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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIA COUNCIL AMENDMENT (CREATIVE AUSTRALIA) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Arts, the Hon Tony Burke MP)
AUSTRALIA COUNCIL AMENDMENT (CREATIVE AUSTRALIA) BILL 2023
OUTLINE
The purpose of the Australia Council Amendment (Creative Australia) Bill 2023 (the Bill) is
to amend the Australia Council Act 2013 (the Act) to give effect to elements of the National
Cultural Policy that are required to be in place by 1 July 2023, to modernise various
provisions of the Act, and to support the implementation of the Australian Government
decision to transfer the functions of Creative Partnerships Australia Ltd (Creative
Partnerships) to the Australia Council (the Council).
The Bill outlines a number of initial measures to support the implementation of the National
Cultural Policy. This includes provisions to confirm that the Council may operate under the
name "Creative Australia", and to enable the Council to deliver the Centre for Arts and
Entertainment Workplaces and Music Australia functions under its expanded remit.
The Bill modernises the provisions of the Act relating to constitutional limitations, including a
provision allowing the Council to provide financial assistance to constitutional corporations.
The amendments will also provide clear authority for the Council to deliver the functions of
Creative Partnerships, to attract and recognise public and private sector support for and
philanthropic and private investment in the arts, and undertake research on public and private
sector investment in the same.
The Bill outlines transitional provisions to guide the transfer of functions from Creative
Partnerships to the Council, including the transfer of assets, liabilities, records and staff
entitlements and the deregistration of Creative Partnerships.
The Bill also outlines the consequential amendments required to the Income Tax Assessment
Act 1997 to remove Creative Partnerships as a Deductible Gift Recipient managing the
Australian Cultural Fund.
Creative Partnerships will be abolished along with the transfer of its existing functions to the
Council.
These amendments align with Government policy objectives to improve the quality of
Commonwealth investment and streamline access to support for the arts.
The Bill contributes to the implementation of the National Cultural Policy and, in doing so,
strengthens the support provided to creative and cultural practitioners and organisations.
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Financial impact statement
To deliver the National Cultural Policy, a total of $199 million in new funding will be made
available to the Australia Council over the forward estimates from 2023-24. This includes
funding for the Council to deliver on these expanded functions provided for within this Bill.
Funding currently allocated to the operations of Creative Partnerships of $15.2 million over
three years from 2023-24 and $5 million ongoing and indexed from 2026-27, will be provided
to the Australia Council to fulfil Creative Partnerships' functions on an ongoing basis.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australia Council Amendment (Creative Australia) 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 Australia Council Amendment (Creative Australia) Bill 2023 (the Bill) amends the
Australia Council Act 2013 to support the implementation of the Australian Government's
National Cultural Policy. The Bill includes initial measures as agreed to under the
Government's National Cultural Policy, including confirming that the Australia Council (the
Council) may operate under the name "Creative Australia".
The Bill makes amendments to modernise the constitutional limitations provisions of the Act,
including a provision allowing the Council to provide financial assistance to constitutional
corporations.
The Bill also supports the Australian Government's decision to transfer the functions of
Creative Partnerships Australia Ltd (Creative Partnerships) by providing clear authority for
the Council to deliver the functions of Creative Partnerships.
The amendments will provide the Council with additional functions to attract, recognise and
undertake research on public sector, private sector, philanthropic and commercial support for,
and investment in, the arts. These new functions will facilitate coordinated and integrated
support for the sector by streamlining access to public, private, philanthropic and commercial
investment for the arts.
The Bill includes transitional provisions to guide the transfer of functions and ensure
continuity of business between Creative Partnerships and the Council. These provisions will
ensure that employees of Creative Partnerships, at the time of transfer, will be taken to be
Council employees and receive equivalent accrued entitlement to benefits.
The Bill contributes to the implementation of the National Cultural Policy and, in doing so,
strengthens the support provided to creative and cultural practitioners and organisations. It
also aligns with Government policy objectives to improve the quality of Commonwealth
investment and streamline access to support.
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 enjoy and benefit from culture in article 27 of the International Covenant on
Civil and Political Rights (ICCPR);
Right of all persons to take part in cultural life in article 15 of the International
Convention on Economic, Social and Cultural Rights (ICESCR); and
Right to work in article 6 of the ICESCR
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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)
Privacy and reputation in article 17 of the ICCPR.
Right to enjoy and benefit from culture and Right of all persons to take part in cultural life
Article 27 of the ICCPR and Article 15 of the ICESCR recognise the right to participate in,
enjoy and benefit from cultural life. The Bill promotes the realisation of this right by
supporting the financial sustainability of artists and arts organisations and their capacity to
deliver a wide range of cultural opportunities and experiences for the benefit of all audiences.
The right to take part in the creation and enjoyment of culture, in all forms, is promoted
through the Council's functions under section 9 of the Act. These functions have been
expanded by this Bill, to enable the Council to assume responsibility to encourage and receive
philanthropic giving to, and investment in, the arts, promote safe workplaces for Australian
artists and provide advice, training and mentoring on arts related matters. The Council's
research and publishing functions have been expanded to include arts support and investment.
The powers provided by the Bill will enable the Council to increase funding for and financial
sustainability of the arts through non-government sources of funding, for the long-term
benefit and enrichment of artists, arts organisations and their audiences and their employees.
Right to work and Right to maternity leave
Article 6 of the ICESCR recognises the right to work. The Bill promotes the realisation of the
right to work by encouraging, facilitating and recognising public and private sector support
for, and investment in, the arts, which provides important employment opportunities for
artists and arts organisations' staff.
The Bill does not limit Creative Partnerships employees' work rights, the right to maternity
leave or the rights of parents, which are compatible with the relevant instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Following the transfer of functions, Creative Partnerships employees (except the CEO) will
transition to the Council. The Council Enterprise Agreement ensures compatible work rights
for the relevant instruments, as legislated under the Fair Work Act 2009. As Creative
Partnerships employees will be taken to be Council employees, any prior service at Creative
Partnerships will be recognised for the purposes of accessing equivalent maternity leave
entitlements. As Council employees, they will be eligible for entitlements which provide for
both paid parental leave entitlements, in addition to entitlements under the Maternity Leave
(Commonwealth Employees) Act 1973.
Similarly, the Council Enterprise Agreement ensures the rights of parents are compatible, as
the carers and adoption leave entitlements comply with the Fair Work Act 2009.
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. In transferring the functions of
Creative Partnerships to the Council, the Bill will transfer all records, documents, assets and
liabilities including the Australian Cultural Fund. To fulfil the requirements of the
philanthropic functions of Creative Partnerships, records include private and personal
information about artists and donors. The Council is well equipped to manage this
information, which it already does in its day-to-day operations, in accordance with the
Privacy Act 1988.
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The Bill provides the Minister with the power to make, by legislative instrument, transitional
rules relating to the transfer of functions from Creative Partnerships to the Council, and
prescribing matters necessary or convenient for carrying out or giving effect to the Bill.
Although the Council must already comply with the Privacy Act 1988 and continue to do so
following the transition of functions, if necessary this rule-making power could be used to
enhance protections for the handling and use of personal information, as part of the transfer of
functions.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights.
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AUSTRALIA COUNCIL AMENDMENT (CREATIVE AUSTRALIA) BILL 2023
NOTES ON CLAUSES
Clause 1 - Short Title
1. Clause 1 provides that the Bill, when enacted, may be cited as the Australia Council
Amendment (Creative Australia) Act 2023.
Clause 2 - Commencement
2. Clause 2 provides for sections 1 to 3 of the Act, and anything in the Act not covered
elsewhere in the table in Clause 2, to commence on the day the Act receives the Royal
Assent. Clause 2 provides for Schedules 1 and 2 to the Act to commence on 1 July 2023 if
the Act receives the Royal Assent before 1 July 2023. If the Act receives the Royal Assent
on or after 1 July 2023, clause 2 provides that the Act will commence on a single day to
be fixed by Proclamation. However, if the provisions do not commence within the period
of 6 months beginning on the day the Act receives the Royal Assent, they commence on
the day after the end of that period.
Clause 3 - Schedules
3. Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in that Schedule, and any other item in a
Schedule has effect according to its terms. There are two Schedules to the Bill.
SCHEDULE 1 - Amendments
Schedule 1 introduces amendments to the enabling legislation for the Australia Council (the
Council), the Australia Council Act 2013 (the Act), to permit the transfer of functions
currently undertaken by Creative Partnerships Australia Ltd (ACN 072 479 835) (Creative
Partnerships) and enable the Council to deliver the expanded functions of the Council under
the Government's National Cultural Policy. It clarifies the constitutional basis for the Act, and
confirms that the Council may operate under the name 'Creative Australia', in addition to the
Australia Council. Schedule 1 also removes reference to Creative Partnerships in the Income
Tax Assessment Act 1997, in relation to its current deductible gift recipient status.
Item 1- Section 4
4. This item adds a definition for 'constitutional corporation' which relates to new sections 6
and 6A. The term means a corporation to which paragraph 51(xx) of the Constitution
applies.
Item 2 - Section 6 and Section 6A
5. This item updates the constitutional basis for the Act. The drafting of this constitutional
limitation provision has been made more robust and consistent with more recent
Commonwealth legislation. The new drafting is not intended to have any material impact
on the activities of the Council is already undertaking or entities which the Council is
currently supporting.
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6. The item replaces the current section 6 and inserts a new of provisions (section 6 and 6A),
to clarify that the Council can only perform its functions within the constitutional bases
stated in this section.
7. New subsection 6(2) provides that the implied nationhood power is the main
constitutional basis for the Council's functions, here being the implied power of the
Parliament to make laws with respect to activities that are peculiarly adapted to the
government of a nation. This includes the Council's functions of implementing national
initiatives in the arts as provided for in the amended section 9 of the Act.
8. New subsection 6(3) modernises the language used in the current provision, and adds
reference to additional constitutional bases that are now relevant to the Council's
expanded functions. Changes from the current Act include, notably: new paragraph
6(3)(g), which clarifies the previous constitutional basis as being limited to support for
Aboriginal and Torres Strait Islander arts practice; new paragraph 6(3)(h), which provides
for the communications power as a constitutional basis; and new paragraph 6(3)(i), which
invokes the benefit to students' power.
9. New subsection 6(4) provides that terms used in new section 6 have the same meaning as
those terms used in the Constitution.
10. New subsection 6A(1) also reflects modernised drafting and is additional to the
constitutional provisions under current paragraph 6(3)(a). The provision will more clearly
ensure that constitutional corporations have the right to apply to the Australia Council for
financial assistance that is available under the Act. Subsection 6A(2) imposes an
obligation on the Council to consider applications received for financial assistance from
constitutional corporations within a reasonable period. Subsection 6A(3) limits the class
of constitutional corporations to whom the Council may provide financial assistance to
corporations that have actually applied for to the Council for financial assistance under
subsection 6A(1).
Item 3 - at the end of Section 7
11. Item 3 confirms that the Council may operate as either the Australia Council or under the
name "Creative Australia".
Item 4 - after paragraph 9(1)(e)
12. Item 4 adds additional functions of the Council after paragraph 9(1)(e). New paragraph
9(1)(ea) provides that the Council may assume responsibility for encouraging, facilitating
and recognising public sector, private sector, philanthropic and commercial support for,
and investment in, the arts. This will enable the Council to undertake the functions
previously delivered by Creative Partnerships.
13. New paragraph 9(1)(eb) allows for the Council to undertake activities that relate to
promoting safe workplaces for Australian artists and workers in organisations that engage
in or support Australian arts practice. This will enable the Council to deliver the new
Centre for Arts and Entertainment Workplaces, agreed as part of the Government's
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National Cultural Policy, and which will provide advisory and support services on issues
of pay, safety and welfare across the arts sector.
14. New paragraph 9(1)(ec) adds a function for the Council to be able to provide advice,
training and mentoring on matters connected with the arts or the performance of its
functions. This enables the Council to deliver the expanded functions of the Council under
the Government's National Cultural Policy including Music Australia, Writers Australia
and a First Nations body.
Item 5 - at the end of paragraph 9(1)(g)
15. Item 5 expands the research function of the Council to include the topics of arts support
and investment and the publishing of such research to benefit Australian cultural and
creative practitioners.
Item 6 - Income Tax Assessment Act 1997
16. Item 6 reflects a consequential amendment to the Income Tax Assessment Act 1997
(ITAA) to remove the specific mention of "Creative Partnerships Australia Ltd" as a tax
deductible gift recipient under subsection 30-100(2), table item 12.2.2 in the ITAA. This
amendment is necessary as Creative Partnerships will cease to deliver relevant services
and functions once the Council has taken over its functions and assets.
17. Donations over $2 made to the Australian Cultural Fund (which will be operated by the
Council) following the transition will remain tax deductible gifts as the Council is an
Australian government agency and the fund will be listed on the Register of Cultural
Organisations.
Item 7 - Income Tax Assessment Act 1997
18. Item 7 would update the index of tax deductible gift recipients to remove Creative
Partnerships at subsection 30-315(2) (table item 40AA). This item is consequential to the
amendment at Item 6.
SCHEDULE 2 - Transitional Provisions
Item 1 - Definitions
19. Item 1 provides definitions for key terms used in Schedule 2.
20. The term, 'reporting period' is defined as having the same meaning as in the Public
Governance, Performance and Accountability Act 2013 (PGPA Act) (namely, (a) the
period of 12 months commencing on 1 July; or any other period prescribed by an Act or
the rules for the entity, company or subsidiary.
21. The term 'responsible Minister' has the same meaning as in the PGPA Act and in this
context means the Arts Minister. The concept of 'rules' covers the rules made by the
Minister under item 14 of Schedule 2.
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22. A central term used in the Schedule 2 is 'transition time' which means the commencement
of Schedule 1. In substance, this reflects the time when the Council may commence
conducting the functions previously undertaken by Creative Partnerships.
Item 2 - Creative Partnerships Australia ceases to exist
23. Creative Partnerships Australia will cease to exist as a legal entity at the transition time
(subitem 2(1)), and will be taken to be deregistered for the purposes of the Corporations
Act 2001 at the transition time (subitem 2(2)).
Item 3 - Things done by, or in relation to, Creative Partnerships Australia
24. Subitem 3(1) provides that any activities undertaken by, or in relation to, Creative
Partnerships prior to the transition time (being when Schedule 1 commences) will be
deemed after the transition time, to be undertaken by, or in relation to the Council.
Subitem 3 (2) provides that rules made under Item 14 may disapply subitem 3(1). This
provision is incorporated should there be any matters done by or in relation to Creative
Partnerships which would not be appropriate to carry over to the Australia Council.
Item 4 - Transfer of records and documents
25. Item 4 provides that any records or documents that were in the custody of Creative
Partnerships immediately before the transition time are transferred to the custody of the
Council.
Item 5 - References in instruments
26. Subitems 5(1) and (2) ensure all instruments that are in force immediately before the
transition time that reference "Creative Partnerships Australia", continue to have effect
after the transition time. Any reference to "Creative Partnerships Australia" would,
following the transition time, be considered a reference to "Australia Council". Subitem
5(3) provides that item 5 does not prevent the particular instrument from being amended
or repealed after the transition time, and subitem 5(2) clarifies that rules made under item
14 may provide that subitem 5(2) does not apply in relation to a specified reference or
instrument.
Item 6 - Legal Proceedings
27. Item 6 provides for the substitution of the Council for Creative Partnerships as a party to
any legal proceedings that were pending in any court or tribunal immediately before the
transition time.
Item 7 - Assets and liabilities of Creative Partnerships Australia
28. The effect of Item 7 is that on the transition time, all assets and liabilities of Creative
Partnerships will automatically become the assets of the Council without the need for any
conveyance, transfer or assignment. This includes the Australian Cultural Fund as well as
any asset held in trust by Creative Partnerships. If an asset held in trust by Creative
Partnerships transfers to the Council, that asset will continue, at and after the transition
time, to be held by the Australia Council on trust and subject to the terms of the trust.
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Item 8 - The Australian Cultural Fund
29. Item 8 limits the use of all money standing to the credit of the Australian Cultural Fund
following its transition to the Council. These funds would only be able to be used by the
Council for a purpose for which it could be applied to immediately prior to the transition
time. This preserves the intended function of the Australian Cultural Fund.
Item 9 - Exemption from stamp duty and other State or Territory taxes
30. Item 9 provides an exemption from stamp duty and other taxes payable under State or
Territory law in respect of any "exempt matter" (defined in subitem 9(2) which in effect
covers the transfer of all assets and liabilities from Creative Partnerships to the Council
under Schedule 2 to the Bill, or the operation of that Schedule in any other respect. The
Minister may certify in writing that a specified matter is an exempt matter or that a
specified thing was connected with a specified exempt matter. In all courts, and for all
purposes, the Minister's certificate would be prima facie evidence of the matters stated in
it. This item ensures no additional taxation is applied in connection with the transfer of
assets or liabilities occurring in the transition process.
Item 10 - Creative Partnerships Australia employees
31. Item 10 sets out a transitional rule in relation to the employees of Creative Partnerships. In
transferring Creative Partnership's functions to the Council, it is intended that all persons
who were employees of Creative Partnership immediately before the transition time will
transfer to the Council to ensure continuity and transfer of knowledge. At the transition
time, staff employed by Creative Partnerships cease to be employed by Creative
Partnerships and are taken to have been employed by the Council under subsection 43(1)
of the Australia Council Act 2013.
32. For all purposes, each transferring employee will be considered to have accrued
entitlements at the Council that are equivalent to what they had at Creative Partnerships,
immediately before the transition time (subitem 10(3)). Employment at the Council will
also be taken as continuous with the person's service as an employee at Creative
Partnerships (subitem 10(4)). Subitem 10(5) clarifies that these provisions do not apply to
a director of Creative Partnerships, or the Chief Executive Officer of Creative
Partnerships.
Item 11 - No payment as a result of transfer
33. Item 11 makes clear that persons who cease to be employees of Creative Partnerships as a
result of the transfer of functions (given effect to by Schedule 2) have no further
entitlement to receive any payment or other benefit merely because the person stopped
being such an employee.
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Item 12 - Final annual report
34. Subitem 12(1) provides for when the item (dealing with the final annual report for
Creative Partnerships) applies. Should the transition time occur at the end of, or after the
end of, a 'reporting period' (ie the period of 12 months commencing on 1 July) and
Creative Partnerships' directors has not supplied the final annual report, then pursuant to
item 12(2), the Council must instead prepare this report in accordance with section 97 of
the PGPA Act and supply it to the responsible Minister as soon as practicable after the
transition time.
Item 13 - Compensation for acquisition of property
35. Subitem 13(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. Subitem 13(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 14 - Transitional rules
36. This item creates a rule-making power which would permit the Minister to make
transitional rules via legislative instrument, that may be required to complete the transfer
of the functions and responsibilities of Creative Partnerships to the Council. While every
effort has been taken to ensure the comprehensiveness of this Bill and to plan for the
details of the transition, 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 that relate to the transfer of functions and would not be used to make
longer term or more substantial rules. Subitem 14(3) prescribes what the rules may not do
and further emphasises the transitional nature of the rules that may be made under this
item. 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, and
subject to the scrutiny of Parliament and motions of disallowance.
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