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National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

NATIONAL PORTRAIT GALLERY OF AUSTRALIA

(CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2012

 

 

 

 

 

 

 

 

 

 

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)



 



 



NATIONAL PORTRAIT GALLERY OF AUSTRALIA

(CONSEQUENTAL AND TRANSITIONAL PROVISIONS) BILL 2012

 

 

 

OUTLINE

 

The National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill (the Bill) contains consequential amendments and transitional arrangements related to the proposed establishment of the National Portrait Gallery of Australia (the Gallery) as a statutory authority. The National Portrait Gallery will cease operations as a Branch within the Department of Regional Australia, Local Government, Arts and Sport (the Department) and be established as a Commonwealth authority subject to the Commonwealth Authorities and Companies Act 1997 with effect from 1 July 2013 by the proposed National Portrait Gallery of Australia 2012 Bill.

 

Schedule 1 to the Bill makes a number of minor amendments to the Archives Act 1983 (Archives Act) including some minor consequential amendments as a result of establishing the Gallery as a statutory authority holding a national collection of artworks.

 

Schedule 2 to the Bill contains transitional provisions, including the transfer of assets and liabilities, matters in relation to the transfer of employees from the Department to the Gallery and the closing of the National Portrait Gallery Special Account.

 

Financial impact statement

 

The National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012 is not expected to have an impact on Commonwealth expenditure.

 

 



Statement of Compatibility with Human Rights

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

 

The National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012 deals with transitional matters including transferring assets of the current National Portrait Gallery, which is a branch within the Department of Regional Australia, Local Government, Arts and Sport, to the new statutory authority.  The Bill also provides for minor consequential amendments of the Archives Act 1983 .

 

This Bill 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 .

 

This Bill does not engage any of the applicable rights or freedoms and is compatible with human rights as it does not raise any human rights issues.



 

 

NATIONAL PORTRAIT GALLERY OF AUSTRALIA

(CONSEQUENTAL AND TRANSITIONAL PROVISIONS) BILL 2012

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.                   This clause is a formal provision specifying the short title of the Bill. The Bill, when enacted, should be cited as the National Portrait Gallery of Australia (Consequential and Transitional Provisions) Act 2012 .

 

Clause 2 - Commencement

 

2.                   Clause 2 provides that each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.

 

3.                   Item 1 of the table provides that clauses 1 to 3 of the Bill (containing the short title, the commencement provision and the provision explaining the operation of the Schedules to the Bill) would commence on the date on which the Bill receives the Royal Assent.

 

4.                   Item 2 of the table provides that Schedule 1 (Consequential amendments) and Schedule 2 (Transitional provisions) will commence at the same time as the National Portrait Gallery of Australia Act 2012 which is scheduled to commence on 1 July 2013.

 

Clause 3 - Schedule(s)

 

5.                   Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or repealed as set out in that Schedule and that any other item in a Schedule has effect according to its terms.

 

6.                   Schedule 1 to the Bill provides for extending the definition of exempt material under the Archives Act to material in the national collection maintained by the National Portrait Gallery of Australia and also a number of minor grammatical and phrasing amendments to subsection 3(1) of the Archives Act.  

 

7.                   Schedule 2 to the Bill contains transitional provisions.

 

8.                   Part 1 of Schedule 2 to the Bill contains the definitions for the Schedule.

 

9.                   Part 2 provides for the transfer of assets and liabilities from the Commonwealth to the Gallery.

 

10.               Part 3 provides for the transfer of other matters including legal proceedings of the Commonwealth and references in instruments.

 

11.               Part 4 provides for the continuation of employee terms and conditions under an enterprise agreement on their transfer from the Department to the Gallery under section 72 of the Public Service Act 1999 until such a time that the Gallery negotiates a new agreement.

 

12.               Part 5 provides for other transitional issues including:

·            exemption from stamp duty;

·            the closing of the National Portrait Gallery Special Account and the provision of an equivalent amount to be appropriated to the Gallery;

·            reasonable compensation to be paid for any acquisition of property under this Bill other than on just terms;

·            the appointment of an acting Director if a Director and at least 3 Board members for the Gallery are not appointed before 1 July 2013; and

·            a delegation provision.

 

SCHEDULE 1 - Consequential amendments

 

13.               Schedule 1 provides for consequential amendments to the Archives Act . This includes the addition of the artworks in the collection of the National Portrait Gallery of Australia to be considered exempt material under that Act and also minor title changes to other national collecting institutions and grammatical amendments.

 

Item 1 - Subsection 3(1) (at the end of paragraphs (a) and (b) of the definition of exempt material )

 

14.               A minor grammatical amendment provided with the addition of ‘or’ at the end of the sub points.

 

Item 2 - Subsection 3(1) (paragraph (c) of the definition exempt material )

 

15.               At the time of commencement of the Archives Act the National Gallery of Australia was referred to as the Australian National Gallery. This amendment ensures the reference to the title of the Gallery in the Archives Act is consistent with the amended National Gallery Act 1975 .

 

Item 3 - Subsection 3(1) (after paragraph (c) of the definition of exempt material )

 

16.               This provision provides for material in the national collection of artworks maintained by the Gallery to be exempt from being Commonwealth Records under the Archives Act. This exemption is in accordance with the majority of the other national collecting institutions as listed under subsection 3(1) of the Act, including the National Library of Australia, the National Gallery of Australia and the National Museum of Australia.

 

Item 4 - Subsection 3(1) (paragraph (d) of the definition exempt material )

 

17.               At the time of commencement of the Archives Act the National Museum of Australia was referred to as the Museum of Australia. This amendment ensures the reference to the title of the Museum is consistent with the amended National Museum of Australia Act 1980 .



 

SCHEDULE 2 - Transitional provisions

 

18.               Schedule 2 provides transitional arrangements for the assets, liabilities, staff and other matters for which the responsibility currently rests with the Commonwealth to be transferred to the National Portrait Gallery of Australia, as established under the National Portrait Gallery of Australia Act 2012.

 

Part 1—Definitions

 

Item 1 - Definitions

 

19.               Item 1 contains definitions for the purposes of Schedule 2. In particular the ‘National Portrait Gallery program’ means the activity that was administered by the Commonwealth and generally known as the National Portrait Gallery immediately before the transition time. ‘Transition time’ means the commencement of this Schedule, which under Clause 2 is at the same time as the National Portrait Gallery of Australia Act 2012 commences.

 

Part 2—Transfer of assets and liabilities

 

Item 2 - Transfer of assets from the Commonwealth to the National Portrait Gallery of Australia

 

20.               Item 2, subitems 2(1) and 2(3) provide that at the transition time, the assets of the Commonwealth immediately before the transition time which are for the purposes of the National Portrait Gallery program would become the assets of the National Portrait Gallery of Australia without any conveyance, transfer or assignment. The assets that will become the Gallery’s assets would include items such as furniture currently used by the Gallery at its building in Parkes, the collection of artworks and related material of the Gallery which will be known as the national collection under the National Portrait Gallery of Australia Act 2012 , and all intellectual property that relates solely to the Gallery including the trademark of the Gallery.

 

21.               Subitem 2(2) establishes that this item does not apply to land or buildings, but does apply to structures and other improvements on the land. The land and the current building at Parkes in the Australian Capital Territory will be made available to the Gallery under the National Portrait Gallery of Australia Act 2012 . However, certain structures and other improvements on the land, which include such things such as works of art which are part of the collection and displayed outside, lighting, irrigation systems and closed circuit television security cameras, will become assets of the Gallery.

 

22.               Subitem 2(4) allows assets which are subject to trust, which may include works of art bequeathed to the Gallery, held by the Commonwealth immediately before the transition time to be transferred to the Gallery on trust and subject to the terms of the trust on which the asset was so held by the Commonwealth.

 

23.               Subitem 2(5) enables the Minister to determine, in writing, that this item does not apply in relation to a specified asset. The effect of this subitem is to allow the Commonwealth to determine, prior to commencement, if there are any such assets which, despite being currently for the purposes of the National Portrait Gallery program, are not to be transferred to the Gallery.

 

24.               A determination made under subitem 2(5) is not a legislative instrument as it is not legislative in character and therefore not within the meaning of section 5 of the Legislative Instruments Act 2003 . Subitem 2(6) confirms this and is included to assist readers.

 

Item 3 - Transfer of liabilities from the Commonwealth to the National Portrait Gallery of Australia

 

25.               Item 3, subitems 3(1) and 3(2) provide that at the transition time, the liabilities of the Commonwealth immediately before the transition time which are for the purposes of the National Portrait Gallery program would become the liabilities of the National Portrait Gallery of Australia without any conveyance, transfer or assignment.

 

26.               Subitem 3(3) enables the Minister to determine, in writing, that subitem 3(1) does not apply in relation to a specified liability. The effect of this provision is to allow the Commonwealth to determine, prior to commencement, if there are any liabilities which may be for the purposes of the National Portrait Gallery program but are not intended to be transferred to the Gallery.

 

27.               A determination made under subitem 3(3) is not a legislative instrument, as it is not legislative in character and therefore not within the meaning of section 5 of the Legislative Instruments Act 2003 . Subitem 3(4) confirms this and is included to assist readers.

 

Item 4 - Other transfers of assets and liabilities

 

28.               This item enables the Minister to declare in writing that assets and liabilities, other than those to which item 2 or 3 apply or that are land or buildings, are to transfer to the Gallery. This provision allows for assets and liabilities which may not be covered under items 2 and 3, such as matters which may not be interpreted to be for the purposes of the Gallery (such as a related activity or asset of the Department), to be transferred if appropriate to the operation of the Gallery.

 

29.               A determination made under subitem 4(2) is not a legislative instrument, as it is not legislative in character and therefore not within the meaning of section 5 of the Legislative Instruments Act 2003 . Subitem 4(4) confirms this and is included to assist readers.

 

Item 5 - Certificates relating to vesting of assets

 

30.               Item 5 provides for a simplified procedure for the registration of assets under item 2 or 4. This will apply in the following way:

·            If the Minister signs a certificate identifying the asset and stating that the asset has become vested in the Gallery; and

·            the certificate is lodged with the person or authority who is responsible for keeping a register in relation to assets of the kind concerned (the asset official as defined in item 1 of Schedule 2); then

·            that asset official may deal with and give effect to the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind and make such entries in a register as are necessary, having regard to the effect of Part 2 of Schedule 2 to this Bill.

 

31.               A certificate made under subitem 5(1)(b) is not a legislative instrument, as it is not legislative in character and therefore not within the meaning of section 5 of the Legislative Instruments Act 2003 . Subitem 5(3) confirms this and is included to assist readers.

 

Part 3—Transfer of other matters

 

Item 6 - Legal proceedings of the Commonwealth

 

32.               Item 6 applies if, immediately before the transition time, there were any proceedings to which the Commonwealth was a party or that were pending, in any court or tribunal and those proceedings relate to either:

·            an asset or liability that, as a result of the operations of item 2, 3 or 4, becomes an asset or liability of the Gallery; or

·            otherwise related to the National Portrait Gallery program; then

the National Portrait Gallery of Australia is substituted for the Commonwealth from the transition time, as a party to the proceedings.

 

Item 7 - References in certain instruments to the Commonwealth

 

33.               Item 7 applies to instruments that:

·            are in force immediately before the transition time; and

·            contain reference to the Commonwealth and the reference to an asset or liability, that as a result of item 2, 3 or 4, becomes an asset or liability of the Gallery or otherwise relates to the National Portrait Gallery program;

then such instruments have effect, from the transition time, as if the reference to the Commonwealth were a reference to the National Portrait Gallery of Australia.

 

34.               This item does not operate to transfer the instruments themselves, it just amends the references within the instruments.

 

35.               Subitem 7(3) enables the Minister to determine, in writing, that subitem (1) does not apply in relation to a specified instrument, with the effect that the reference to the Commonwealth in that instrument will not be a reference to the National Portrait Gallery of Australia.

 

36.               A determination made under subitem 7(3) is not a legislative instrument, as it is not legislative in character and therefore not within the meaning of section 5 of the Legislative Instruments Act 2003 . Subitem 7(4) confirms this and is included to assist readers.

 



 

Part 4 - Staff

 

Item 8 - Transitional - employees of the National Portrait Gallery of Australia

 

Transferring employees

 

37.               The employees working on the National Portrait Gallery program immediately before the transition time will be transferred from the Department to the National Portrait Gallery of Australia under a determination made by the Public Service Commissioner under section 72 of the Public Service Act 1999 . Proposed section 41 of the National Portrait Gallery of Australia Act 2012 provides that the staff of the Gallery must be engaged under the Public Service Act 1999 .

 

38.               Item 8(2) provides for the transferring employees covered by a collective or enterprise agreement to continue their employment on the same terms and conditions as covered by that agreement until the National Portrait Gallery of Australia negotiates a new enterprise agreement in accordance with the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 . The Department of Regional Australia, Regional Development and Local Government enterprise agreement 2011 is the designated agreement under item 8.

 

39.               The inclusion of these items ensures that there will be no disadvantage to staff transferring to the newly established Commonwealth authority and once a new enterprise agreement is negotiated it can be put in place despite the nominal expiry date of The Department of Regional Australia, Regional Development and Local Government enterprise agreement 2011 .

 

40.               Item 8(3) provides for the continuation of terms and conditions of employees covered by a determination made under subsection 24(1) of the Public Service Act 1999 as if that determination were made by the National Portrait Gallery of Australia.

 

41.               Items 8(2) and 8(3) ensure a smooth and fair transition of terms and conditions of employment for transferring staff and allows the National Portrait Gallery of Australia and its employee’s time to negotiate new terms and conditions.

 

New employees

 

42.               Items 8(4) and (5) ensure that any employees of the National Portrait Gallery of Australia employed after the transition time can be employed under the same enterprise agreement as the transferring employees. In addition it provides that, as for transferring employees, the new employees would remain covered by that existing enterprise agreement only until the Gallery negotiates a new enterprise agreement.

 

43.               Item 8(6) provides that the Director of the Gallery may delegate the power conferred by paragraph 8(5)(d), where necessary, to provide notice to a new employee to determine that the designated agreement is applicable to the new employee.

 



 

Item 9 - Transitional - regulations relating to the transfer for APS employees to the National Portrait Gallery of Australia

 

44.               Item 9 provides a regulation making power to allow the Governor-General to make regulations providing for transitional arrangements for transferring employees.

 

Item 10 - Separate agreements relating to employment

 

45.               As The Department of Regional Australia, Regional Development and Local Government enterprise agreement 2011 is the designated agreement under item 8 and it will cover employees in the Department and the National Portrait Gallery of Australia, this item 10 provides for that designated agreement in each agency to be treated as separate agreements for the purposes of the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. This means that the terms and conditions for the Gallery’s employees will not be affected if the Department amends or terminates its designated agreement and vice versa.

 

Part 5 - Other matters

 

Item 11 - Exemption from stamp duty and other State or Territory taxes

 

46.               This item provides that no stamp duty or other tax is payable under a law of a State or Territory in respect of an exempt matter or anything connected with an exempt matter.  ‘Exempt matter’ is defined in subitem 11(2) as the vesting of an asset or liability under Schedule 2 of the Bill, or any other operation of the Schedule.

 

47.               Subitem 11(3) enables the Minister to certify in writing that a specified matter is an exempt matter or that a specified thing is connected with a specified exempt matter. 

 

48.               A certification by the Minister under subitem 11(3) is not a legislative instrument, as it is not legislative in character and therefore not within the meaning of section 5 of the Legislative Instruments Act 2003 . Subitem 11(4) confirms this and is included to assist readers.

 

Item 12 - National Portrait Gallery Special Account

 

49.               Item 12 provides for the transfer of any funds standing to the credit of the National Portrait Gallery Special Account to the National Portrait Gallery of Australia at the transition time.

 

50.               The National Portrait Gallery Special Account was established under subsection 20(1) of the Financial Management and Accountability Act 1997 (FMA Act) in 2005 for the purposes of the Gallery including to receive tax deductible donations for the activities of the gallery such as the acquisition of works of art for the national collection and the organising of activities and exhibitions in accordance with the Gallery’s program.

 

51.               As a statutory authority the National Portrait Gallery of Australia cannot hold a special account under the FMA Act. Therefore item 12(1) abolishes the National Portrait Gallery Special Account at the transition time, item 12(2) provides that the amount standing to the credit of the special account immediately before the transition time is payable to the Gallery at the transition time and item 12(3) provides that those funds payable to the Gallery, if any, are to be paid to the Gallery through an appropriation.

 

Item 13 - Constitutional safety net

 

52.               This item is intended to ensure that any acquisitions of property under the Bill are made in accordance with paragraph 51(xxxi) of the Constitution, which requires that they be on just terms.

 

53.               The operation of the Bill may result in the acquisition of property by the Commonwealth. If it would do so on otherwise than just terms, the Commonwealth must pay a reasonable amount of compensation to the person (subitem 13(1)). In the absence of agreement, the person may institute proceedings for the recovery of reasonable compensation (subitem 13(2)).

 

54.               In item 13, ‘acquisition of property’ and ‘just terms’ each have their respective meanings under paragraph 51(xxxi) of the Constitution.

 

Item 14 - Certificates taken to be authentic

 

55.               Item 14 provides that a document that appears to be a certificate made or issued under a particular provision of Schedule 2 is taken to be such a properly given certificate unless the contrary is established.

 

Item 15 - Acting Director

 

56.               The National Portrait Gallery of Australia Act 2012 provides for the first Director of the Gallery to be appointed by the Minister. However if, due to unforeseen circumstances, the recruitment of this position has not been finalised by the commencement date of 1 July 2013 it may be necessary to appoint a person to act as Director to ensure the continued operation of the Gallery. Under section 33 of the National Portrait Gallery of Australia Act 2012, acting Director appointments are made by the Board of the Gallery with the agreement of the Minister. However, as the appointment of Board members will also be undertaken only with effect from commencement of that Bill, it is conceivable that a fully functioning Board may not be in place to allow such an acting appointment to be made.

 

57.               Item 15 enables the Minister to appoint a person to act as Director should this situation occur.

 

Item 16 - Delegation by Minister

 

58.               Under this item, the Minister may delegate in writing all or any of his or her powers under this Schedule to the Secretary of the Department, or a Senior Executive Service employee or acting Senior Executive Service employee of the Department. A delegate under this item must, in exercising powers or functions under a delegation, comply with any directions of the Minister (subitem 16(2)).

 

59.               Such a delegation is not a legislative instrument under the exemption in item 1 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004 .

Item 17 - Regulations

 

60.               Under this item, the Governor General may make regulations prescribing matters of a transitional nature, including prescribing any saving or application provisions, relating to the enactment of this Act or to the National Portrait Gallery of Australia Act 2012.

 

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