2022-2023

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

creative australia (consequential AND transitional provisions) Bill 2023

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for the Arts, the Hon Tony Burke MP)

 

 

 

 

CREATIVE AUSTRALIA (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2023

 

OUTLINE

 

The Creative Australia (Consequential and Transitional Provisions) Bill 2023 (the Bill) provides for the repeal of the Australia Council Act 2013 (the AC Act) and several transitional provisions related to the establishment of Creative Australia, an expanded and modernised Australia Council, through the Creative Australia Bill 2023 (the Creative Australia Bill) to deliver commitments arising from the national cultural policy, Revive - a place for every story, story for every place.

 

Schedule 1 of the Bill provides for the repeal of the AC Act . This is the only consequential amendment in the Bill.

 

Schedule 2 makes clear the effect of the Creative Australia Bill 2023, which establishes Creative Australia by providing for the body corporate previously known as the Australia Council to continue in existence under the name Creative Australia. For the avoidance of doubt, the Bill confirms the ongoing continuation of the appointment of the Chief Executive Officer, the retention of employees and the ongoing engagement of consultants by the Australia Council under the AC Act.

 

The Bill confirms that the assets and liabilities of the Australia Council following commencement of the new law are assets and liabilities of Creative Australia. It also clarifies the effect of the Australia Council’s transition to Creative Australia on certain matters including references in instruments to the Australia Council, the effect of things done by, or in relation to, the Australia Council, and any legal proceedings.

 

The Bill outlines transitional provisions relating to appointments. All persons currently appointed to positions on the old Australia Council Board will cease to hold office at the transition time, but nothing prevents that person being appointed to an office under the Creative Australia Act. All committees established under the AC Act will cease to exist at the transition time. The Bill also dispenses with consultation provisions in relation to the appointment of new Australia Council Board members, members of the Music Australia Council and members of the Creative Workplaces Council at the time of transition.

 

The Bill makes clear that after the transition time references to the Australia Council are read as references to Creative Australia for the purposes of the Appropriation Act. It outlines reporting requirements and provides compensation for any acquisitions of property. It also provides the Minister with the power to make rules by legislative instrument if required for giving effect to matters set out in the Bill.

 

Financial impact statement

 

The Creative Australia (Consequential and Transitional Provisions) Bill 2023 is not expected to have significant impact on Commonwealth expenditure. Creative Australia will receive new funding of $199 million over the forward estimates from 2023-24 to deliver on the measures outlined in Revive .

 

Statement of Compatibility with Human Rights

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

 

Creative Australia (Consequential and Transitional Provisions) Bill 2023

 

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 .

Overview of the Bill

The Creative Australia (Consequential and Transitional Provisions) Bill 2023 provides for the repeal of the Australia Council Act 2013 (AC Act) and several transitional provisions related to the establishment of Creative Australia, an expanded and modernised Australia Council. This includes the continuation of employment terms and conditions for employees including the Chief Executive Officer, ongoing engagement of consultants who at the time of transition were engaged by the Australia Council, the transfer of assets, records and liabilities, reference to the Australia Council in instruments which were in force immediately before the transition time, the effect of things done by or in relation to the Australia Council, the treatment of any extant legal proceedings and reporting obligations.

 

Human rights implications

The Bill does not pose any limitations to human rights and is compatible with those rights. The Bill engages with the following rights:

• Right to recognise the right to work in article 6 (1) of the International Covenant on Economic, Social and Cultural Rights ( ICESCR)
• Right of everyone to the enjoyment of just and favourable conditions of work in article 7 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR)
• The right to maternity leave in article 10(2) of the ICESCR and article 11(2)(b) of the  Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• Right of all persons to take part in cultural life in article 15 of the International Convention on Economic, Social and Cultural Rights (ICESCR)

·          Right to Privacy and reputation in article 17 of the International Covenant on Civil and Political Rights (ICCPR)

Right to work and Right to maternity leave

Article 6(1) of the ICESCR recognises the right to work. Similarly, article 7 of the ICESCR recognises the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular, fair wages and equal remuneration for work of equal value without distinction of any kind.

This Bill promotes the realisation of the right to work through the continued employment of Australia Council’s Chief Executive Officer and Australia Council staff at the time of transition and, through the ongoing engagement of consultants engaged by the Australia Council at the time of transition with Creative Australia. The Bill does not limit Creative Australia employees’ work rights with regards to employment opportunities and it enables continued enjoyment of just and favourable work conditions. In particular, this right is promoted by the function under Item 2, 3 and 4 of the Bill.

The Australia Council’s Chief Executive Officer and employees will transition to Creative Australia. They will do so under the same terms and conditions as those afforded to them at the Australia Council. Furthermore, prior service at the Australia Council will be recognised for the purposes of accessing equivalent leave entitlements and without impact on employee continuity of service.

Consultants engaged by the Australia Council will continue to be engaged by Creative Australia under the same terms following the commencement of this Bill, ensuring continuity of work.

The Bill does not limit an employee’s right to maternity leave or the rights of parents in addition to entitlements under the Maternity Leave (Commonwealth Employees) Act 1973 . Likewise, an Enterprise Agreement is in place which supports material leave entitlements. 

Right to enjoy and benefit from culture and Right of all persons to take part in cultural life

Article 15 of the ICESCR recognises the right to participate in, enjoy and benefit from cultural life, and to realise this right through the development and diffusion of culture.

This Bill enables the operational transition from Australia Council to Creative Australia as effected by the Creative Australia Bill 2023. Creative Australia will continue to promote the realisation of the right to enjoy and benefit from cultural life expanding the current remit of functions and services of the Australia Council. Creative Australia will be the Government’s principal arts investment, development, funding, and advisory body with a purpose to champion and invest in arts and creativity to benefit all Australians, supporting and promoting arts practice that is recognised nationally and internationally, and providing research and advocacy on issues affecting the sector. Creative Australia will provide specialist advisory services, support and recommendations - which work to ensure Australia’s diverse arts community and heritage are provided with opportunities and support. Ultimately this benefits all audiences, fosters the careers of Australian artists and promotes the appreciation, knowledge and understanding of art.

Privacy and reputation

Article 17 of the ICCPR provides the right to the protection of the law against interference with a person’s privacy or attacks on a person’s reputation.

Creative Australia will continue to manage private and personal information pertaining to recipients of funding and support, as well as employee and consultant records, in accordance with the Privacy Act 1988 .

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights.

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.       This clause provides for the short title of the Bill. Once it is enacted, it will be cited as the Creative Australia (Consequential and Transitional Provisions) Act 2023 .

 

Clause 2: Commencement

 

2.       Subclause 2(1) 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. Any other statement in column 2 has effect according to its terms.

 

3.       Item 1 of the table in Clause 2 provides that the Bill will commence at the same time as the Creative Australia Act 2023 . However, the provisions do not commence at all if the Act does not commence.

 

4.       Clause 2 provides that any information in column 3 of the table is not part of this Bill. Information may be inserted in this column, or information in it may be edited, in any published version of this Bill.

 

Clause 3: Schedules

 

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.       Item 1 of Schedule 1 to the Bill provides the repeal of the Australia Council Act 2013.

 

7.       Schedule 2 to the Bill contains the transitional provisions.

 

8.       Part 1 of Schedule 2 of the Bill contains the specified defined terms for Schedule 2.

 

9.       Part 2 of Schedule 2 makes clear the effect of the transition to Creative Australia so as to avoid doubt about certain matters. It continues the appointment of the Chief Executive Officer and makes clear the ongoing employment of all staff and consultants currently engaged by the Australia Council. It also makes clear that assets and liabilities of the Australia Council are, from the transition time, assets and liabilities of Creative Australia. Similarly, references in instruments, things done by or in relation to the Australia Council, and any legal proceedings will continue in relation to Creative Australia.

 

10.   Part 3 of Schedule 2 provides for appointments to offices in Creative Australia, and establishes that all Board appointments at the transition time will cease and committees will cease to exist. It also allows that at the time of transition, the appointment of new Australia Council Board members and members to the Music Australia Council and the Creative Workplaces Council by the Minister does not require consultation.

 

11.   Part 4 of Schedule 2 addresses reporting and finance, it states that references to the Australia Council in an Appropriation Act will be read as references to Creative Australia and provides for reporting obligations through the transition.

 

12.   Part 5 of Schedule 2 covers miscellaneous matters including compensation for the acquisition of property and the making of rules in relation to the transition by the Minister.

 

SCHEDULE 1 - Amendments

 

Schedule 1 of the Bill provides for the repeal of the Australia Council Act 2013. There are no other consequential amendments to other Acts required.

Item 1- Repeals

 

13.   This item repeals the Australia Council Act 2013. The Australia Council is to cease to exist under this Act upon the establishment of Creative Australia, but will continue in existence as a body corporate under and subject to the Creative Australia Bill 2023.

 

SCHEDULE 2 - Transitional provisions

 

Part 1 - Preliminary

 

Item 1 - Definitions

14.   Item 1 contains definitions for the purposes of Schedule 2.

15.   The term Appropriation Act means an Act appropriating money for expenditure from the Consolidated Revenue Fund.

16.   The term asset is defined covering two classes: any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and any right, power, privilege or immunity, whether actual, contingent or prospective.

17.   The term Australia Council means the body corporate continued in existence by section 7 of the AC Act under the name the Australia Council.

 

18.   The term Creative Australia means the body corporate continued in existence by section 7 of the new Act under the name ‘Creative Australia’.

 

19.   For the purposes of the Schedule, the term, instrument has been inclusively defined to include a contract, deed, undertaking, arrangement or agreement; and a notice, authority, order or instruction; and an instrument made under an Act or regulation.

 

20.   The term liability has been defined to cover any liability, duty or obligation, whether actual, contingent or prospective.

 

21.   The term new Act means the Creative Australia Act 2023.

 

22.   The term New Board means the Board established under clause 19 of the new Act (being the Creative Australia Bill 2023), once enacted.

 

23.   The term old Act means the Australia Council Act 2013, as in force immediately before the transition time.

 

24.   The term old Board means the Board of the Australia Council established under section 14 of the old Act.

 

25.   A key term, transition time means the time of commencement of Schedule 2 to this Bill (refer clause 2).

 

Part 2 - Effect of transition to Creative Australia

Item 2 - Object

26.   Item 2 explains the objective of Part 2 of the Bill, which is to avoid all doubt about the effect of continuing the existence of the body corporate which was formerly known as the Australia Council and is now known as Creative Australia on a variety of matters.

 

Item 3 - Appointment of CEO

27.   Item 3 provides for the continuation of the appointment of the Chief Executive Officer of the Australia Council with Creative Australia for the balance of that person’s term of appointment on the same terms and conditions of that appointment. The terms and conditions can be varied after the transition time.

 

 Item 4 - Employees of the Australia Council

28.   Item 3 provides for continuity of employment for the employees of existing Australia Council employees, and their employment terms and conditions. The effect of Item 3 is that all employees of the Australia Council engaged under section 43 of the AC Act and employed immediately prior to the transition time continue as employees of Creative Australia and are taken to have been engaged under section 74 of the Creative Australia Act 2023 on the prior terms and conditions .

 

Item 5 - Consultants to the Australia Council

29.   This item provides for the ongoing engagement of consultants engaged immediately prior to the transition time by the Australia Council under section 44 of the AC Act. All such engagements are taken, from the transition time to be engagements by Creative Australia under section 75 of the Creative Australia Act 2023 on the prior terms and conditions.

 

Item 6 - Assets and liabilities of the Australia Council

 

30.   Item 6 provides that the transfer of the assets and liabilities of the Australia Council immediately before the transition time continue, after that time, to be the assets and liabilities of Creative Australia. There will be no need for any conveyance, transfer or assignment as there is no abolition of the legal entity.

 

Item 7 - References in instruments to the Australia Council

 

31.   Item 7 provides that all instruments that are in force immediately before the transition time and contain a reference to the Australia Council remain in force and references are taken to be references to Creative Australia This item does not prevent the instrument from being amended or repealed after the transition time.

 

Item 8 - Effect of things done by, or in relation to, the Australia Council

 

32.   This item makes clear that if a thing was done by, or in relation to, the Australia Council under the Australia Council Act 2013, then the thing done will be taken to have effect, after the transition time, of having been done by, or in relation to Creative Australia. The rules may provide that this does not apply in relation to a specified thing done by or in relation to the Australia Council.

 

Item 9 - Legal proceedings

33.   Item 9 provides that where the Australia Council was a party to proceedings (or pending proceedings) in any court or tribunal immediately before the transition time, then Creative Australia will be party to those proceedings after the transition time.

 

Part 3 - Appointments

Item 10 - Cessation of appointments of old Board members

 

34.   Item 10 provides that all persons who hold office as a member of the old Board immediately prior to the transition time, will cease to hold that office at the transition time. All such persons may be appointed to an office under the new Act. This does not apply to the Chief Executive Officer of the Australia Council.

Item 11 - Committees cease to exist

35.   All committees established under section 31 of the old Act and in existence immediately before the transition time will cease to exist at the transition time.

Item 12 - Consultation for new appointments

36.   Item 12 establishes that, at the transition time, the appointment of new Board members by the Minister does not require consultation with the Chair of the Australia Council Board. Similarly, the appointment of persons to the Music Australia Council does not require consultation with the Chair of the Music Australia Council, and the appointment of persons to the Creative Workplaces Council does not require consultation with the Chair of the Creative Workplaces Council. These provisions facilitate the expeditious appointment of Board and Council members by the Minister to enable a smooth transition to Creative Australia and prevent business disruption, and the disruption of funding and services to artists, arts workers and organisations and the sector.

 

Part 4 - Reporting and finance

Item 13 - Transfer of appropriated money

37.   Item 13 states that all references to the Australia Council in an Appropriation Act after the transition time, will be read as references to Creative Australia. This provision ensures there are no issues with Creative Australia receiving government funds.

Item 14 - Annual reports for financial year ended before transition time

38.   If the annual reporting obligation for the year commencing 1 July 2022 and ending 1 July 2023 under section 51 of the AC Act is not fulfilled before the transition time, Item 14 still requires the new Board to prepare the annual report for that financial year in accordance with the Australia Council Act 2013.

Item 15 - Annual reports for financial year in which transition time occurs

39.   If the transition time occurs part way through a new financial year, Item 15 requires that the first annual report prepared by the new Board under section 77 of the Creative Australia Act 2023 must cover any matters that would have been covered by the annual report referred to in section 51 of the AC Act.

 

Part 5 - Miscellaneous

 

Item 16 - Compensation for acquisition of property

 

40.   Subitem 16(1) provides that if the operation of the Bill would result in an acquisition of property from a person otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution) the Commonwealth is liable to pay a reasonable amount of compensation to the person.

41.   Subitem 16(2) provides that if agreement cannot be reached on the amount of compensation, the person may take action in the Federal Court the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.

Item 17 - Rules

 

42.   Item 17 creates a rule-making power that would permit the Minister to make transitional rules via a legislative instrument, where required to implement of this Bill.

43.   While every effort has been taken to ensure the comprehensiveness of this Bill and plan the details of the transition to Creative Australia, it is prudent to provide a means for a rule to be issued quickly should relevant circumstances emerge. The power is limited to making rules for matters of a transitional nature, including prescribing any saving or application provisions relating to the repeal made by the Bill or the enactment of this Bill or the Creative Australia Bill 2023.This new rule-making power is not designed to undermine Parliament’s legislative responsibility. Any such rules would be made in the form of legislative instruments, for the purposes of the Legislation Act 2003, and subject to the scrutiny of Parliament and motions of disallowance.