACT STATEMENT
The amendments have no financial impact.
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ABBREVIATIONS
In these notes on amendments, the following abbreviations are used:
AC Act Australia Council Act 1975
Bill Australia Council Bill 2013
Council Australia Council
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
Senate Committee Senate Rural and Regional Affairs and Transport Legislation Committee
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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
The amendments are compatible 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.
Overview
The amendments include four new Council functions under clause 9 of the Bill, introducing
concepts of:
supporting Aboriginal and Torres Strait Islander arts practice;
supporting Australian arts practice that reflects the diversity of Australia;
upholding and promoting freedom of expression in the arts; and
promoting community participation in the arts.
An obligation regarding the membership of committees convened for the purposes of providing
advice or making recommendations to the Board of the Council has also been included in the
Bill. In the case of committees convened to provide advice to the Board of the Council about
policy or the provision of financial assistance in relation to the arts, the Board must appoint at
least one member with relevant experience in the arts.
Human rights implications
The amendments engage the following human rights:
Right to freedom of expression
The amendments reflect the right to freedom of expression in the form of art through the
inclusion of a function for the Council under paragraph 9(1)(bc): "to uphold and promote
freedom of expression in the arts". Article 19(2) of the International Covenant on Civil and
Political Rights (ICCPR) recognises the right to freedom of expression through any medium,
including in the form of art.
The inclusion of this function refers to the Council's role in advocating for freedom of
expression in the arts for the arts sector and within the community more broadly. For example,
this could take the form of promoting understanding about freedom of expression in the arts, or
supporting Australian arts practice that exemplifies freedom of expression in the arts.
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Right to enjoy and benefit from culture
The amendments engage the right to enjoy and benefit from culture, including the right to take
part in cultural life, through the inclusion of a function for the Council under paragraph 9(1)(bd):
"to promote community participation in the arts".
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.
The function included under paragraph 9(1)(bd) refers to the Council's role in providing
opportunities for persons in the community to engage in cultural life, (for example, in being
involved in artistic activities), as well as promoting the importance of community participation in
the arts, (for example, conveying the benefits of being involved in the arts).
Conclusion
The amendments are compatible with human rights and freedoms because they advance 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 insertion of functions for the Council to
uphold and promote of freedom of expression in the arts, and to promote community
participation in the arts.
The Honourable Tony Burke MP
Minister for Sustainability, Environment, Water, Population and Communities,
Minister for the Arts
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AUSTRALIA COUNCIL BILL 2013
NOTES ON AMENDMENTS
Amendment (1)
This amendment inserts a definition of Aboriginal and Torres Strait Islander arts practice under
clause 4 of the Bill. This definition has been included as a result of the insertion of a new
function of the Council relating to Aboriginal and Torres Strait Islander arts practice under
Amendment (2) below. This definition reflects the concept of Australian arts practice outlined in
the Bill while referring to Aboriginal persons or Torres Strait Islanders in creating or performing
arts.
Amendment (2)
This amendment inserts four new Council functions under clause 9 of the Bill after paragraph
9(1)(b), introducing concepts of supporting Aboriginal and Torres Strait Islander arts practice
(paragraph 9(1)(ba)), supporting Australian arts practice that reflects the diversity of Australia
(paragraph 9(1)(bb)), upholding and promoting freedom of expression in the arts (paragraph
9(1)(bc)), and promoting community participation in the arts (paragraph 9(1)(bd)). These new
functions implement Recommendation 1 of the Senate Committee's report on the Bill.
The inclusion of a new function for the Council to support Aboriginal and Torres Strait Islander
arts practice under paragraph 9(1)(ba) is intended to make it clear that the Council will support
Aboriginal and Torres Strait Islander arts. This is related to Goal One of the National Cultural
Policy, Creative Australia: "Recognise, respect and celebrate the centrality of Aboriginal and
Torres Strait Islander cultures to the uniqueness of Australian identity." In providing
submissions and evidence to the Senate Committee inquiry into the Bill, a number of arts sector
stakeholders highlighted the need to reflect Goal One of Creative Australia as a function of the
Council, and this was supported by the Senate Committee in Recommendation 1 of its report on
the Bill.
The new function relating to supporting Australian arts practice that reflects the diversity of
Australia under paragraph 9(1)(bb) follows on from the new Council function at paragraph
9(1)(ba), and is intended to make it clear that in supporting Australian arts practice, for example,
under the function at paragraph 9(1)(a), the Council will do so by supporting activities that
reflect the diversity of Australia. This is related to Goal Two of Creative Australia: "Ensure that
government support reflects the diversity of Australia and that all citizens, wherever they live,
whatever their background or circumstances, have a right to shape our cultural identity and its
expression." The inclusion of this function also reflects views expressed by arts sector
stakeholders during the Senate Committee inquiry into the Bill that this principle should be
included in the functions of the Council, which was supported in Recommendation 1 of the
Senate Committee's report on the Bill.
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The function inserted at paragraph 9(1)(bc) of the Bill maintains the intent of the function at
paragraph 5(a)(vi) of the Australia Council Act 1975 (the AC Act) and updates the concept to
reflect the right to freedom of expression in the form of art under Article 19(2) of the ICCPR, to
which Australia is a signatory. The Bill originally maintained the intent of the function at
paragraph 5(a)(vi) of the AC Act under subclause 11(b) as a matter that the Council must have
regard to in the performance of its functions and the exercise of its powers. Following views
expressed by arts sector stakeholders, and in line with Recommendation 1 of the Senate
Committee's report, this function has been returned to the functions of the Council. This
function refers to the Council's role in advocating for freedom of expression in the arts for the
arts sector and within the community more broadly.
Under paragraph 9(1)(bd) of the Bill, a new function has been included for the avoidance of
doubt that the Council will promote community participation in the arts. The Council will be
able to support activities that involve community participation in the arts under a number of
functions of the Bill, for example, the functions at paragraphs 9(1)(a), (b) and (d). That is, in
providing support for, or fostering excellence in Australian arts practice, as well as promoting the
appreciation, knowledge and understanding of the arts, the Council is able to support activities
involving the community. The inclusion of the function at paragraph 9(1)(bd) is intended to
expand on these functions and to make it clear that the Council will promote community
participation in the arts as part of its functions. This function reflects the views expressed by arts
sector stakeholders during the Senate Committee inquiry into the Bill, and Recommendation 1 of
the Senate Committee's report.
Amendment (3)
This amendment removes subclause 11(b) of the Bill, as the Council will instead be required to
uphold and promote freedom of expression in the arts under the function inserted at paragraph
9(1)(bc), as noted above.
Amendment (4)
This amendment removes the note included under subclause 31(1) of the Bill, as this note will be
replaced by the clause inserted by Amendment (5) below.
Amendment (5)
This amendment inserts a clause that is intended to make it clear that committees convened for
the purposes of providing advice or making recommendations to the Board of the Council about
policy or the provision of financial assistance or guarantees in relation to the arts will be required
to include at least one member with relevant experience in the arts. For example, in the case of a
committee formed by the Board of the Council to provide arts sector advice or to make decisions
regarding grant applications in relation to a particular art form or artistic program, the Board
would be required to appoint at least one member to that committee with experience relevant to
that art form or artistic program. This clause has been included in response to Recommendation
2 of the Senate Committee's report.
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