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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.
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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.
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
· 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.
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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.
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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.
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012
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.
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Explanatory Memorandum - National Portrait Gallery of Australia Bill 2012