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Wednesday, 6 December 2000
Page: 20813

Senator ALSTON (Minister for Communications, Information Technology and the Arts) (9:33 AM) —I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted

The speeches read as follows—


The National Museum of Australia will open in 2001 as part of the celebrations of Australia's centenary as a federated nation. Just as museums around the world are rethinking their role and purpose in society as they face the new millennium, the National Museum of Australia has also been defining its role as a museum for the 21st century.

As a new museum opening in the new millennium, the National Museum of Australia cannot simply be a traditional museum concept with new technology. Both educational and entertaining, the Museum will employ a fresh and exciting approach to Australian history, culture and the environment—presenting its varied subject matter through the blending of exhibits, technology, media, live performance and hands-on activities within dynamic architectural and landscape spaces.

As a modern cultural institution, the National Museum must be provided with the proper equipment and functionality to enable it to operate successfully within this new environment as a premier cultural heritage resource for the Australian nation. The National Museum's powers to undertake the range of activities it proposes requires the foundation of an appropriate legal framework.

The National Museum of Australia Amendment Bill 2000 is an essential part of that framework. It makes several critical and other desirable amendments to the National Museum of Australia Act 1980 to ensure that the Museum opening in March 2001 has the power to undertake the range of activities it proposes to engage in.

The Bill has its origins in the need to bring the Act up to date for the opening of the National Museum in March 2001 as the flagship for the Centenary of Federation. It will clarify that the National Museum can engage fully in its proposed activities.

Against this background the Bill has as its main objectives:

· to allow the Museum of exhibit material which relates to Australia's future as well as its past;

· to clarify that the Museum can undertake a range of fund raising activities;

· to allow the Museum to establish a Fund;

· to increase the value of historical material which may be disposed of without Ministerial approval; and

· to correct a technical error to relate disclosure of pecuniary interest to the relevant sections of the Commonwealth Authorities and Companies Act 1997.

The functions of the Museum include exhibiting historical material and holding temporary exhibitions of other material. The Museum proposes to exhibit a permanent children's exhibition on the future of cities through a 3D presentation. To allow the Museum to permanently exhibit material relating to Australia's future as well as its past, a new function has been added to this effect.

In relation to fund raising, the Act is being amended to better reflect the commercial requirements in relation to the Museum's functions. While some of the proposed activities are arguably already within power, others are not and any amendments have been modelled on those of other national cultural institutions, in particular the Australian National Maritime Museum Act 1990, as it is more recently drafted and reflects the commercial activities generally expected to be undertaken by modern cultural institutions. For those proposed activities which are arguably within power, amendments have been made to expressly confirm such powers.

These functions include the power to charge fees for services provided in relation to its functions. Such services include guided tours, lectures and audio tours. They also include the Museum actively seeking to raise funds through the holding of events, acceptance of gifts, devises, bequests or assignments made to the Museum and the raising of money through sponsorships.

While the Museum has the power to accept such gifts, bequests and money from the disposal of property, devices, bequests and assignments, an amendment is proposed to empower the Museum to establish a Fund in which to deposit these funds. The clause is based on a similar provision in the National Gallery Act 1975.

An additional issue that has been addressed is the value of material for which Ministerial approval is required before disposal action can be undertaken. The value of material for which Ministerial approval is required was set at $20,000 when the Act commenced. The amendment provides for the limits to be increased to $250,000 and is consistent with the limits set in the National Library Act 1960, to better reflect current values.

A technical error has also been addressed in the amendments to ensure a correct referral to the Commonwealth Authorities and Companies Act 1997 as it relates to disclosure of pecuniary interests by the Council.

It is critical that amendments be in place before the Museum opens in March 2001. This will allow the Museum to make a smooth transition from the current arrangements into the more commercial environment in which it will operate after opening.



This Bill clarifies and improves the operation of the amendments to the Broadcasting Services Act 1992 that were made by the Broadcasting Services (Digital Television and Datacasting) Act 2000.

First, the Bill amends the enabling legislation of the Australian Broadcasting Corporation and the Special Broadcasting Service to expressly confer on these national broadcasters the function of providing datacasting services in accordance with datacasting licences allocated by the Australian Broadcasting Authority.

The digital television amendments to the Broadcasting Services Act passed by the Parliament earlier this year provided for the allocation of datacasting licences by the ABA to commercial free to air television broadcasters, the ABC and SBS and to new service providers. The amendments to the Broadcasting Services Act also provided for the ABC and SBS to be taken to have the statutory function of providing datacasting services, where they have applied for and been allocated a datacasting licence by the ABA.

It is appropriate that the statutory powers and functions of the national broadcasters be provided in their enabling legislation. This Bill therefore amends the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991 respectively to confirm that, where the ABC or SBS have applied for and been allocated a datacasting licence by the ABA, they have the statutory function of providing a datacasting service in accordance with the conditions of their datacasting licence. Existing provisions in Schedule 6 of the BSA that are made redundant by the amendments to the ABC Act and SBS Act are to be repealed. ABC and SBS datacasting services will continue to be subject to the licence conditions in Schedule 6 of the BSA.

Second, the Bill makes a number of minor amendments to the provisions of the BSA inserted by the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000.



The purpose of this Bill is to make consequential amendments to certain offence provisions in legislation administered within the Environment and Heritage portfolio. These amendments are intended to ensure that when Chapter Two of the Criminal Code Act 1995 (the Criminal Code) is applied to pre-existing portfolio offence provisions, from 15 December 2001, those provisions will continue to operate in the same manner as they operated previously. If legislation containing offence provisions were not amended in the ways proposed by this Bill, the Criminal Code may alter the interpretation of existing offence provisions. Chapter Two of the Criminal Code, which contains the General Principles of Criminal Responsibility, has been applied to new offences since 1 January 1997. It will apply to all Commonwealth offences from 15 December 2001.

Chapter Two of the Criminal Code adopts the common law approach of subjective fault based principles. It adopts the traditional distinction of dividing offences into actus reus and mens rea but uses the plainer labels of physical elements and fault elements. The general rule is that for each physical element of an offence it is necessary to prove that the defendant had the relevant fault element. The prosecution must prove every physical and fault element of an offence. The physical elements are conduct, result of conduct, and circumstances of conduct. The fault elements specified in the Code are intention, knowledge, recklessness and negligence. The default fault elements, which the Criminal Code provides, will apply where a fault element is not specified, and where the offence (or an element of the offence) is not specified to be a strict or absolute liability offence. These default fault elements are intention for a physical element of conduct, and recklessness for a physical element of circumstances or result. A fault element can only be dispensed with in relation to an offence (or in relation to a particular element of an offence) if the offence specifies that it is a strict or absolute liability offence (or that a particular element is a strict or absolute liability element). In the absence of express reference to the fact that an offence is either a strict or absolute liability offence, after the application of the Criminal Code, the offence would not be interpreted in the same way as it would before the application of the Code. In other words a court would be obliged to interpret an offence provision as a fault offence and no longer as a strict liability offence, and would require the proof of fault elements in relation to the physical elements.

I have also taken the opportunity presented by the harmonisation process to make several additional amendments that bring my portfolio's legislation more closely into accord with the Criminal Code, which is that defendants generally should bear an evidential and not a legal burden. Items 15 to 16 of the Bill change the burden of proof on the defendant in subsection 8(2) of the Antarctic Marine Living Resources Conservation Act 1981 from a legal burden to an evidential burden. Similarly items 37 to 39 of the Bill amend subsection 21A(4) of the Antarctic Treaty (Environment Protection) Act 1980 to change the current legal burden on the defendant, which is to `prove' the defence in subsection (4), to an evidential burden. These are desirable amendments because they harmonise the Acts with the Code, and they have been approved by the Prime Minister and the Minister for Justice and Customs.

This Bill amends the following Acts: the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the Antarctic Marine Living Resources Conservation Act 1981, the Antarctic Treaty (Environment Protection) Act 1980, the Environment Protection (Alligator Rivers Region) Act 1978, the Great Barrier Reef Marine Park Act 1975, the Hazardous Waste (Regulation of Exports and Imports) Act 1989, the Historic Shipwrecks Act 1976, the National Environment Protection Measures (Implementation) Act 1998, and the Ozone Protection Act 1989, the Sea Installations Act 1987, and the Wildlife Protection (Regulation of Exports and Imports) Act 1982.

I commend the Bill.

Ordered that further consideration of this bill be adjourned to the first day of the 2001 autumn sittings, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.