Commonwealth Numbered Regulations - Explanatory Statements

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NATIONAL PORTRAIT GALLERY OF AUSTRALIA REGULATION 2013 (SLI NO 99 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 99

Issued by the authority of the Minister for the Arts, the Honourable Tony Burke MP

National Portrait Gallery of Australia Act 2012

National Portrait Gallery of Australia Regulation 2013

The National Portrait Gallery of Australia Act 2012 (NPGA Act) establishes the National Portrait Gallery of Australia (the Portrait Gallery) as a body corporate and a Commonwealth statutory authority from 1 July 2013. The Portrait Gallery is Australia's primary agency responsible for the collection, preservation and provision of access to Australia's national portrait collection.

Subsection 54(1) of the NPGA Act enables the Governor-General to make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to that Act.

Subsection 47(1) of the NPGA Act provides that regulations will prescribe an amount over which the Portrait Gallery must not, without the written approval of the Minister, acquire any property, right or privilege; dispose of dispose of any property, right or privilege; or, enter into a contract for the construction of a building.

Subsection 51(1) of the NPGA Act enables regulations to be made relating to the sale, supply, disposal, possession or control of liquor on the Gallery's premises.

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

Subsection 54(2) of the NPGA Act provides that regulations may prescribe penalties, not exceeding 50 penalty units, for offences under the regulations.

The purpose of this Regulation is to:

1.      set $1 million as the prescribed limit above which the NPGA will require the approval of the Minister to undertake financial transactions;

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

3.      provide for the appointment of persons as authorised officers to carry out security functions for the Portrait Gallery; and

4.      provide for the creation of offences related to the protection of the collection, the control of the land and building and the supply of liquor on the premises.

Details of the Regulation are set out in the Attachment.

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

The Regulation will commence on 1 July 2013.

Consultation

Extensive consultation was undertaken during the drafting of the National Portrait Gallery of Australia Act 2012. Subsequent consultation was also undertaken with the Portrait Gallery and central agencies in regard to the National Portrait Gallery of Australia Regulation 2013.

Statement of Compatibility with Human Rights

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

The Portrait Gallery is a place where Australians can celebrate and protect important aspects of our national cultural heritage. As outlined under Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights, it is an important role for Governments to recognise the right to take part in cultural life and the Portrait Gallery has promoted participation in cultural life for over a decade.

The National Portrait Gallery of Australia Regulation 2013, made in accordance with the National Portrait Gallery of Australia Act 2012, is 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.

The primary purpose of the Regulation is to provide appropriate administrative controls for the functioning of a national collecting institution. As the Portrait Gallery has operated as a public gallery for over a decade, the governance changes will not affect the public activities undertaken by this already significant institution. The Regulation is compatible with human rights as it does not raise any human rights issues but rather engages and promotes the applicable rights in the participation in cultural life.

ATTACHMENT

DETAILS OF THE NATIONAL PORTRAIT GALLERY OF AUSTRALIA REGULATION 2013

Part 1 - Preliminary

Section 1: Name of Regulation

1.                  This section provides that the name of the Regulation is the National Portrait Gallery of Australia Regulation 2013.

Section 2: Commencement

2.                  This section provides that the Regulation will commence on 1 July 2013. This is the day that the National Portrait Gallery of Australia Act 2012 (the Act) also commences.

Section 3: Authority

3.                  This section establishes that this regulation is made under the authority provided by the Act.

Section 4: Definitions

4.                  Section 4 sets out definitions of key terms used in the Regulations. The most significant of these are:

*           Gallery material, which is defined as material that forms part of the national collection, material that is owned or under control of the Gallery or any structure, equipment or material that it kept by the Gallery for exhibition or display, research, education or publicity activities; and

*           prescribed article, which is defined as an implement, other than a pen or pencil, that could be used to damage or conceal Gallery material or a bag, case, parcel, container or article specified in a Director's notice.

Part 2 - Financial transactions

Section 5: Restrictions on financial transactions

5.                  Section 5 sets the prescribed amount for paragraphs 47(1)(a), (b) and (c) of the Act as $1 million. This amount reflects the current prescribed amount set for similar national collecting institutions, such as the National Gallery of Australia and the National Museum of Australia. Subsection 47(2) of the Act makes it clear that the prescribed limit will not apply to the investment of money under section 18 of the Commonwealth Authorities and Companies Act 1997.

Part 3 - Supply of liquor

Section 6: Authority to supply liquor

6.                  Subsection 51(1) of the Act enables regulations to be made relating to the sale, supply, disposal, possession or control of liquor on the Gallery's premises. Regulation 6 enables the Director to authorise and place conditions on the sale, supply, disposal, possession or control of liquor on the Gallery's premises.

Part 4 - Authorised officers

Section 7: Appointment of authorised officer

7.                  Section 7 enables the Director to appoint authorised officers to carry out security functions including the regulation of entry, conduct and removal of persons on Gallery land and Gallery buildings. Subsection 7(2) provides that a certificate must be issued to an authorised officer and that the certificate must include a photograph of the officer. Subsection 7(3) provides that the officer exercising any power under the regulation must be able to produce that certificate. Subsection 7(4) provides that a person who ceases to be an authorised officer must return their certificate to the Director as soon as practicable.

Section 8: Powers of authorised officer - direction to leave

7.                  Section 8 sets out the powers of an authorised officer to direct a person, or group of persons, to leave Gallery land or buildings if the safety of the public or staff is endangered, if the conduct of the person or group is likely to cause offence or if the person intends to commit is committing or has committed an offence again this regulation.

Section 9: Powers of authorised officer - apprehension

8.                  Subsections 9(1) and 9(2) enable an authorised officer to apprehend a person when there is reasonable grounds for believing that the person intends to interfere with, is interfering with, or has interfered with Gallery material. Subsection 9(3) allows the authorised office to either remove the person from Gallery land or a Gallery building or hold the person in custody until the person can be taken into the custody of a member of a police force.

Section 10: Powers of authorised officer - vehicles and similar devices

9.                  This section enables authorised officers to control the parking of vehicles, motor cycles, bicycles or similar devices for transportation on Gallery land.

Section 11:  Powers of authorised officer - possible prescribed articles

10.              This section enables an authorised officer to direct a person who is carrying an article that appears to be a prescribed article to submit the article for inspection and to leave the article in a designated area.

Part 5 - Director notices about entry onto Gallery land or into a Gallery building

Section 12: Notices

11.              Part 5 enables the Director to issue a notice that specifies a prohibition, condition or restriction relating to the Gallery land, a Gallery building or Gallery material. In accordance with other similar collecting institutions and international standards of art museum management the control of persons at the Gallery will be necessary on such issues as the use of cameras and equipment, the safety of the national collection, the conduct of the public and the control of food, liquid and animals in the building. This section enables the Gallery flexible control over its land, buildings, collection and exhibitions to accommodate changing standards of art museum management, appropriate function and event management and technological advances.

12.              Subsection 12(2) states that the notice must be clearly displayed in a way that gives adequate notice to the public and must be displayed at the entrance to the area of the Gallery building or Gallery land to which it relates.

Part 6 - Offences

13.              Part 6 creates offences in relation to the Regulation with the main objective of protecting the significant cultural material in the care of the Portrait Gallery and to provide for the appropriate control of the sale and supply of liquor on Gallery land. The inclusion of offences in the Regulation is consistent with other national collecting institutions, such as the National Museum of Australia Regulations 2000 and National Gallery Regulations 1982. The creation of offences by regulation ensures that the national collecting institutions can appropriately and expeditiously adapt to protect the valuable cultural material in their care and discourage intentional or repetitive non-compliance with conditions of entry.

14.              The penalty for all offences has been established as a maximum of 10 penalty units (which would currently amount to $1,700). Following consultation with the Criminal Justice Division of Attorney-General's Department ten penalty units was determined as appropriate for the nature of the offences created by this Regulation. Subsection 54(2) of the Act provides that regulations may prescribe penalties, not exceeding 50 penalty units.

Section 13: Director's notices

15.              Section 13 establishes that a person commits an offence if they do not comply with a Director's notice applying to them on Gallery land or in a Gallery building.

Section 14: Directions by authorised officers

16.              Section 14 establishes that a person commits and offence if they do not comply with a direction given by an authorised officer, on a matter which the authorised officer may give a direction, on Gallery land or in a Gallery building.

Section 15: Sale or supply of liquor

17.              Subsection 15(1) establishes that it is an offence to sell or supply liquor on Gallery land, or in a Gallery building, if not an authorised liquor supplier under Regulation 6 or a person to whom the liquor was sold or supplied by an authorised liquor supplier.

18.              Subsection 15(2) establishes that a person commits an offence if they are an authorised liquor supplier and they do not comply with a condition to which the person's authority is subject. Subsection 15(3) creates an offence if an authorised liquor supplier sells or supplies liquor that is adulterated. Subsection 15(4) establishes that it is an offence for an authorised liquor supplier to sell or supply liquor to a person who it is reasonable to believe is intoxicated. Subsection 15(5) creates an offence for an authorised liquor supplier to sell or supply liquor to a person who it is reasonable to believe is under 18.

Section 16: Buying or obtaining liquor

19.              Subsection 16(1) establishes that it is an offence for a person who is under 18 to buy or obtain liquor on Gallery land or a Gallery building and subsection 16(2) creates an offence for a person to send another person, who is under 18, to buy or obtain liquor on their behalf.

Section 17: Interference with Gallery material

20.              This section establishes that it is an offence for a person to touch, interfere with or engage in conduct that damages Gallery material while on Gallery land or in a Gallery building.

Section 18: Defacing property

21.              Section 18 creates an offence for attaching an article, writing on or engaging in conduct that destroys or defaces a Gallery building, fixture, fitting, wall or fence.

Section 19: Show, sale or hire of unauthorised articles

22.              This section establishes that it is an offence to engage in conduct that exposes or causes to be exposed for show, sale or hire articles for use or consumption by the public on Gallery land or in a Gallery building.

Section 20: Animals

23.              Subsection 20(1) establishes that it is an offence for a person to allow an animal, under their charge, to enter or remain in a Gallery building if that animal is not a guide dog or assistance animal. Subsection 20(2) creates an offence if that assistance animal is not reasonably restrained.

Section 21: Food and liquids

24.              Section 21 establishes an offence if a person consumes food or liquid (other than medication) in an area that is not set aside by the Director for that purpose.

Section 22: Smoking

25.              Section 22 creates an offence for smoking in an area where it is not permitted on Gallery land or in a Gallery building.

Section 23: Publishing, copying, selling, etc. of Gallery material

26.              Section 23 establishes an offence for a person to make, use, print, publish, sell or offer for sale a replica, photograph, representation or copy of any Gallery material.

Section 24: Defences

27.              Subsection 24(1) provides that a person charged with an offence under Part 6 has a defence to prosecution for that offence if the Director (or a person authorised by the Director) has consented, in writing, to person engaging in the conduct that would (but for this provision) otherwise be an offence. This section allows for specific activities to be authorised by the Director for such things as particular events or programs.

28.              Subsection 24(2) provides that that a person charged with an offence under Part 6 has a defence to a prosecution if the person is the Director, a staff member, a member of the Board or a consultant and that person is acting in accordance with their duties.

Part 7 - Miscellaneous

Section 25: Delegations by Director

29.              Subsection 25(1) enables the Director to delegate his or her powers under this regulation to staff members, with the exception of the power to delegate.

30.              Subsection 25(2) establishes that notwithstanding the Director's power to delegate his or her powers under this regulation as set out in subsection 25(1), the Director must act in accordance with any policies or directions of the Board in regard to delegations when exercising that power to delegate.

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