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Screen Australia Bill 2008

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2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

SCREEN AUSTRALIA BILL 2008

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for the Environment, Heritage and the Arts,

 the Hon. Peter Garrett AM MP)



 SCREEN AUSTRALIA BILL 2008

 

 

 

OUTLINE

 

The Screen Australia Bill (‘the Bill’) provides for the establishment of Screen Australia (‘SA’).  SA would replace the Australian Film Commission (‘AFC’) (with the exception of the National Film and Sound Archive (NFSA) function and certain functions which are to be transferred to the Australian Film, Television and Radio School (AFTRS)), the Film Finance Corporation Australia Limited (‘FFC’) and Film Australia Limited (‘FAL’). SA would also carry out additional functions in relation to the support and promotion of Australian film and the provision of tax incentives to film producers under the Income Tax Assessment Act 1997 .

 

The Bill establishes SA as a body corporate with a Board consisting of a Chair, a Deputy Chair and between three and seven other members.  SA’s staff will comprise a CEO (who is not to be a member of the Board), persons engaged under the Public Service Act 1999 and persons engaged under this Bill when enacted.

 

SA will be subject to the Commonwealth Authorities and Companies Act 1997 (the CAC Act).

 

 

 

 

FINANCIAL IMPACT STATEMENT

 

The Screen Australia Bill 2008 is not expected to have a significant impact on Commonwealth expenditure.



ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum:

 

AFC                            Australian Film Commission

 

AFC Act                     Australian Film Commission Act 1975

 

AFTRS                        Australian Film, Television and Radio School

 

Bill                              Screen Australia Bill 2008

 

CAC Act                     Commonwealth Authorities and Companies Act 1997

 

CEO                            Chief Executive Officer

 

FAL                            Film Australia Limited

 

FFC                             Film Finance Corporation Australia Limited

 

Minister                       Minister for the Environment, Heritage and the Arts

 

NFSA                          National Film and Sound Archive

 

SA                               Screen Australia

 

 



NOTES ON CLAUSES

 

Part 1 - Introduction

 

Clause 1 - Short title

 

The Bill, when enacted, should be cited as the Screen Australia Act 2008 .

 

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 is to commence on Royal Assent. 

 

Item 2 of the table provides that clauses 3 to 45 are to commence on a date to be fixed by Proclamation or on the day after six months has elapsed since Royal Assent, whichever is the sooner.

 

Delayed commencement of the Bill will enable transitional issues to be finalised prior to the establishment of SA. 

 

Clause 3 - Definitions

 

Clause 3 sets out definitions of key terms used in the Bill.  Some of the more significant definitions are:

 

·          “Australian Program” , which includes programs which, in the opinion of SA, have or will have a significant Australian content.  Significant Australian content could be determined by:

o    the subject matter of the film;

o    the place where the film is made;

o    the nationalities and places of residence of the persons who took part in the making of the film (including producers, directors, authors, scriptwriters, composers, actors, editors, directors of photography, production designers and other film technicians);

o    the details of production expenditure incurred in respect of the film; and

o    other matters that Screen Australia considers relevant.

 

The expression ‘will have a significant Australian content’ extends the definition to programs which have not been completed, including incomplete programs which do not yet have significant Australian content but which SA believes will in future have significant Australian content.  SA is an authority of the Commonwealth for the purposes of paragraph (b) of this definition.

 

·          “Program”, which is intended to have a broad meaning.  The main focus of SA’s activities in relation to programs is expected to be screen productions in the form of audiovisual films for cinema release, television productions and other platforms including the internet and other digital media. The definition in paragraph (b) could include, for example, a soundtrack for a silent movie or the production of new sounds for an old film. It is not intended to encompass sound recordings which have no connection to screen productions as outlined above.

 

The definition also extends to programs broadcast, streamed or otherwise distributed without first being stored in a permanent form, including live television broadcasts and live Internet streaming. It is not intended to encompass direct support for live productions (for instance theatre or music performances) purely because they are being filmed, although support more directly relating to the transmission, broadcast or reception of such productions could be provided. The word ‘distribution’ in paragraph (c) is intended to take on a broad meaning and includes dissemination of films and other programs for public release.

 

·          “Screen production”, which is intended to have a broad meaning and encompass all programs capable of being displayed on a screen.

 

Clause 4 - Extended geographic application of this Act

 

The Bill will extend to every external territory.  The Bill would also apply outside Australia in order to allow SA to engage in activities overseas.  For example, in performing its function of engaging in the promotion of Australian programs (subparagraph 6(1)(b)(i)) SA may use facilities at an overseas film festival to promote Australian films.

 

Part 2 - Screen Australia

 

Clause 5 - Establishment

 

SA is established as a body corporate with a seal. The CAC Act applies to SA.

 

Clause 6 - Functions

 

This clause sets out SA’s functions and how it may perform them. SA will have a strong cultural focus to its activities in recognition of the strong public value of Australian-made films, television and other screen content. It will be expected to nurture Australian creative and technical expertise as well as recognising the importance of building a sustainable industry base comprising viable screen businesses. This is because a strong industry base is essential to deliver strong cultural outcomes.

 

Examples of ways that SA could carry out its functions include:

·           supporting and promoting the development of a commercially sustainable Australian screen production industry by developing filmmakers’ skills through providing assistance to filmmakers and their projects, for example, business skills workshops (paragraph 6(1)(a));

·           engaging in the promotion of Australian films by marketing them at film festivals and markets in other countries and supporting filmmakers to attend festivals and industry markets and trade shows (subparagraph 6(1)(b)(i));

·           engaging directly in the development and production of Australian films, such as the National Interest Program documentaries previously produced by FAL (subparagraph 6(1)(b)(i));

·           supporting the development and production of Australian films by providing finance and other support to producers of Australian films which might include providing loans, guarantees, grants or investment (subparagraph 6(1)(b)(i));

·           exhibiting, or making available to others for exhibition, Australian or other programs (subparagraph 6(1)(b)(ii)); and

·           promoting the development of screen culture in Australia by supporting film festivals involving Australian programs or other programs (paragraph 6(1)(c)).

 

SA will also administer the Producer Offset as provided in the Income Tax Assessment Act 1997 (paragraph 6(1)(d)).

 

‘Screen culture’, as referred to in paragraph 6(1)(c), includes the environment in which film and other screen content is conceived, developed, made, seen, discussed and analysed.  It is an umbrella term which includes opportunities for the public to consume, appreciate and engage with diverse screen activities. Screen culture broadly refers to many different screen based activities including production, screenings, film festivals, industry awards, conferences, seminars, professional development, exhibition, distribution, publications, websites, libraries, commentary and critical analysis.

 

The primary intent of screen culture is audience development, so as to increase public appreciation, debate, recognition and knowledge of film and television and the screen industry more generally.

 

Examples of ways SA could provide support include:

·           providing non-commercial financial assistance through a grants process to producers of Australian films (paragraph 6(2)(a));

·           investing in or providing loans to producers of Australian films on an arms-length, commercial basis (paragraph 6(2)(a));

·           providing guarantees to assist the producers of Australian films in obtaining finance (paragraph 6(2)(b));

·           commissioning a person to support or promote the development, production, promotion and distribution of Australian programs (paragraph 6(2)(c));

·           commissioning a person to make a specific film (paragraph 6(2)(c));

·           providing financial assistance to a film festival, whether showing Australian programs or otherwise, through a sponsorship arrangement (paragraph 6(2)(c)); and

·           providing film-making facilities and sound recording studios to producers of Australian films and recordings (paragraph 6(2)(d)).

 

Subclause 6(3) sets out particular areas of priority for SA in performing its functions. As outlined above, the agency will have a strong cultural focus and the ability to respond to the commercial environment for films. For example:

 

·           some areas of production are valuable for reasons such as education, stimulation of debate and recording Australian life and culture, but may not generate commercial returns and/or large audiences (e.g. children’s TV and documentaries). It is expected that SA will pay particular attention to support for these types of production (paragraph 6(3)(a) and subparagraphs 6(3)(b)(i) and (ii));

·           it is important that SA have a particular focus on programs with a high level of artistic and cultural merit (subparagraph 6(3)(b)(iii));

·           strong audience appeal is a generator of increased support from the private sector and it is important that producers seek to maximise their returns from private investment to ensure best value for the expenditure of public funds by SA. It is expected that SA will seek to maximise its ability to deliver cultural outcomes through encouraging greater use of the private sector by productions with commercial potential, especially given the recently introduced Producer Offset (subparagraph 6(3)(c)); and

·           public resources should be used responsibly to promote outcomes which benefit as wide a cross section of the population as possible, including avoiding duplication with activities undertaken by other areas of Government (subparagraph 6(3)(e)).

 

Subclause 6(4) provides for SA to charge fees, for example for admission to public exhibitions of films exhibited under subparagraph 6(1)(b)(ii), application fees for loans and charges for skills development workshops.

                                                                                                   

Subclause 6(5) provides for SA to enter into joint ventures or other arrangements directed towards the performance of the functions of SA. It is expected that particular attention will be paid to effective and efficient collaboration with other Commonwealth agencies such as AFTRS or the NFSA, as well as State government agencies responsible for support for the screen industry.

 

Subclause 6(6) invokes certain heads of Commonwealth constitutional power in relation to SA’s powers and functions to ensure the legislation would continue to have effect if the powers and functions of SA were confined to those constitutional powers.

 

Clause 7 - Powers

 

SA will have the power to do all things necessary or convenient to be done for or in connection with the performance of its functions as described in clause 6.

 

For the avoidance of doubt, subclause 7(2) contains a non-exhaustive list of specific powers of SA.  These include the power to:

·           accept various forms of gifts, whether on trust or otherwise.  This recognises that SA’s role as a centre for creative production will involve it receiving gifts from time to time (paragraph 7(2)(a));

·           act as trustee of various forms of property vested in SA on trust (paragraph 7(2)(b));

·           act on behalf of the Commonwealth or an authority of the Commonwealth in the administration of a trust relating to programs or matters connected with programs (paragraph 7(2)(c)).  This and paragraph 7(2)(b) recognise that some programs or matters connected with programs may be created or administered through trust arrangements;

·           with the written approval of the Minister, form or participate in the formation of companies (subparagraph 7(2)(d)(i)) and acquire, hold and dispose of capital in companies (subparagraph 7(2)(d)(ii)).  As SA operates to some extent in a commercial environment in its dealings with the film and television industry, there may be a need to form a company or otherwise behave in a quasi commercial manner in order to effectively leverage funding from other sources.  However, the Minister’s approval is required to ensure that such actions are fully justified and because it is important that they not impact on the core funding and activities of the agency. 

 

The approval of the Minister under this paragraph would not be a legislative instrument, by virtue of the existing exemption under item 2 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

·           do anything incidental to the performance of any of its functions (paragraph 7(2)(e)). 

 

Subclause 7(3) provides that despite anything contained in the Bill or the CAC Act, any money, programs or other property held by SA on trust must be dealt with in accordance with the obligations of SA as trustee of the trust.

 

Part 3 - The Board of Screen Australia

 

Division 1 - The Board

 

Clause 8 - Establishment

 

This clause establishes the Board of SA.

 

Clause 9 - Role

 

This clause sets out the role of the Board. Subclause 9(1) provides that the Board is responsible for the proper and efficient performance of SA’s functions. SA acts through the Board, which has the capacity to conduct the ordinary business of a board, including setting policies, procedures and directions for the agency.

 

Subclause 9(2) provides that the Board has power to do all things necessary or convenient to be done for or in connection with the performance of its duties.  In this regard, the Board is also able to authorise the CEO or other staff of SA to carry out specified activities in relation to the day to day administration under the direction of the Board. A formal delegation power is not necessary, as the fundamental role of the Board, which is to be responsible for the proper and efficient performance of SA’s functions, should not be delegated.

 

Subclause 9(3) provides that all acts and things done in the name of, or on behalf of, SA by the Board, or with the authority of the Board, are taken to have been done by SA.  An authorisation given by the Board under subclause 9(3) is not a legislative instrument under section 5 of the Legislative Instruments Act 2003 , as it is not legislative in character.

 

Subclause 9(4) allows all things done in the name of, or on behalf of, SA 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.

 

Clause 10 - Membership

 

This clause provides that the Board shall consist of the Chair, the Deputy Chair and between three and seven other members.

 

Clause 11 - Appointment of Members

 

Subclause 11(1) provides for the appointment of members including the Chair.  An instrument of appointment would not be a legislative instrument by virtue of the existing exemption in item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Subclause 11(2) provides that a member holds office on a part-time basis. Subclause 11(3) provides that a member may be appointed for up to 3 years, and subclause 11(4) provides that a person’s total period of appointment as a member (whether made up of consecutive or non-consecutive periods) may not exceed 9 years.  It is the intention that a member would usually only hold office for up to 6 years with a 9 year period of appointment for special circumstances only.

 

Subclause 11(5) provides that the performance of the functions or the exercise of the powers of the Board is not affected by reason only of the number of members falling below 5 (which is the minimum allowed by clause 10) for a period of not more than six months.

 

Clause 12 - Acting in Positions

 

This clause provides that:

·           The Deputy Chair is to act as the Chair when there is no Chair or the Chair is unavailable (subclause 12(1)) , and when so acting may exercise all the Chair’s powers and perform all the Chair’s functions (paragraph 12(2)(a)).  While the Deputy Chair is acting as the Chair, this Bill and any Act apply to the Deputy Chair as if he or she were the Chair (paragraph 12(2)(b));

·           Anything done by the Deputy Chair when acting as the Chair is not invalid merely because the occasion for the Deputy Chair to act as the Chair had not arisen or had ceased (subclause 12(3));

·           The Minister may appoint a member to act as the Deputy Chair when there is no Deputy Chair or the Deputy Chair is unavailable or acting as Chair (subclause 12(4)); and

·           The Minister may appoint a person to act as a member when there is a vacancy in the office of a member or the member is unavailable or acting as Chair or Deputy Chair (subclause 12(5)). 

 

Anything done by, or in relation to, a person acting as Deputy Chair or a member is not invalid merely because of technical problems in the appointment (subclause 12(6)).

 

Instruments of appointment made under this clause would not be legislative instruments, by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 13 - Remuneration of members

 

Subclause 13(1) provides that a SA member is to be paid such remuneration as is determined by the Remuneration Tribunal or, if no determination of that remuneration is in operation, the member is to be paid such remuneration as is prescribed in the regulations.  Subclause 13(2) provides that an SA member is to be paid such allowances as are prescribed in the regulations.

 

Clause 13 has effect subject to the Remuneration Tribunal Act 1973 which provides for the Remuneration Tribunal to conduct inquiries and make determinations on the remuneration of certain office holders.

 

Whether a determination of the Remuneration Tribunal is a legislative instrument would be determined under the Remuneration Tribunal Act 1973 .

 

Clause 14 - Leave of members

 

The Minister may grant the Chair leave of absence on such terms and conditions as to remuneration or otherwise as the Minister determines (subclause 14(1)).  Such a grant of leave would not be a legislative instrument, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

The Chair may grant another SA member leave of absence on such terms and conditions as the Chair determines (subclause 14(2)).  Such a grant of leave would not be a legislative instrument, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004

 

The Chair must notify the Minister if he or she grants to a member leave of absence for a period exceeding 6 months (subclause 14(3)).  Such a notification would not be a legislative instrument, by virtue of the existing exemption under item 20(a) of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 15 - Resignation of members

 

A SA member may resign by giving the Minister a written notice.  Such a notice would not be a legislative instrument, by virtue of the existing exemption under item 10 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 16 - Termination of appointment

 

This clause sets out the grounds upon which the Minister may terminate the appointment of a SA member.

 

The Minister may terminate the appointment of an individual SA member for misbehaviour, physical or mental incapacity (subclause 16(1)). 

 

The Minister must terminate the appointment of a member, under subclause 16(2), if:

 

·          the member becomes bankrupt, applies for relief from bankruptcy, enters into an arrangement with creditors regarding the payment of his or her debts, or assigns all or part of his or her remuneration for the benefit of creditors (paragraph 16(2)(a));

 

·          the member fails without reasonable excuse to comply with section 27F or 27J of the Commonwealth Authorities and Companies Act 1997 .  Section 27F requires a director of a Commonwealth authority to give other directors notice of any material personal interest in a matter which relates to the affairs of the authority, with certain exceptions.  Section 27J prevents a director who has a material personal interest in a matter which is being considered at a directors’ meeting from being present when that matter is being considered or voting on it, with certain exceptions (paragraph 16(2)(b)); or

 

·          the member is absent without leave from three consecutive meetings of the Board (paragraph 16(2)(c)).

 

An instrument of termination of appointment would not be a legislative instrument, by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 17 - Other terms and conditions of members

 

The terms and conditions on which a member holds office are to be as determined by the Minister except where provided for in the Bill.

 

An instrument specifying terms and conditions of appointment would not be a legislative instrument, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Division 2 - Board Procedures

 

Clause 18 - Meetings

 

Subclause 18(1) requires the Chair to convene meetings of the Board as necessary for the efficient conduct of SA’s affairs. 

 

The quorum for a meeting as provided by subclause 18(2) is a majority of the current members. However, subclause 18(3) provides that if section 27J of the Commonwealth Authorities and Companies Act 1997 (which deals with conflicts of interest and is referred to by subclause 18(2) of the Bill) requires a member not to be present during deliberations or to take part in a decision in relation to a matter and this member’s absence takes the meeting below quorum, the remaining members constitute a quorum in relation to that matter.

 

Under subclause 18(4), a question arising at a Board meeting is to be decided by a majority of members present and voting.

 

The Chair is to preside at all meetings at which he or she is present (subclause 18(5)).  In the absence of the Chair, the Deputy Chair is to preside (subclause 18(6)).  In the absence of both the Chair and the Deputy Chair, the members present are to elect one of their number to preside (subclause 18(7)).

 

Subclause 18(8) provides that the person presiding at a meeting will have a deliberative vote and, in the event of an equality of votes, also have a casting vote (i.e. the deciding vote).

 

Subclause 18(9) provides the Board must keep a record of any decisions made at a meeting.  It is not required to keep a record of all proceedings.

 

Subject to the Bill and the CAC Act, SA may regulate proceedings at its meetings as it thinks fit (subclause 18(10)).

 

Clause 19 - Decisions without meetings

 

Clause 19 allows the Board to determine that decisions can be made without a meeting. and also determine the method by which Board members are to indicate agreement with proposed decisions.

 

Subclauses 19(1) and 19(2) provide that if the Board determines that clause 19 applies in relation to a particular matter or particular matters and also determines the method by which members are to indicate agreement to a proposed decision, a resolution in relation to the matter or matters will be taken to have been passed at a meeting of the Board if:

 

·     without meeting, a majority of members entitled to vote on the proposed decision indicate their agreement in accordance with the method determined by the Board (paragraphs 19(1)(b) and (c)); and



·     all members were informed of the proposed decision, or reasonable efforts had been made to inform them of it (paragraph 19(1)(a)).

 

A member may not vote on a proposed decision if they would not be entitled to vote on the proposed decision if the matter had been considered at a meeting of the Board (subclause 19(3)).

 

The Board must keep a record of decisions made in accordance with clause 19 (subclause 19(4)).

 

Part 4 - Chief Executive Officer, staff and consultants

 

Division 1 - Chief Executive Officer

 

Clause 20 - Establishment

 

There is to be a CEO of SA.

 

Clause 21 - Role

 

The CEO is responsible for the day-to-day administration of SA (subclause 21(1)), and has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties (subclause 21(2)). The CEO must act in accordance with any policies and directions given by the Board in writing (subclause 21(3)), except in relation to the CEO’s powers under the Public Service Act 1999 .  Such policies and directions, should they be in writing, are administrative not legislative in character and therefore not a legislative instrument under section 5 of the Legislative Instruments Act 2003 , which subclause 21(6) confirms. 

 

All acts and things done in the name of or on behalf of SA by the CEO, or with the authority of the CEO, are taken to have been done by SA (subclause 21(4)).  An authority given by the CEO is not a legislative instrument under section 5 of the Legislative Instruments Act 2003 , as it is not legislative in character.

 

If a function or power of SA is dependent on the opinion, belief or state of mind of SA in relation to a matter, the function or power may be exercised upon the opinion, belief or state of mind of the CEO or a person acting on the authority of the CEO (subclause 21(5)).

 

Clause 22 - Appointment

 

The Board appoints the CEO after consulting with the Minister (subclause 22(1)), for a period not to exceed five years (subclause 22(3)).  The CEO holds office on a full-time basis (subclause 22(2)) and must not be a member of the Board (subclause 22(4)).  An instrument of appointment as CEO would not be a legislative instrument, by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 23 - Acting appointments

 

The Chair may, after consulting the Minister, appoint an acting CEO during a vacancy in the office of CEO or while the CEO is absent or unavailable (subclause 23(1)).  An instrument of appointment as acting CEO would not be a legislative instrument, by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

It is expected that this provision can encompass standing arrangements to cover short term acting periods or where an urgent acting appointment needs to be made.

 

Anything done by a person purporting to act under such an appointment is not invalid merely because of technical problems with the appointment of the acting CEO (subclause 23(2)).

 

Clause 24 - Other employment

 

The CEO must not engage in paid employment outside the duties of the CEO’s office without the Chair’s approval (subclause 24(1)).  The Chair must notify the Minister of any such approval (subclause 24(2)).  Such approval would not be a legislative instrument, by virtue of the existing exemption under item 2 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 25 - Remuneration

 

The CEO is to be paid such remuneration as is determined by the Remuneration Tribunal or, if no determination of that remuneration is in operation, the CEO is to be paid such remuneration as is prescribed in the regulations (subclause 25(1)).  The CEO is to be paid such allowances as are prescribed in the regulations (subclause 25(2)).

 

Clause 25 would have effect subject to the Remuneration Tribunal Act 1973 which provides for the Remuneration Tribunal to conduct inquiries and make determinations on the remuneration of certain office holders (subclause 25(3)).

 

Whether a determination of the Remuneration Tribunal is a legislative instrument would be determined under the Remuneration Tribunal Act 1973 .

 

Clause 26 - Leave

 

The CEO will have such recreation leave entitlements as are determined by the Remuneration Tribunal (subclause 26(1)).

 

The Chair may grant the CEO leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chair determines (subclause 26(2)).  The granting of leave would not be a legislative instrument, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative Instrument Regulations 2004 .

 

The Chair must notify the Minister if the Chair grants to the CEO leave for a period exceeding one month (subclause 26(3)).  Such a notification would not be a legislative instrument, by virtue of the existing exemption under item 20(a) of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 27 - Disclosure

 

Clause 27 provides that the CEO must disclose to the Minister and the Chair all direct or indirect pecuniary interests that the CEO has or acquires which conflict or could conflict with the proper performance of the CEO’s duties.   Such a disclosure given by the CEO is not a legislative instrument under section 5 of the Legislative Instruments Act 2003 , as it is not legislative in character.

 

Clause 28 - Resignation

 

The CEO may resign by giving a written resignation to the Chair (subclause 28(1)).  Such a written resignation would not be a legislative instrument, by virtue of the existing exemption under item 10 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

The CEO must notify the Minister if the CEO resigns (subclause 28(2)).

 

Clause 29 - Termination

 

This clause sets out the grounds upon which the Board may terminate the appointment of the CEO.

 

The Board may terminate the appointment of the CEO for misbehaviour, physical or mental incapacity (paragraph 29(1)(a)).  The Board may also terminate the appointment if in their opinion there has been a significant period of unsatisfactory performance by the CEO (paragraph 29(1)(b)).

 

In addition, the Board must terminate the appointment of the CEO under subclause 29(2) if:

 

·          the CEO becomes bankrupt, applies for relief from bankruptcy, enters into an arrangement with creditors regarding the payment of his or her debts, or assigns all or part of his or her remuneration for the benefit of creditors (paragraph 29(2)(a));

 

·          the CEO is absent without leave for 14 consecutive days or for 28 days in any 12 months (paragraph 29(2)(b));

 

·          the CEO fails without reasonable excuse to comply with clause 27 of the Bill, which deals with disclosure of conflicts of interest and possible conflicts of interest (paragraph 29(2)(c)); or

 

·          without the approval of the Chair under clause 24 of the Bill, the CEO engages in paid employment outside of the duties of his or her office (paragraph 29(2)(d)).

 

If the Board terminates the appointment of the CEO, the Board must notify the Minister of the termination (subclause 29(3)).

 

An instrument of termination of appointment would not be a legislative instrument, by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Clause 30 - Other terms and conditions

 

Where not covered by this Bill, the terms and conditions on which the CEO holds office are to be as determined by the Board.

 

An instrument specifying terms and conditions of appointment would not be a legislative instrument, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Division 2 - Staff and consultants

 

Clause 31 - Staff

 

Subclause 31(1) provides that the staff of SA will consist of people employed by SA under subclause 31(2) as well as any people engaged under the Public Service Act 1999 for the purposes of SA. It is expected that SA would be cognisant of employment law when employing staff under subclause 31(2).

 

Staff of SA will generally be engaged under the Public Service Act 1999 .  However, some persons occupying specialist industry jobs that are not readily accommodated within the Public Service framework will be employed by SA under subclause 31(2).

 

Instruments of employment are not legislative instruments, by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .  Instruments determining conditions of employment are not legislative instruments, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

For the purposes of the Public Service Act 1999 , the CEO and the staff of SA engaged under the Public Service Act 1999 together constitute a Statutory Agency with the CEO as the Head of that Statutory Agency (subclause 31(3)).

 

Clause 32 - Maternity leave for non-APS employees of Screen Australia

 

Clause 32 provides that the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act) applies to a person employed by SA as though the person were employed by the Commonwealth under the PS Act and therefore a person to whom the ML Act applies under subsection 5(1) of that Act.

 

Clause 33 - Long service leave for non-APS employees of Screen Australia

 

Clause 33 provides that the Long Service Leave (Commonwealth Employees) Act 1976 (LSL Act) applies to a person employed by SA as though the person were employed in Government Service within the meaning of section 10 of the LSL Act.

 

Clause 34 - Consultants

 

SA may engage consultants to assist in the performance of its functions.  This provision is not intended to affect the operation of clause 7.

 

An instrument of engagement would not be a legislative instrument, by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

Part 5 - Planning

 

Clause 35 - Corporate plan

 

The Board must prepare a corporate plan for SA at least once a year (subclause 35(1)).  This plan is a rolling plan and must cover a period of at least three years from the time it is made (subclause 35(2)).  Although corporate plans will cover at least 3 financial years they will be prepared on an annual rolling basis so they will be updated annually with the previous year deleted and a further out year added on. 

 

Subclause 35(3) provides that the Minister may give the Board written instructions with which the Board must comply when preparing the plan and any variations to it.  For example, this subclause would contemplate the Minister instructing the Board as to the time when a plan must be submitted for approval.  It is intended that the first corporate plan be prepared by 30 September 2008 and the Minister may instruct SA in this regard.

These instructions are administrative in effect and not legislative in character, therefore not a legislative instrument under section 5 of the Legislative Instruments Act 2003 . For the avoidance of doubt, subclause 35(4) provides that these instructions are not legislative instruments.

 

A corporate plan would not be a legislative instrument, by virtue of the existing exemption under item 34 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

For the purposes of this clause, in line with usual practice for corporate plans, a year is a financial year covering a period from 1 July in any year until 30 June in the following year.

 

Clause 36 - Contents of corporate plan

 

Subclause 36(1) provides that the plan must include:

 

·          a statement of the objectives that SA will pursue in the performance of its functions under clause 6 (paragraph 36(1)(a));

 

·          the strategies and policies that SA will adopt in order to achieve those objectives (paragraph 36(1)(b));

 

·          performance indicators for the assessment of SA’s performance of its functions.  It is expected that these indicators will relate to other aspects of SA’s corporate plan (paragraph 36(1)(c));

 

·          the investment and financing programs of SA, including its strategies for managing financial risks (paragraph 36(1)(d));

 

·          financial targets and projections for SA (paragraph 36(1)(e));

 

·          an analysis of factors likely to affect achievement of targets or create significant financial risk for SA or for the Commonwealth (paragraph 36(1)(f));

 

·          a review of recent performance measured against the most recent relevant plan (paragraph 36(1)(g)). For example, a corporate plan prepared for 2008/09 for the years 2009/10 and beyond, would include a review of performance of 2007/08 and that part of 2008/09 to date; and

 

·          such other matters as the Minister directs, if any (paragraph 36(1)(h)). A direction made in writing under paragraph 36(1)(h) would not be a legislative instrument, because such a direction is included in the exemption at item 5 of the table in section 7 of the Legislative Instruments Act 2003 . Subclause 36(3) confirms that such a direction is not a legislative instrument.

 

The plan may also include any other matters (subclause 36(2)).

 

Clause 37 - Approval of corporate plan by Minister

 

The plan must be given to the Minister for approval before the start of the period to which it relates (subclause 37(1)).  The Minister may, in written notice to the Board, approve the plan or request the Board to revise it for the reasons set out in the written notice (subclause 37(2)). Such a notice from the Minister is not a legislative instrument by virtue of the exemptions in item 21 of the table in section 7 of the Legislative Instruments Act 2003 and item 3 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004. Additionally, the notice is administrative in effect and therefore not a legislative instrument under section 5 of the Legislative Instruments Act 2003 . Subclause 37(5) confirms this.

 

If the Minister requests that the Board revise the plan, the Board must revise it and give the revised plan to the Minister for approval (subclause 37(3)). 

 

The plan comes into force on the day on which it is approved by the Minister or the first day of the period to which it relates, whichever comes first (subclause 37(4)).

 

Clause 38 - Variation of corporate plan

 

The Board may at any time vary a corporate plan, whether or not it is in force (subclause 38(1)). 

 

An instrument that varies an instrument that is not itself a legislative instrument would not be a legislative instrument, by virtue of the existing exemption under item 33 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

 

The Minister may at any time request the Board to vary a corporate plan, whether or not it is in force.  The Board must comply with any such request (subclause 38(2)). Such a request is not a legislative instrument by virtue of the exemptions in item 21 of the table in section 7 of the Legislative Instruments Act 2003 and item 24 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004. Additionally, the notice is administrative in effect and therefore not a legislative instrument under section 5 of the Legislative Instruments Act 2003 . Subclause 38(6) confirms this.

 

A variation must be given to the Minister for approval (subclause 38(3)), and comes into force on the day on which it is approved by the Minister (subclause 38(4)).  If the plan is already in force when a variation to it is approved by the Minister, the plan continues in force on and after the day on which it is varied (subclause 38(5)). An approval by the Minister is not a legislative instrument by virtue of the exemptions in item 21 of the table in section 7 of the Legislative Instruments Act 2003 and item 3 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004. Additionally, the notice is administrative in effect and therefore not a legislative instrument under section 5 of the Legislative Instruments Act 2003 . Subclause 38(6) confirms this.

 



Part 6 - Finance

 

Clause 39 - Money payable to Screen Australia

 

Money appropriated by the Parliament for the purposes of SA is payable to SA (subclause 39(1)).

 

The Finance Minister, or the Minister administering the Financial Management and Accountability Act 1997 , may give directions about the amount and timing of payments made to SA under this clause (subclause 39(2)).  A direction by the Finance Minister is administrative, not legislative in character and therefore is not a legislative instrument under section 5 of the Legislative Instruments Act 2003. Subclause 39(3) confirms this.

 

Clause 40 - Application of money by Screen Australia

 

The money of SA is to be applied only in payment or discharge of the costs expenses and other obligations incurred or undertaken by SA in the performance of its functions and the exercise of its powers, and in payment of any remuneration or allowances payable under this Bill (subclause 40(1)).

 

Subclause 40(1) does not prevent SA investing surplus money under section 18 of the CAC Act (subclause 40(2)).

 

Clause 41 - Restrictions on financial transactions

 

Subject to certain exceptions set out in subsection 41(2), SA must not, without the approval of the Minister:

 

·          acquire any property, right or privilege for a consideration exceeding in amount or value the amount prescribed by the regulations (paragraph 41(1)(a));

 

·          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 by the regulations (paragraph 41(1)(b)) ;

 

·          enter into a contract for the construction of a building for SA, being a contract under which SA is to pay an amount exceeding the amount prescribed by the regulations (paragraph 41(1)(c)); or

 

·          enter into a lease of land for a period exceeding 10 years (paragraph 41(1)(d)).

 

Paragraphs 41(1)(a) and 41(1)(b) do not apply to transactions relating to the functions described in subparagraph 6(1)(b)(i) (subsection 41(2)).  This exception allows SA broad flexibility in performing its function of supporting and engaging directly in the production of Australian programs.  A key function for SA is investing significant sums of money in film and television development, production and distribution activities.  It would not be appropriate for the Minister to approve each decision in relation to such spending as this should be an arms length process from Government. The agency and its Board have the appropriate knowledge and skills to decide where the funding should be allocated. 

 

However, under subclause 41(3), the regulations may prescribe limits on the total amounts of money that may be committed by SA in performing its functions under paragraph 6(1)(a) and subparagraph 6(1)(b)(i).   Such a prescription allows for appropriate controls to be set on overall commitments to particular broad categories of funding, without derogating from SA’s ability to make individual funding decisions on an arm’s length basis as provided under subsection 41(2)(a).

 

Paragraphs 41(1)(a) and 41(1)(b) also do not apply to the investment of money by SA under section 18 of the CAC Act (subclause 41(2)).

 

An approval given by the Minister under subclause 41(1) is not a legislative instrument by virtue of the exemption in item 3 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004. Additionally, the notice is administrative in effect and therefore not a legislative instrument under section 5 of the Legislative Instruments Act 2003 . Subclause 41(4) confirms this.

 

Clause 42 - Taxation

 

SA is not subject to taxation under any law of the Commonwealth or of a State or Territory (subclause 42(1)) unless the regulations provide that taxation under a specified law applies (subclause 42(2)).  This provision is in line with subsection 41(1) of the AFC Act and hence SA will have the same tax arrangements as currently exist for the AFC.  The result is that SA would be exempt from tax but still subject to special taxes such as the Goods and Services Tax.  In this regard the note to this clause explains that despite subclause 42(1) SA may be subject to taxation under certain laws, for example section 177-5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax Assessment Act 1986 ).

 

 

Part 7 - Other matters

 

 

Clause 43 - Annual reports

 

Under section 9 of the CAC Act, SA must prepare an annual report to be tabled in Parliament by the Minister.  Clause 43 provides that the report must , for the period covered by the report, include a report on the guarantees, if any, that have been given by SA, including the total amount the subject of these guarantees (paragraphs 43(a) and (b)).

 

 

 

Clause 44 - Ministerial direction

 

The Minister may, by legislative instrument, give written directions to the Board in relation to the performance of the functions of and the exercise of the powers of SA (paragraph 44(1)(a)).

 

The Minister may also, by legislative instrument, require the provision of a report or advice on any matter that relates to any of SA’s functions and powers (paragraph 44(1)(b)).

 

Section 42 of the Legislative Instruments Act 2003 , which provides for disallowance, does not apply to directions given under subclause 44(1) by virtue of the existing exemption under item 41 of the table in subsection 44(2) of that Act. The sunsetting provision in Part 6 of the Legislative Instruments Act 2003 do not apply to a direction given under subclause 44(1), by virtue of section 54 of that Act.

 

The Minister must not give a direction in relation to a decision by the Board to provide support to a particular person or for a particular program (subclause 44(2)).  The types of support SA may provide are given in subclauses 6(1) and 6(2).  ‘Program’ is a term defined in clause 3.

 

The Board must ensure that any direction given by the Minister under subclause 44(1) is complied with (subclause 44(3)).

 

Legislative instruments made under this clause are not subject to disallowance, by virtue of the existing exemption under item 41 of the table in subsection 44(2) of the Legislative Instruments Act 2003 .

 

Clause 44 does not operate to oust section 16 of the CAC Act (subclause 44(4)). Paragraph 44(1)(b) includes directions in relation to specific matters, and not just the general operations of the authority.

 

Clause 45 - Regulations

 

The Governor General may make regulations prescribing matters required or permitted by this Bill to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Bill.

 

Any such regulations are legislative instruments under section 6(a) of the Legislative Instruments Act 2003 .