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Australia Council Bill 2013

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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.

 



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

 



 

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.

 



 

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

 



 

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. 

 



 

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.