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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SCREEN AUSTRALIA (TRANSFER OF ASSETS) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Arts, the Hon Simon Crean
MP)
SCREEN AUSTRALIA (TRANSFER OF ASSETS) BILL 2010
OUTLINE
The Screen Australia (Transfer of Assets) Bill 2010 (the Bill) provides for
the change of name of the National Film and Sound Archive (NFSA) and will
facilitate the legal transfer of certain assets and liabilities associated
with Screen Australia's (SA) film library and related sales and digital
learning functions from SA to the NFSA.
Schedules 1 to the Bill operate to change the name of the NFSA to the
National Film and Sound Archive of Australia (NFSAA). As a result of this
name change, Schedule 1 also makes a number of consequential amendments to
other Commonwealth Acts including the Freedom of Information Act 1982,
National Film and Sound Archive Act 2008 and the Screen Australia and
National Film and Sound Archive (Consequential and Transitional Provisions)
Act 2008.
Schedule 2 to the Bill contains provisions to legally transfer part of SA's
film library and associated assets and liabilities to the NFSAA. In
addition, Schedule 2 contains provisions relating to the transfer of staff
from SA to the NFSAA and other transitional matters.
FINANCIAL IMPACT STATEMENT
The Screen Australia (Transfer of Assets) Bill 2010 will have minimal
impact on Commonwealth expenditure.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
APS Australian Public Service
Bill Screen Australia (Transfer of Assets) Bill 2010
C&T Act Screen Australia and the National Film and Sound Archive
(Consequential and Transitional Provisions) Act 2008
CAC Act Commonwealth Authorities and Companies Act 1997
FOI Act Freedom of Information Act 1982
FW Act Fair Work Act 2009
LI Act Legislative Instruments Act 2003
LSL Act Long Service Leave (Commonwealth Employees) Act 1976
Minister Minister for the Arts
NFSA National Film and Sound Archive
NFSAA National Film and Sound Archive of Australia
NFSA Act National Film and Sound Archive Act 2008
PS Act Public Service Act 1999
SA Screen Australia
SA Act Screen Australia Act 2008
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 provides that the Bill, when enacted, may be cited as the
Screen Australia (Transfer of Assets) Act 2010.
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. Any other statement in column 2 has effect
according to its terms.
3. Item 1 of the table provides that clauses 1 to 4 of the Bill (containing
the short title, the commencement provision and the provision explaining
the operation of the Schedules to the Bill), as well as anything in the
Bill not covered by the table, would commence on the day after the Bill
receives the Royal Assent.
4. Item 2 of the table provides that items 1, 2 and 3 of Schedule 1 to the
Bill (containing amendments to the Freedom of Information Act 1982 (the
FOI Act) and bulk amendments to the National Film and Sound Archive Act
2008 (the NFSA Act)) would commence on 1 July 2011.
5. Item 3 of the table provides that items 4, 5, 6 and 7 of Schedule 1 to
the Bill (which contain further technical amendments to the NFSA Act
including amendments to titles and headings) would commence immediately
after the commencement of the provisions covered by table item 2.
6. Item 4 of the table provides that item 8 of Schedule 1 to the Bill
(which contains bulk amendments to the Screen Australia and the National
Film and Sound Archive (Consequential and Transitional Provisions) Act
2008 (the C&T Act)) would commence on 1 July 2011.
7. Item 5 of the table provides that items 9, 10, 11 and 12 of Schedule 1
to the Bill (which contain further technical amendments to the C&T Act)
would commence immediately after the commencement of the provisions
covered by table item 4.
8. The commencement provisions for Schedule 1 to the Bill have been
specified in this way to ensure that the bulk amendments to the NFSA Act
and C&T Act are made in the appropriate order and no conflicts arise in
determining precisely what amendments need to be made to these Acts.
9. Item 6 of the table provides that Schedule 2 to the Bill (which contains
provisions relating to the transfer of film library assets and film
library liabilities and the transfer of employees) would commence on the
day after the Bill receives the Royal Assent.
Clause 3 - Schedule
10. Clause 3 provides that each Act that is specified in a Schedule to the
Bill is amended as set out in that Schedule and that any other item in a
Schedule to the Bill has effect according to its terms.
Clause 4 - Extended geographic application of this Act
11. The Bill will extend to every external territory and applies within and
outside Australia.
Schedule 1 - Name change
12. Schedule 1 to the Bill provides for bulk amendments (as well as
specific amendments to titles, headings and a definition) to the NFSA Act
and the C&T Act to substitute the new name of the National Film and Sound
Archive. Schedule 1 also makes a number of specific amendments to the FOI
Act to allow for this name change.
13. The change from NFSA to NFSAA is to allow the agency's name to be
consistent with the majority of the Australian Government collecting
institutions such as the National Gallery of Australia and the National
Museum of Australia. The change will enable the NFSAA to be identified
internationally as being an Australian collecting institution.
Freedom of Information Act 1982
Item 1 Paragraph 13(1)(e)
14. This item amends the name of the NFSA to the NFSAA in the FOI Act.
Paragraph 13(1)(e) of the FOI Act relates to access to program or related
material in the collection of the National Film and Sound Archive.
Item 2 Paragraph 13(1)(e)
15. This item also amends the name of the NFSA to the NFSAA in paragraph
13(1)(e) of the FOI Act.
National Film and Sound Archive Act 2008
Item 3 Bulk amendments
16. This item makes bulk amendments to the NFSA Act to change the name of
the NFSA to the NFSAA.
Item 4 Title
17. This item amends the title of the NFSA Act to change the name of the
NFSA to the NFSAA.
Item 5 Section 1
18. This item amends the short title of the NFSA Act to change the name of
the NFSA to the NFSAA.
Item 6 Part 2 (heading)
19. This item amends the heading for Part 2 of the NFSA Act to change the
name of the NFSA to the NFSAA.
Item 7 Part 3 (heading)
20. This item amends the heading for Part 3 of the NFSA Act to change the
name of the NFSA to the NFSAA.
Screen Australia and National Film and Sound Archive (Consequential and
Transitional Provisions) Act 2008
Item 8 Bulk Amendments
21. This item provides for bulk amendments to the C&T Act by omitting any
references to the NFSA and substituting with the NFSAA. The C&T Act
provides for transitional and consequential matters in connection with
the establishment of SA and the NFSA.
Item 9 Title
22. This item amends the title of the C&T Act to change the name of the
NFSA to the NFSAA.
Item 10 Item 1 of Schedule 2 (definition of NFSA)
23. This item repeals the definition of NFSA in the C&T Act
Item 11 Item 1 of Schedule 2
24. This item inserts a new definition of the NFSAA into the C&T Act.
Item 12 Part 7 of Schedule 2 (heading)
25. This item amends the heading for Part 7 of Schedule 2 of the C&T Act to
change the name of the NFSA to the NFSAA.
Schedule 2 - Screen Australia
Part 1 - Certain assets and liabilities of Screen Australia transferred to
the NFSAA
26. Part 1 of Schedule 2 to the Bill provides for the vesting of certain
assets and liabilities of the SA's film library in the NFSAA.
27. SA and the NFSA were established as separate statutory authorities on 1
July 2008. The agencies have completed over two years of operations as
separate statutory authorities. In that time it has become clear that
certain functions associated with Screen Australia's film library, and
related sales and digital learning functions, are best placed with the
NFSA. The film library contains a substantial archival resource and the
NFSA, as Australia's premier collecting institution for audio-visual
material, is the agency that should be responsible for preserving and
supporting the development and exploitation of this resource. For the
avoidance of doubt, the film library, sales and digital learning
functions fall within the statutory functions set out in subsection 6(1)
of the NFSA Act.
28. Part of SA's film library consists of a collection of approximately
5,000 films (and associated materials) produced by the former Film
Australia Ltd and its predecessor agencies or acquired from third party
producers. Since the establishment of SA, the library has been
supplemented by documentary films produced with funds made available by
SA's National Documentary Program. The sales function relates to the
commercial use of films comprised within SA's library collection and
certain other films, the relevant rights to which were acquired by Film
Australia Ltd. The digital learning function is a collection of primarily
on-line educational resources which uses audio-visual material and stills
within the library and associated teaching material.
Item 1 - Definitions
29. This item sets out the definitions to be used for the purposes of
Schedule 2. The most significant definition is 'film library' which is
intended to encompass the functions to be transferred from SA to the
NFSAA and includes a part of SA's film library (that is, the library
of films and associated materials that were previously owned by Film
Australia Limited and that were transferred to Screen Australia under
the C & T Act) as well as the associated sales and digital learning
functions. For the avoidance of doubt, any material which is currently
held by SA in regards to its sales and digital learning functions is
considered part of the film library, as defined, for the purposes of
this Bill. In addition, the 'transition time' for the transfer of film
library assets and liabilities from SA to NFSAA is defined in the Bill
as 1 July 2011.
30. The Bill only deals with the transfer of the library as it existed
under the management of Film Australia Limited as at 30 June 2008,
immediately prior to the transfer of that library to SA under the C&T
Act. It is intended that the ownership of assets and liabilities arising
on and after 1 July 2008 (for example SA's rights in films produced under
the National Documentary Program) not be transferred to NFSAA and instead
be retained by SA. However, it is intended that arrangements to confer
certain commercial use rights on NFSAA in relation to such retained
assets will be put in place.
Item 2 - Film library assets and film library liabilities of Screen
Australia become assets and liabilities of NFSAA
31. Subitem 2(1) provides that item 2 applies to assets and liabilities of
SA immediately before the transition time (that is, 1 July 2011).
32. Sub item 2(2) provides that at the transition time all film library
assets and film library liabilities cease to be assets and liabilities of
SA and become assets and liabilities of the NFSAA without the need for
any conveyance, transfer or assignment. The NFSAA will be the successors
in law in relation to these assets and liabilities.
33. Subitem 2(3) provides that before the transition time the Minister may
determine in writing that specified assets and liabilities, other than
those associated with the film library but which are related or connected
to the film library, become assets and liabilities of the NFSAA. This
subitem is to ensure that any assets or liabilities that are not directly
part of the film library but are necessary to the functioning of the film
library are transferred to the NFSAA.
34. For the avoidance of doubt, item 2 only operates to transfer rights
held by SA, including intellectual property rights, to the NFSAA. Third
party rights in any of the material transferred under subitems 2(2) and
2(3) will not be affected.
35. Subitem 2(4) provides that any assets and liabilities specified by the
Minister in a determination under subitem 2(3) at the transition time
cease to be assets and liabilities of SA and become assets and
liabilities of the NFSAA. The NFSAA will be the successor in law in
relation to those assets and liabilities.
36. Subitem 2(5) provides that before the transition time, despite subitem
2(2), the Minister may determine in writing that specified film library
assets or liabilities of SA continue to be assets or liabilities of SA
and do not become assets or liabilities of NFSAA. This subitem is to
ensure that if, by reason of the operation of the Bill, there would be a
vesting in NFSAA of assets or liabilities which, although having some
connection with the film library, are intended to remain with SA on
account of their more substantial connection to SA's retained assets and
business, those assets and liabilities will remain with SA.
37. A determination by the Minister under subitems 2(3) or 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 (LI Act). Subitem 2(6) confirms this and is included
to assist readers.
38. An asset which immediately before the transition time was held by SA on
trust and
has become an asset of NFSAA under item 2 is taken, after the transition
time, to be held on trust by NFSAA. Such an asset is subject to the terms
of the trust on which the asset was held by SA (subitem 2(7)).
Item 3 - Certificates for vesting of assets
39. Item 3 provides for a simplified procedure for the registration of
assets vested in NFSA under item 2. This procedure is as follows:
a) The Minister signs a certificate identifying the asset and
stating that the asset has become vested in NFSA under item 2.
b) The certificate is lodged with the person or authority
(Commonwealth, State or Territory) who is responsible for keeping
a register in relation to assets of the kind concerned (the
'assets official' as defined in subitem 3(4)).
c) The assets 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 1 of Schedule 2 to this Bill.
40. A certificate made under subitem 3(1) is not a legislative instrument,
as it is not legislative in character and therefore not within the
meaning of section 5 of the LI Act. Subitem 3(3) confirms this and is
included to assist readers.
Item 4 - Certificates taken to be authentic
41. Item 4 provides that a document that appears to be a certificate made
or issued under a particular provision of the Bill is taken to be such a
properly given certificate unless the contrary is established.
Item 5 - Exemption from stamp duty and other State or Territory taxes
42. Item 5 is required to ensure that State and Territory taxes such as
stamp duty do not apply to the operation of Schedule 2 of the Bill. The
item provides that no stamp duty or other tax is payable under the law of
a State or Territory in respect of an exempt matter (subitem 5(1)).
'Exempt matter' is defined in subitem 5(2) as the vesting of a film
library asset or film library liability under item 2 of the Bill, or any
other operation of Schedule 2.
43. Under subitem 5(3) the Minister may certify in writing that a specified
matter is an exempt matter or that a specified thing is connected with a
specified exempt matter. If the Minster does so, the certificate is prima
facie evidence in all courts for all purposes (other than in criminal
proceedings) of matters stated in the certificate (subitem 5(4)).
44. A certificate made by the Minister under subitem 5(3) is not a
legislative instrument within the meaning of section 5 of the LI Act.
Subitem 5(5) confirms this and is included to assist readers.
Part 2-Staff of Screen Australia
45. Part 2 of Schedule 2 to the Bill provides for matters relating to the
transfer of relevant SA employees currently working in connection with
the film library to the NFSAA. The SA staff are non-APS employees
engaged under subsection 31(2) of the Screen Australia Act 2008 (SA Act)
and will be transferred to the NFSAA subject to the Public Service Act
1999 and by a determination under section 72 of that Act.
Item 6 - Non-APS employees of Screen Australia transferred to NFSAA as APS
employees
46. Item 6 applies to people appointed or employed by SA under subsection
31(2) of the SA Act immediately before the transition time who are
transferred to employment at the NFSAA under the PS Act.
47. Subitem 6(2) makes provision for such people to have accrued
entitlement to annual leave, personal leave and carer's leave which
applied to their employment by SA immediately before the transition time.
Rather than paying out accrued annual leave to employees or employees
losing their entitlement to personal leave and carer's leave, this
subitem 6(2) means that staff can simply take their entitlements to
annual leave, personal leave and carer's leave to the NFSA and use them
when required.
48. Such transfer is with continuity of service, this is confirmed by
subitem 6(4)). For the purposes of the unpaid parental leave provisions
in Division 5 of Part 2-2 of the Fair Work Act 2009 (the FW Act), a
transferring employee's service at NFSAA is also taken to be continuous
with his or her service as an officer or employee of SA (subitem 6(3)).
Item 7 - No transfer of business
49. For the avoidance of doubt, item 7 makes clear that nothing in Schedule
2 to the Bill results in a transfer of business for the purposes of the
FW Act.
Part 3-Things done by, references in instruments to, legal proceedings of
and records or documents of Screen Australia
Item 8 - Things done by, or in relation to, Screen Australia
50. Before or after the transition time, the Minister may make a written
determination that a specified thing done by, or in relation to, SA
before the transition time in respect of a film library asset or a film
library liability (or any other assets or liabilities) as result of the
operation of item 2, is taken to have been done by, or in relation to, SA
(subitem 8(1) and 8(4)).
51. A determination made under subitem 8(1) is not a legislative
instrument, as it is not legislative in character and therefore not
within the meaning of section 5 of the LI Act. Subitem 8(5) confirms this
and is included to assist readers.
Item 9 - References in instruments to Screen Australia
52. Item 9 applies to instruments (as defined in subitem 9(2)) referring to
SA which are in force immediately before the transition time (subitem
9(1)). Such instruments that relate to:
a) a film library asset or film library liability (or any other asset or
liability) of SA that, as a result of the operation of item 2, become
an asset or liability of NFSAA at the transition time; or
b) a thing done by, or in relation to, SA, that, as a result of the
operation of item 8 is taken to be done by, or in relation to, the
NFSAA at the transition time
have effect from the transition time as if the reference in the
instrument to SA referred to the NFSAA (subitem 9(2)).
53. Item 9 is not intended to apply to international treaties or
agreements.
54. This item does not operate to transfer the instruments themselves, it
just amends the references within the instruments.
55. Where subitem 9(2) does not apply to an instrument, the Minister may
determine that the reference in the instrument has effect as if the
reference to SA were to NFSAA, (subitem 9(3)). The Minister may make a
determination under subitem 9(3) before or after the transition time
(subitem 9(5)).
56. A determination made under subitem 9(3) is not a legislative
instrument, as it is not legislative in character and therefore not
within the meaning of section 5 of the LIA Act. Subitem 9(6) confirms
this and is included to assist readers.
Item 10 - Legal Proceedings of Screen Australia
57. Item 10 applies to any proceedings to which SA was a party that were
pending in any court or tribunal immediately before the transition time.
If the proceedings related to a film library asset or film library
liability (or any other asset or liability) where the NFSAA has become
the successor in law of SA as result of the operation of item 2, then at
and after transition time NFSAA is taken to be substituted as a party to
the proceedings (subitem 10(2)).
58. Where subitem 10(2) does not apply to the proceedings (but the
proceedings relate to the operation of Schedule 2 to the Bill), the
Minister may determine in writing that NFSAA is to be substituted as a
party to the proceedings in respect to that film library asset and film
library liability (or other asset or liability) (subitem 10(3)). The
Minister may make a determination under subitem 10(3) before or after the
transition time (subitem 10(5)).
59. A determination made under subitem 10(3) is not a legislative
instrument, as it is not legislative in character and therefore not
within the meaning of section 5 of the LI Act. Subitem 10(6) confirms
this and is included to assist readers.
Item 11 - Transfer of custody of records or documents of Screen Australia
60. Item 11 applies to a record or document that is, immediately before the
transition time, in the custody of SA. If the record or document relates
to either:
a) a film library asset or a film library liability (or any other
asset or liability) as a result of the operation of item 2,
becomes an asset or liability of SA at the transition time; or
b) a thing done by or in relation to, SA, that as a result of the
operation of item 8, is taken to be done by, or in relation to,
NFSAA;
then after the transition time, the record or document is to be
transferred into the custody of NFSAA (subitem 11(2)).
61. Where subitem 11(2) does not apply to a record or document (but the
record or document relates to the operation of Schedule to the Bill), the
Minister may determine that at or after the transition time, the record
or document is to be transferred into the custody of the NFSAA (subitem
11(3)). The Minister may make a determination under subitem 11(3) before
or after the transition time (subitem 11(5)).
62. A determination made 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 LI Act. Subitem 11(6) confirms
this and is included to assist readers.
63. Section 20 of the CAC Act imposes on Commonwealth authorities various
requirements relating to the keeping of accounting records. It requires a
Commonwealth authority to, among other things, retain accounting records
for 7 years after the completion of the transactions to which they relate
(subsection 20(2) of the CAC Act) and imposes penalties on officers who
contravene it (subsection 20(4)). Subitem 11(7) applies section 20 of the
CAC Act to a body to which accounting records are transferred under item
11 as if the records were records of that body.
Item 12 - Variation of the operation of this Part
64. Item 12 provides that the Minister may determine in writing that a
provision in item 9, 10 or 11 does not apply to the instruments,
proceedings, records or documents specified in the determination. A
determination under subitem 12(1) can be specified to take effect
retrospectively but not at a time earlier than the transition time
(paragraph 12(2)(a)).
65. A determination made under subitem 12(1) is not a legislative
instrument, as it is not legislative in character and therefore not
within the meaning of section 5 of the LI Act. Subitem 12(3) confirms
this and is included to assist readers.
Part 4-Other matters
Item 13 - Transfer of appropriated money
66. For the purposes of the operation of Appropriation Acts ('Appropriation
Act' is defined in subitem 13(5) as an Act appropriating money for
expenditure out of the Consolidated Revenue Fund), the Finance Minister
may determine that one part of the amount referred to in that Act, which
relates to SA, is to be read as the amount that relates to NFSAA instead
(subitem 13(1)). A determination made by the Finance Minister under item
13 must be related to transfer of the film library functions under
Schedule 2 of the Bill.
67. Subitem 13(3) ensures that a determination made under subitem 13(1)
cannot result in a change in the total amount appropriated.
68. A determination made under subitem 13(1) is a legislative instrument
under section 5 of the LI Act. However, such determinations are to be
exempt from the disallowance and sunsetting provisions (section 42 and
Part 6 of the LI Act, respectively). The instrument that would be made
under this item is intended to cover an arrangement whereby a portion of
SA's annual appropriation from 2011-12 onwards would be appropriated to
the NFSAA. The sunsetting exemption is to ensure that the instrument is
enduring and will be permanently available through publication on the
Federal Register of Legislative Instruments. The disallowance exemption
is required so that the operations of SA and NFSAA will not be disrupted.
Item 14 - Compensation for acquisition of property
69. 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.
70. 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 14(1)). In the absence of agreement, the person may institute
proceedings in a court of competent jurisdiction for the recovery of
reasonable compensation (subitem 14(2)).
71. In item 18, 'acquisition of property' and 'just terms' each have their
respective meanings under paragraph 51(xxxi) of the Constitution (subitem
14(3)).
Item 15 - Delegation by Minister
72. Under this item, the Minister may delegate in writing all or any of his
or her powers under this Bill to the Secretary, 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 15(2)).
73. 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.
Item 16 - Regulations
74. 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. It is
expected that regulations may need to be made providing for:
a) amendments or repeals made by the Bill;
b) the employment, at or after the transition time, by the NFSAA, of a
person appointed, engaged or employed, immediately before transition
time, by SA; and
c) leave of employees of SA approved before the transition time.
75. Any such regulations are legislative instruments under section 6(a) of
the LI Act.
Item 17 - References in this Schedule
76. This item has been included for the avoidance of doubt to clarify that
references to the NFSAA in Schedule 2 to the Bill are to be read as
references to the NFSA prior to the 1 July 2011. The name change for the
NFSA will not take effect until 1 July 2011 but Schedule 2 to the Bill,
which contains numerous references to the NFSAA, will commence from the
day after the Royal Assent (which is likely to be a date prior to
1 July 2011). This item ensures that there is no confusion as to the
meaning and effect of those items in Schedule 2 to the Bill which refer
to the NFSAA.