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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SCREEN AUSTRALIA BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment, Heritage and the Arts,
the Hon. Peter Garrett AM MP)
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SCREEN AUSTRALIA BILL 2008
OUTLINE
The Screen Australia Bill (`the Bill') provides for the establishment of Screen Australia
(`SA'). SA would replace the Australian Film Commission (`AFC') (with the exception
of the National Film and Sound Archive (NFSA) function and certain functions which are
to be transferred to the Australian Film, Television and Radio School (AFTRS)), the Film
Finance Corporation Australia Limited (`FFC') and Film Australia Limited (`FAL'). SA
would also carry out additional functions in relation to the support and promotion of
Australian film and the provision of tax incentives to film producers under the Income
Tax Assessment Act 1997.
The Bill establishes SA as a body corporate with a Board consisting of a Chair, a Deputy
Chair and between three and seven other members. SA's staff will comprise a CEO (who
is not to be a member of the Board), persons engaged under the Public Service Act 1999
and persons engaged under this Bill when enacted.
SA will be subject to the Commonwealth Authorities and Companies Act 1997 (the CAC
Act).
FINANCIAL IMPACT STATEMENT
The Screen Australia Bill 2008 is not expected to have a significant impact on
Commonwealth expenditure.
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ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
AFC Australian Film Commission
AFC Act Australian Film Commission Act 1975
AFTRS Australian Film, Television and Radio School
Bill Screen Australia Bill 2008
CAC Act Commonwealth Authorities and Companies Act 1997
CEO Chief Executive Officer
FAL Film Australia Limited
FFC Film Finance Corporation Australia Limited
Minister Minister for the Environment, Heritage and the Arts
NFSA National Film and Sound Archive
SA Screen Australia
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NOTES ON CLAUSES
Part 1 - Introduction
Clause 1 - Short title
The Bill, when enacted, should be cited as the Screen Australia Act 2008.
Clause 2 - Commencement
Item 1 of the table in subclause 2(1) provides that clause 1 (Short title), clause 2
(Commencement) and any other clause of the Bill not provided for is to commence on
Royal Assent.
Item 2 of the table provides that clauses 3 to 45 are to commence on a date to be fixed by
Proclamation or on the day after six months has elapsed since Royal Assent, whichever is
the sooner.
Delayed commencement of the Bill will enable transitional issues to be finalised prior to
the establishment of SA.
Clause 3 - Definitions
Clause 3 sets out definitions of key terms used in the Bill. Some of the more significant
definitions are:
· "Australian Program", which includes programs which, in the opinion of SA, have or
will have a significant Australian content. Significant Australian content could be
determined by:
o the subject matter of the film;
o the place where the film is made;
o the nationalities and places of residence of the persons who took part in
the making of the film (including producers, directors, authors,
scriptwriters, composers, actors, editors, directors of photography,
production designers and other film technicians);
o the details of production expenditure incurred in respect of the film; and
o other matters that Screen Australia considers relevant.
The expression `will have a significant Australian content' extends the definition to
programs which have not been completed, including incomplete programs which do
not yet have significant Australian content but which SA believes will in future have
significant Australian content. SA is an authority of the Commonwealth for the
purposes of paragraph (b) of this definition.
· "Program", which is intended to have a broad meaning. The main focus of SA's
activities in relation to programs is expected to be screen productions in the form of
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audiovisual films for cinema release, television productions and other platforms
including the internet and other digital media. The definition in paragraph (b) could
include, for example, a soundtrack for a silent movie or the production of new sounds
for an old film. It is not intended to encompass sound recordings which have no
connection to screen productions as outlined above.
The definition also extends to programs broadcast, streamed or otherwise distributed
without first being stored in a permanent form, including live television broadcasts
and live Internet streaming. It is not intended to encompass direct support for live
productions (for instance theatre or music performances) purely because they are
being filmed, although support more directly relating to the transmission, broadcast
or reception of such productions could be provided. The word `distribution' in
paragraph (c) is intended to take on a broad meaning and includes dissemination of
films and other programs for public release.
· "Screen production", which is intended to have a broad meaning and encompass all
programs capable of being displayed on a screen.
Clause 4 - Extended geographic application of this Act
The Bill will extend to every external territory. The Bill would also apply outside
Australia in order to allow SA to engage in activities overseas. For example, in
performing its function of engaging in the promotion of Australian programs
(subparagraph 6(1)(b)(i)) SA may use facilities at an overseas film festival to promote
Australian films.
Part 2 - Screen Australia
Clause 5 - Establishment
SA is established as a body corporate with a seal. The CAC Act applies to SA.
Clause 6 - Functions
This clause sets out SA's functions and how it may perform them. SA will have a strong
cultural focus to its activities in recognition of the strong public value of Australian-made
films, television and other screen content. It will be expected to nurture Australian
creative and technical expertise as well as recognising the importance of building a
sustainable industry base comprising viable screen businesses. This is because a strong
industry base is essential to deliver strong cultural outcomes.
Examples of ways that SA could carry out its functions include:
· supporting and promoting the development of a commercially sustainable Australian
screen production industry by developing filmmakers' skills through providing
assistance to filmmakers and their projects, for example, business skills workshops
(paragraph 6(1)(a));
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· engaging in the promotion of Australian films by marketing them at film festivals and
markets in other countries and supporting filmmakers to attend festivals and industry
markets and trade shows (subparagraph 6(1)(b)(i));
· engaging directly in the development and production of Australian films, such as the
National Interest Program documentaries previously produced by FAL (subparagraph
6(1)(b)(i));
· supporting the development and production of Australian films by providing finance
and other support to producers of Australian films which might include providing
loans, guarantees, grants or investment (subparagraph 6(1)(b)(i));
· exhibiting, or making available to others for exhibition, Australian or other programs
(subparagraph 6(1)(b)(ii)); and
· promoting the development of screen culture in Australia by supporting film festivals
involving Australian programs or other programs (paragraph 6(1)(c)).
SA will also administer the Producer Offset as provided in the Income Tax Assessment
Act 1997 (paragraph 6(1)(d)).
`Screen culture', as referred to in paragraph 6(1)(c), includes the environment in which
film and other screen content is conceived, developed, made, seen, discussed and
analysed. It is an umbrella term which includes opportunities for the public to consume,
appreciate and engage with diverse screen activities. Screen culture broadly refers to
many different screen based activities including production, screenings, film festivals,
industry awards, conferences, seminars, professional development, exhibition,
distribution, publications, websites, libraries, commentary and critical analysis.
The primary intent of screen culture is audience development, so as to increase public
appreciation, debate, recognition and knowledge of film and television and the screen
industry more generally.
Examples of ways SA could provide support include:
· providing non-commercial financial assistance through a grants process to producers
of Australian films (paragraph 6(2)(a));
· investing in or providing loans to producers of Australian films on an arms-length,
commercial basis (paragraph 6(2)(a));
· providing guarantees to assist the producers of Australian films in obtaining finance
(paragraph 6(2)(b));
· commissioning a person to support or promote the development, production,
promotion and distribution of Australian programs (paragraph 6(2)(c));
· commissioning a person to make a specific film (paragraph 6(2)(c));
· providing financial assistance to a film festival, whether showing Australian
programs or otherwise, through a sponsorship arrangement (paragraph 6(2)(c)); and
· providing film-making facilities and sound recording studios to producers of
Australian films and recordings (paragraph 6(2)(d)).
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Subclause 6(3) sets out particular areas of priority for SA in performing its functions. As
outlined above, the agency will have a strong cultural focus and the ability to respond to
the commercial environment for films. For example:
· some areas of production are valuable for reasons such as education, stimulation of
debate and recording Australian life and culture, but may not generate commercial
returns and/or large audiences (e.g. children's TV and documentaries). It is expected
that SA will pay particular attention to support for these types of production
(paragraph 6(3)(a) and subparagraphs 6(3)(b)(i) and (ii));
· it is important that SA have a particular focus on programs with a high level of
artistic and cultural merit (subparagraph 6(3)(b)(iii));
· strong audience appeal is a generator of increased support from the private sector and
it is important that producers seek to maximise their returns from private investment
to ensure best value for the expenditure of public funds by SA. It is expected that SA
will seek to maximise its ability to deliver cultural outcomes through encouraging
greater use of the private sector by productions with commercial potential, especially
given the recently introduced Producer Offset (subparagraph 6(3)(c)); and
· public resources should be used responsibly to promote outcomes which benefit as
wide a cross section of the population as possible, including avoiding duplication
with activities undertaken by other areas of Government (subparagraph 6(3)(e)).
Subclause 6(4) provides for SA to charge fees, for example for admission to public
exhibitions of films exhibited under subparagraph 6(1)(b)(ii), application fees for loans
and charges for skills development workshops.
Subclause 6(5) provides for SA to enter into joint ventures or other arrangements directed
towards the performance of the functions of SA. It is expected that particular attention
will be paid to effective and efficient collaboration with other Commonwealth agencies
such as AFTRS or the NFSA, as well as State government agencies responsible for
support for the screen industry.
Subclause 6(6) invokes certain heads of Commonwealth constitutional power in relation
to SA's powers and functions to ensure the legislation would continue to have effect if
the powers and functions of SA were confined to those constitutional powers.
Clause 7 - Powers
SA will have the power to do all things necessary or convenient to be done for or in
connection with the performance of its functions as described in clause 6.
For the avoidance of doubt, subclause 7(2) contains a non-exhaustive list of specific
powers of SA. These include the power to:
· accept various forms of gifts, whether on trust or otherwise. This recognises that
SA's role as a centre for creative production will involve it receiving gifts from time
to time (paragraph 7(2)(a));
· act as trustee of various forms of property vested in SA on trust (paragraph 7(2)(b));
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· act on behalf of the Commonwealth or an authority of the Commonwealth in the
administration of a trust relating to programs or matters connected with programs
(paragraph 7(2)(c)). This and paragraph 7(2)(b) recognise that some programs or
matters connected with programs may be created or administered through trust
arrangements;
· with the written approval of the Minister, form or participate in the formation of
companies (subparagraph 7(2)(d)(i)) and acquire, hold and dispose of capital in
companies (subparagraph 7(2)(d)(ii)). As SA operates to some extent in a
commercial environment in its dealings with the film and television industry, there
may be a need to form a company or otherwise behave in a quasi commercial manner
in order to effectively leverage funding from other sources. However, the Minister's
approval is required to ensure that such actions are fully justified and because it is
important that they not impact on the core funding and activities of the agency.
The approval of the Minister under this paragraph would not be a legislative
instrument, by virtue of the existing exemption under item 2 of Part 1 of Schedule 1
to the Legislative Instruments Regulations 2004.
· do anything incidental to the performance of any of its functions (paragraph 7(2)(e)).
Subclause 7(3) provides that despite anything contained in the Bill or the CAC Act, any
money, programs or other property held by SA on trust must be dealt with in accordance
with the obligations of SA as trustee of the trust.
Part 3 - The Board of Screen Australia
Division 1 - The Board
Clause 8 - Establishment
This clause establishes the Board of SA.
Clause 9 - Role
This clause sets out the role of the Board. Subclause 9(1) provides that the Board is
responsible for the proper and efficient performance of SA's functions. SA acts through
the Board, which has the capacity to conduct the ordinary business of a board, including
setting policies, procedures and directions for the agency.
Subclause 9(2) provides that the Board has power to do all things necessary or
convenient to be done for or in connection with the performance of its duties. In this
regard, the Board is also able to authorise the CEO or other staff of SA to carry out
specified activities in relation to the day to day administration under the direction of the
Board. A formal delegation power is not necessary, as the fundamental role of the Board,
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which is to be responsible for the proper and efficient performance of SA's functions,
should not be delegated.
Subclause 9(3) provides that all acts and things done in the name of, or on behalf of, SA
by the Board, or with the authority of the Board, are taken to have been done by SA. An
authorisation given by the Board under subclause 9(3) is not a legislative instrument
under section 5 of the Legislative Instruments Act 2003, as it is not legislative in
character.
Subclause 9(4) allows all things done in the name of, or on behalf of, SA by the Board, or
with the authority of the Board, to be done on the basis of the subjective opinion, belief
or state of mind of the person or body doing them.
Clause 10 - Membership
This clause provides that the Board shall consist of the Chair, the Deputy Chair and
between three and seven other members.
Clause 11 - Appointment of Members
Subclause 11(1) provides for the appointment of members including the Chair. An
instrument of appointment would not be a legislative instrument by virtue of the existing
exemption in item 9 of Part 1 of Schedule 1 to the Legislative Instruments Regulations
2004.
Subclause 11(2) provides that a member holds office on a part-time basis. Subclause
11(3) provides that a member may be appointed for up to 3 years, and subclause 11(4)
provides that a person's total period of appointment as a member (whether made up of
consecutive or non-consecutive periods) may not exceed 9 years. It is the intention that a
member would usually only hold office for up to 6 years with a 9 year period of
appointment for special circumstances only.
Subclause 11(5) provides that the performance of the functions or the exercise of the
powers of the Board is not affected by reason only of the number of members falling
below 5 (which is the minimum allowed by clause 10) for a period of not more than six
months.
Clause 12 - Acting in Positions
This clause provides that:
· The Deputy Chair is to act as the Chair when there is no Chair or the Chair is
unavailable (subclause 12(1)), and when so acting may exercise all the Chair's
powers and perform all the Chair's functions (paragraph 12(2)(a)). While the Deputy
Chair is acting as the Chair, this Bill and any Act apply to the Deputy Chair as if he
or she were the Chair (paragraph 12(2)(b));
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· Anything done by the Deputy Chair when acting as the Chair is not invalid merely
because the occasion for the Deputy Chair to act as the Chair had not arisen or had
ceased (subclause 12(3));
· The Minister may appoint a member to act as the Deputy Chair when there is no
Deputy Chair or the Deputy Chair is unavailable or acting as Chair (subclause 12(4));
and
· The Minister may appoint a person to act as a member when there is a vacancy in the
office of a member or the member is unavailable or acting as Chair or Deputy Chair
(subclause 12(5)).
Anything done by, or in relation to, a person acting as Deputy Chair or a member is not
invalid merely because of technical problems in the appointment (subclause 12(6)).
Instruments of appointment made under this clause would not be legislative instruments,
by virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
Clause 13 - Remuneration of members
Subclause 13(1) provides that a SA member is to be paid such remuneration as is
determined by the Remuneration Tribunal or, if no determination of that remuneration is
in operation, the member is to be paid such remuneration as is prescribed in the
regulations. Subclause 13(2) provides that an SA member is to be paid such allowances
as are prescribed in the regulations.
Clause 13 has effect subject to the Remuneration Tribunal Act 1973 which provides for
the Remuneration Tribunal to conduct inquiries and make determinations on the
remuneration of certain office holders.
Whether a determination of the Remuneration Tribunal is a legislative instrument would
be determined under the Remuneration Tribunal Act 1973.
Clause 14 - Leave of members
The Minister may grant the Chair leave of absence on such terms and conditions as to
remuneration or otherwise as the Minister determines (subclause 14(1)). Such a grant of
leave would not be a legislative instrument, by virtue of the existing exemption under
item 11 of Part 1 of Schedule 1 to the Legislative Instruments Regulations 2004.
The Chair may grant another SA member leave of absence on such terms and conditions
as the Chair determines (subclause 14(2)). Such a grant of leave would not be a
legislative instrument, by virtue of the existing exemption under item 11 of Part 1 of
Schedule 1 to the Legislative Instruments Regulations 2004.
The Chair must notify the Minister if he or she grants to a member leave of absence for a
period exceeding 6 months (subclause 14(3)). Such a notification would not be a
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legislative instrument, by virtue of the existing exemption under item 20(a) of Part 1 of
Schedule 1 to the Legislative Instruments Regulations 2004.
Clause 15 - Resignation of members
A SA member may resign by giving the Minister a written notice. Such a notice would
not be a legislative instrument, by virtue of the existing exemption under item 10 of Part
1 of Schedule 1 to the Legislative Instruments Regulations 2004.
Clause 16 - Termination of appointment
This clause sets out the grounds upon which the Minister may terminate the appointment
of a SA member.
The Minister may terminate the appointment of an individual SA member for
misbehaviour, physical or mental incapacity (subclause 16(1)).
The Minister must terminate the appointment of a member, under subclause 16(2), if:
· the member becomes bankrupt, applies for relief from bankruptcy, enters into an
arrangement with creditors regarding the payment of his or her debts, or assigns all or
part of his or her remuneration for the benefit of creditors (paragraph 16(2)(a));
· the member fails without reasonable excuse to comply with section 27F or 27J of the
Commonwealth Authorities and Companies Act 1997. Section 27F requires a director
of a Commonwealth authority to give other directors notice of any material personal
interest in a matter which relates to the affairs of the authority, with certain
exceptions. Section 27J prevents a director who has a material personal interest in a
matter which is being considered at a directors' meeting from being present when that
matter is being considered or voting on it, with certain exceptions (paragraph
16(2)(b)); or
· the member is absent without leave from three consecutive meetings of the Board
(paragraph 16(2)(c)).
An instrument of termination of appointment would not be a legislative instrument, by
virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
Clause 17 - Other terms and conditions of members
The terms and conditions on which a member holds office are to be as determined by the
Minister except where provided for in the Bill.
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An instrument specifying terms and conditions of appointment would not be a legislative
instrument, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to
the Legislative Instruments Regulations 2004.
Division 2 - Board Procedures
Clause 18 - Meetings
Subclause 18(1) requires the Chair to convene meetings of the Board as necessary for the
efficient conduct of SA's affairs.
The quorum for a meeting as provided by subclause 18(2) is a majority of the current
members. However, subclause 18(3) provides that if section 27J of the Commonwealth
Authorities and Companies Act 1997 (which deals with conflicts of interest and is
referred to by subclause 18(2) of the Bill) requires a member not to be present during
deliberations or to take part in a decision in relation to a matter and this member's
absence takes the meeting below quorum, the remaining members constitute a quorum in
relation to that matter.
Under subclause 18(4), a question arising at a Board meeting is to be decided by a
majority of members present and voting.
The Chair is to preside at all meetings at which he or she is present (subclause 18(5)). In
the absence of the Chair, the Deputy Chair is to preside (subclause 18(6)). In the absence
of both the Chair and the Deputy Chair, the members present are to elect one of their
number to preside (subclause 18(7)).
Subclause 18(8) provides that the person presiding at a meeting will have a deliberative
vote and, in the event of an equality of votes, also have a casting vote (i.e. the deciding
vote).
Subclause 18(9) provides the Board must keep a record of any decisions made at a
meeting. It is not required to keep a record of all proceedings.
Subject to the Bill and the CAC Act, SA may regulate proceedings at its meetings as it
thinks fit (subclause 18(10)).
Clause 19 - Decisions without meetings
Clause 19 allows the Board to determine that decisions can be made without a meeting.
and also determine the method by which Board members are to indicate agreement with
proposed decisions.
Subclauses 19(1) and 19(2) provide that if the Board determines that clause 19 applies in
relation to a particular matter or particular matters and also determines the method by
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which members are to indicate agreement to a proposed decision, a resolution in relation
to the matter or matters will be taken to have been passed at a meeting of the Board if:
· without meeting, a majority of members entitled to vote on the proposed decision
indicate their agreement in accordance with the method determined by the Board
(paragraphs 19(1)(b) and (c)); and
· all members were informed of the proposed decision, or reasonable efforts had been
made to inform them of it (paragraph 19(1)(a)).
A member may not vote on a proposed decision if they would not be entitled to vote on
the proposed decision if the matter had been considered at a meeting of the Board
(subclause 19(3)).
The Board must keep a record of decisions made in accordance with clause 19 (subclause
19(4)).
Part 4 - Chief Executive Officer, staff and consultants
Division 1 - Chief Executive Officer
Clause 20 - Establishment
There is to be a CEO of SA.
Clause 21 - Role
The CEO is responsible for the day-to-day administration of SA (subclause 21(1)), and
has the power to do all things necessary or convenient to be done for or in connection
with the performance of his or her duties (subclause 21(2)). The CEO must act in
accordance with any policies and directions given by the Board in writing (subclause
21(3)), except in relation to the CEO's powers under the Public Service Act 1999. Such
policies and directions, should they be in writing, are administrative not legislative in
character and therefore not a legislative instrument under section 5 of the Legislative
Instruments Act 2003, which subclause 21(6) confirms.
All acts and things done in the name of or on behalf of SA by the CEO, or with the
authority of the CEO, are taken to have been done by SA (subclause 21(4)). An authority
given by the CEO is not a legislative instrument under section 5 of the Legislative
Instruments Act 2003, as it is not legislative in character.
If a function or power of SA is dependent on the opinion, belief or state of mind of SA in
relation to a matter, the function or power may be exercised upon the opinion, belief or
state of mind of the CEO or a person acting on the authority of the CEO (subclause
21(5)).
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Clause 22 - Appointment
The Board appoints the CEO after consulting with the Minister (subclause 22(1)), for a
period not to exceed five years (subclause 22(3)). The CEO holds office on a full-time
basis (subclause 22(2)) and must not be a member of the Board (subclause 22(4)). An
instrument of appointment as CEO would not be a legislative instrument, by virtue of the
existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
Clause 23 - Acting appointments
The Chair may, after consulting the Minister, appoint an acting CEO during a vacancy in
the office of CEO or while the CEO is absent or unavailable (subclause 23(1)). An
instrument of appointment as acting CEO would not be a legislative instrument, by virtue
of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
It is expected that this provision can encompass standing arrangements to cover short
term acting periods or where an urgent acting appointment needs to be made.
Anything done by a person purporting to act under such an appointment is not invalid
merely because of technical problems with the appointment of the acting CEO (subclause
23(2)).
Clause 24 - Other employment
The CEO must not engage in paid employment outside the duties of the CEO's office
without the Chair's approval (subclause 24(1)). The Chair must notify the Minister of
any such approval (subclause 24(2)). Such approval would not be a legislative
instrument, by virtue of the existing exemption under item 2 of Part 1 of Schedule 1 to
the Legislative Instruments Regulations 2004.
Clause 25 - Remuneration
The CEO is to be paid such remuneration as is determined by the Remuneration Tribunal
or, if no determination of that remuneration is in operation, the CEO is to be paid such
remuneration as is prescribed in the regulations (subclause 25(1)). The CEO is to be paid
such allowances as are prescribed in the regulations (subclause 25(2)).
Clause 25 would have effect subject to the Remuneration Tribunal Act 1973 which
provides for the Remuneration Tribunal to conduct inquiries and make determinations on
the remuneration of certain office holders (subclause 25(3)).
Whether a determination of the Remuneration Tribunal is a legislative instrument would
be determined under the Remuneration Tribunal Act 1973.
Clause 26 - Leave
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The CEO will have such recreation leave entitlements as are determined by the
Remuneration Tribunal (subclause 26(1)).
The Chair may grant the CEO leave of absence, other than recreation leave, on such
terms and conditions as to remuneration or otherwise as the Chair determines (subclause
26(2)). The granting of leave would not be a legislative instrument, by virtue of the
existing exemption under item 11 of Part 1 of Schedule 1 to the Legislative Instrument
Regulations 2004.
The Chair must notify the Minister if the Chair grants to the CEO leave for a period
exceeding one month (subclause 26(3)). Such a notification would not be a legislative
instrument, by virtue of the existing exemption under item 20(a) of Part 1 of Schedule 1
to the Legislative Instruments Regulations 2004.
Clause 27 - Disclosure
Clause 27 provides that the CEO must disclose to the Minister and the Chair all direct or
indirect pecuniary interests that the CEO has or acquires which conflict or could conflict
with the proper performance of the CEO's duties. Such a disclosure given by the CEO is
not a legislative instrument under section 5 of the Legislative Instruments Act 2003, as it
is not legislative in character.
Clause 28 - Resignation
The CEO may resign by giving a written resignation to the Chair (subclause 28(1)). Such
a written resignation would not be a legislative instrument, by virtue of the existing
exemption under item 10 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
The CEO must notify the Minister if the CEO resigns (subclause 28(2)).
Clause 29 - Termination
This clause sets out the grounds upon which the Board may terminate the appointment of
the CEO.
The Board may terminate the appointment of the CEO for misbehaviour, physical or
mental incapacity (paragraph 29(1)(a)). The Board may also terminate the appointment if
in their opinion there has been a significant period of unsatisfactory performance by the
CEO (paragraph 29(1)(b)).
In addition, the Board must terminate the appointment of the CEO under subclause 29(2)
if:
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· the CEO becomes bankrupt, applies for relief from bankruptcy, enters into an
arrangement with creditors regarding the payment of his or her debts, or assigns all or
part of his or her remuneration for the benefit of creditors (paragraph 29(2)(a));
· the CEO is absent without leave for 14 consecutive days or for 28 days in any 12
months (paragraph 29(2)(b));
· the CEO fails without reasonable excuse to comply with clause 27 of the Bill, which
deals with disclosure of conflicts of interest and possible conflicts of interest
(paragraph 29(2)(c)); or
· without the approval of the Chair under clause 24 of the Bill, the CEO engages in
paid employment outside of the duties of his or her office (paragraph 29(2)(d)).
If the Board terminates the appointment of the CEO, the Board must notify the Minister
of the termination (subclause 29(3)).
An instrument of termination of appointment would not be a legislative instrument, by
virtue of the existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004.
Clause 30 - Other terms and conditions
Where not covered by this Bill, the terms and conditions on which the CEO holds office
are to be as determined by the Board.
An instrument specifying terms and conditions of appointment would not be a legislative
instrument, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to
the Legislative Instruments Regulations 2004.
Division 2 - Staff and consultants
Clause 31 - Staff
Subclause 31(1) provides that the staff of SA will consist of people employed by SA
under subclause 31(2) as well as any people engaged under the Public Service Act 1999
for the purposes of SA. It is expected that SA would be cognisant of employment law
when employing staff under subclause 31(2).
Staff of SA will generally be engaged under the Public Service Act 1999. However,
some persons occupying specialist industry jobs that are not readily accommodated
within the Public Service framework will be employed by SA under subclause 31(2).
Instruments of employment are not legislative instruments, by virtue of the existing
exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004. Instruments determining conditions of employment are not legislative
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instruments, by virtue of the existing exemption under item 11 of Part 1 of Schedule 1 to
the Legislative Instruments Regulations 2004.
For the purposes of the Public Service Act 1999, the CEO and the staff of SA engaged
under the Public Service Act 1999 together constitute a Statutory Agency with the CEO
as the Head of that Statutory Agency (subclause 31(3)).
Clause 32 - Maternity leave for non-APS employees of Screen Australia
Clause 32 provides that the Maternity Leave (Commonwealth Employees) Act 1973 (ML
Act) applies to a person employed by SA as though the person were employed by the
Commonwealth under the PS Act and therefore a person to whom the ML Act applies
under subsection 5(1) of that Act.
Clause 33 - Long service leave for non-APS employees of Screen Australia
Clause 33 provides that the Long Service Leave (Commonwealth Employees) Act 1976
(LSL Act) applies to a person employed by SA as though the person were employed in
Government Service within the meaning of section 10 of the LSL Act.
Clause 34 - Consultants
SA may engage consultants to assist in the performance of its functions. This provision
is not intended to affect the operation of clause 7.
An instrument of engagement would not be a legislative instrument, by virtue of the
existing exemption under item 9 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
Part 5 - Planning
Clause 35 - Corporate plan
The Board must prepare a corporate plan for SA at least once a year (subclause 35(1)).
This plan is a rolling plan and must cover a period of at least three years from the time it
is made (subclause 35(2)). Although corporate plans will cover at least 3 financial years
they will be prepared on an annual rolling basis so they will be updated annually with the
previous year deleted and a further out year added on.
Subclause 35(3) provides that the Minister may give the Board written instructions with
which the Board must comply when preparing the plan and any variations to it. For
example, this subclause would contemplate the Minister instructing the Board as to the
time when a plan must be submitted for approval. It is intended that the first corporate
plan be prepared by 30 September 2008 and the Minister may instruct SA in this regard.
These instructions are administrative in effect and not legislative in character, therefore
not a legislative instrument under section 5 of the Legislative Instruments Act 2003. For
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the avoidance of doubt, subclause 35(4) provides that these instructions are not
legislative instruments.
A corporate plan would not be a legislative instrument, by virtue of the existing
exemption under item 34 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004.
For the purposes of this clause, in line with usual practice for corporate plans, a year is a
financial year covering a period from 1 July in any year until 30 June in the following
year.
Clause 36 - Contents of corporate plan
Subclause 36(1) provides that the plan must include:
· a statement of the objectives that SA will pursue in the performance of its functions
under clause 6 (paragraph 36(1)(a));
· the strategies and policies that SA will adopt in order to achieve those objectives
(paragraph 36(1)(b));
· performance indicators for the assessment of SA's performance of its functions. It is
expected that these indicators will relate to other aspects of SA's corporate plan
(paragraph 36(1)(c));
· the investment and financing programs of SA, including its strategies for managing
financial risks (paragraph 36(1)(d));
· financial targets and projections for SA (paragraph 36(1)(e));
· an analysis of factors likely to affect achievement of targets or create significant
financial risk for SA or for the Commonwealth (paragraph 36(1)(f));
· a review of recent performance measured against the most recent relevant plan
(paragraph 36(1)(g)). For example, a corporate plan prepared for 2008/09 for the
years 2009/10 and beyond, would include a review of performance of 2007/08 and
that part of 2008/09 to date; and
· such other matters as the Minister directs, if any (paragraph 36(1)(h)). A direction
made in writing under paragraph 36(1)(h) would not be a legislative instrument,
because such a direction is included in the exemption at item 5 of the table in
section 7 of the Legislative Instruments Act 2003. Subclause 36(3) confirms that such
a direction is not a legislative instrument.
The plan may also include any other matters (subclause 36(2)).
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Clause 37 - Approval of corporate plan by Minister
The plan must be given to the Minister for approval before the start of the period to
which it relates (subclause 37(1)). The Minister may, in written notice to the Board,
approve the plan or request the Board to revise it for the reasons set out in the written
notice (subclause 37(2)). Such a notice from the Minister is not a legislative instrument
by virtue of the exemptions in item 21 of the table in section 7 of the Legislative
Instruments Act 2003 and item 3 of Part 1 of Schedule 1 to the Legislative Instruments
Regulations 2004. Additionally, the notice is administrative in effect and therefore not a
legislative instrument under section 5 of the Legislative Instruments Act 2003. Subclause
37(5) confirms this.
If the Minister requests that the Board revise the plan, the Board must revise it and give
the revised plan to the Minister for approval (subclause 37(3)).
The plan comes into force on the day on which it is approved by the Minister or the first
day of the period to which it relates, whichever comes first (subclause 37(4)).
Clause 38 - Variation of corporate plan
The Board may at any time vary a corporate plan, whether or not it is in force (subclause
38(1)).
An instrument that varies an instrument that is not itself a legislative instrument would
not be a legislative instrument, by virtue of the existing exemption under item 33 of Part
1 of Schedule 1 to the Legislative Instruments Regulations 2004.
The Minister may at any time request the Board to vary a corporate plan, whether or not
it is in force. The Board must comply with any such request (subclause 38(2)). Such a
request is not a legislative instrument by virtue of the exemptions in item 21 of the table
in section 7 of the Legislative Instruments Act 2003 and item 24 of Part 1 of Schedule 1
to the Legislative Instruments Regulations 2004. Additionally, the notice is
administrative in effect and therefore not a legislative instrument under section 5 of the
Legislative Instruments Act 2003. Subclause 38(6) confirms this.
A variation must be given to the Minister for approval (subclause 38(3)), and comes into
force on the day on which it is approved by the Minister (subclause 38(4)). If the plan is
already in force when a variation to it is approved by the Minister, the plan continues in
force on and after the day on which it is varied (subclause 38(5)). An approval by the
Minister is not a legislative instrument by virtue of the exemptions in item 21 of the table
in section 7 of the Legislative Instruments Act 2003 and item 3 of Part 1 of Schedule 1 to
the Legislative Instruments Regulations 2004. Additionally, the notice is administrative
in effect and therefore not a legislative instrument under section 5 of the Legislative
Instruments Act 2003. Subclause 38(6) confirms this.
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Part 6 - Finance
Clause 39 - Money payable to Screen Australia
Money appropriated by the Parliament for the purposes of SA is payable to SA
(subclause 39(1)).
The Finance Minister, or the Minister administering the Financial Management and
Accountability Act 1997, may give directions about the amount and timing of payments
made to SA under this clause (subclause 39(2)). A direction by the Finance Minister is
administrative, not legislative in character and therefore is not a legislative instrument
under section 5 of the Legislative Instruments Act 2003. Subclause 39(3) confirms this.
Clause 40 - Application of money by Screen Australia
The money of SA is to be applied only in payment or discharge of the costs expenses and
other obligations incurred or undertaken by SA in the performance of its functions and
the exercise of its powers, and in payment of any remuneration or allowances payable
under this Bill (subclause 40(1)).
Subclause 40(1) does not prevent SA investing surplus money under section 18 of the
CAC Act (subclause 40(2)).
Clause 41 - Restrictions on financial transactions
Subject to certain exceptions set out in subsection 41(2), SA must not, without the
approval of the Minister:
· acquire any property, right or privilege for a consideration exceeding in amount or
value the amount prescribed by the regulations (paragraph 41(1)(a));
· dispose of any property, right or privilege if the amount or value of the consideration
for the disposal, or the value of the property, right or privilege, exceeds the amount
prescribed by the regulations (paragraph 41(1)(b));
· enter into a contract for the construction of a building for SA, being a contract under
which SA is to pay an amount exceeding the amount prescribed by the regulations
(paragraph 41(1)(c)); or
· enter into a lease of land for a period exceeding 10 years (paragraph 41(1)(d)).
Paragraphs 41(1)(a) and 41(1)(b) do not apply to transactions relating to the functions
described in subparagraph 6(1)(b)(i) (subsection 41(2)). This exception allows SA broad
flexibility in performing its function of supporting and engaging directly in the
production of Australian programs. A key function for SA is investing significant sums
of money in film and television development, production and distribution activities. It
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would not be appropriate for the Minister to approve each decision in relation to such
spending as this should be an arms length process from Government. The agency and its
Board have the appropriate knowledge and skills to decide where the funding should be
allocated.
However, under subclause 41(3), the regulations may prescribe limits on the total
amounts of money that may be committed by SA in performing its functions under
paragraph 6(1)(a) and subparagraph 6(1)(b)(i). Such a prescription allows for
appropriate controls to be set on overall commitments to particular broad categories of
funding, without derogating from SA's ability to make individual funding decisions on
an arm's length basis as provided under subsection 41(2)(a).
Paragraphs 41(1)(a) and 41(1)(b) also do not apply to the investment of money by SA
under section 18 of the CAC Act (subclause 41(2)).
An approval given by the Minister under subclause 41(1) is not a legislative instrument
by virtue of the exemption in item 3 of Part 1 of Schedule 1 to the Legislative
Instruments Regulations 2004. Additionally, the notice is administrative in effect and
therefore not a legislative instrument under section 5 of the Legislative Instruments Act
2003. Subclause 41(4) confirms this.
Clause 42 - Taxation
SA is not subject to taxation under any law of the Commonwealth or of a State or
Territory (subclause 42(1)) unless the regulations provide that taxation under a specified
law applies (subclause 42(2)). This provision is in line with subsection 41(1) of the AFC
Act and hence SA will have the same tax arrangements as currently exist for the AFC.
The result is that SA would be exempt from tax but still subject to special taxes such as
the Goods and Services Tax. In this regard the note to this clause explains that despite
subclause 42(1) SA may be subject to taxation under certain laws, for example section
177-5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the
Fringe Benefits Tax Assessment Act 1986).
Part 7 - Other matters
Clause 43 - Annual reports
Under section 9 of the CAC Act, SA must prepare an annual report to be tabled in
Parliament by the Minister. Clause 43 provides that the report must, for the period
covered by the report, include a report on the guarantees, if any, that have been given by
SA, including the total amount the subject of these guarantees (paragraphs 43(a) and (b)).
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Clause 44 - Ministerial direction
The Minister may, by legislative instrument, give written directions to the Board in
relation to the performance of the functions of and the exercise of the powers of SA
(paragraph 44(1)(a)).
The Minister may also, by legislative instrument, require the provision of a report or
advice on any matter that relates to any of SA's functions and powers
(paragraph 44(1)(b)).
Section 42 of the Legislative Instruments Act 2003, which provides for disallowance,
does not apply to directions given under subclause 44(1) by virtue of the existing
exemption under item 41 of the table in subsection 44(2) of that Act. The sunsetting
provision in Part 6 of the Legislative Instruments Act 2003 do not apply to a direction
given under subclause 44(1), by virtue of section 54 of that Act.
The Minister must not give a direction in relation to a decision by the Board to provide
support to a particular person or for a particular program (subclause 44(2)). The types of
support SA may provide are given in subclauses 6(1) and 6(2). `Program' is a term
defined in clause 3.
The Board must ensure that any direction given by the Minister under subclause 44(1) is
complied with (subclause 44(3)).
Legislative instruments made under this clause are not subject to disallowance, by virtue
of the existing exemption under item 41 of the table in subsection 44(2) of the Legislative
Instruments Act 2003.
Clause 44 does not operate to oust section 16 of the CAC Act (subclause 44(4)).
Paragraph 44(1)(b) includes directions in relation to specific matters, and not just the
general operations of the authority.
Clause 45 - Regulations
The Governor General may make regulations prescribing matters required or permitted
by this Bill to be prescribed or necessary or convenient to be prescribed for carrying out
or giving effect to this Bill.
Any such regulations are legislative instruments under section 6(a) of the Legislative
Instruments Act 2003.