STATUTES AMENDMENT (ARTS AGENCIES GOVERNANCE AND OTHER MATTERS) BILL

Committee Stage

In committee.

(Continued from 30 September 2010.)

Clause 50.

The Hon. G.E. GAGO: I have answers to some of the questions asked by the Hon. Rob Lucas during the committee stage, so I will deal with them first. In relation to the question asked by the Hon. Rob Lucas about Carrick Hill about the removal of the requirement for ministerial consent for the disposal of objects of artistic, historical and cultural interest, I advise that such a restriction has not existed in relation to the Art Gallery, Museum or State Library. Like these major collecting institutions, Carrick Hill has a formal de-accessioning policy, which has and will be conscientiously followed.

The de-accessioning policy is part of Carrick Hill's collection policy, which is based on that of the Art Gallery of South Australia, and it is also checked against best practice, through Museums Australia Inc., the peak body for the museum industry and professional practice in Australia. The removal of section 13(6) also preserves the artistic and cultural freedom that the statutory authority model was selected to ensure.

In relation to a series of questions asked in relation to a staffing matter relating to the library, I have been advised that the Libraries Board does not have the power to employ staff. The staff required to operate the State Library are employees of the Department of the Premier and Cabinet and are employed under the Public Sector Act 2009. The act has replaced the Public Sector Management Act 1995, which would have been in operation at the time of the events raised by the Hon. Rob Lucas. Accordingly, the responsibility for staffing matters was and is held by the Chief Executive of the Department of the Premier and Cabinet, not the Libraries Board. The chief executive determines where within the department's hierarchy the delegations for various human resource matters will rest.

The events under question relate to a staff disciplinary matter and are therefore subject to a level of confidentiality. Further, I can advise that the powers used in the matter were those contained in the Public Sector Management Act 1995 and have no relevance to this bill.

The Hon. R.I. Lucas interjecting:

The Hon. G.E. GAGO: Hold your horses. I have a little pile here—just relax. In relation to a question asked by the Hon. Rob Lucas in relation to the equivalent provisions under the Public Sector Management Act that have been used as a protection against ministerial involvement in staffing matters, I have been advised that in the last session it was established that employees of the Art Gallery, Carrick Hill, State Library and SA Museum are employed under the Public Sector Act 2009, which replaced the Public Sector Management Act 1995.

The Hon. Rob Lucas noted that the other arts acts contained provision whereby no ministerial direction may be given in relation to employment matters such as appointment, transfer, remuneration, discipline or termination. He asked for confirmation that protection against ministerial involvement was also afforded to employees of these four agencies. I confirm that this is provided by section 33B of the Public Sector Act 2009.

The Hon. Rob Lucas indicated that an answer provided to his previous question on changes to the board's powers was insufficient and that therefore in committee he would query the board's powers under the powers section for each act. I have been advised that during the debate the Hon. Robert Lucas asked whether the arts boards are to be given greater powers than exist under the current acts in relation to particular provisions.

I provided a response confirming that each of the arts boards is a body corporate and as such holds the power of a natural person. While some of the existing acts do not provide an exhaustive list of powers that may be used by the boards, this does not mean that they do not currently have that particular power. The honourable member has indicated his dissatisfaction with the level of detail provided in this previous response, and therefore I will provide further explanation.

The existing arts acts have been drafted and amended over a 60-year period. This has, not surprisingly, resulted in a large degree of variance in how the clauses, including powers, are written, in addition to the powers provided by the incorporating provisions in each act. He will see that the powers and functions sections include phrases such as 'the board may, for example', or 'exercise any other power that is necessary for or incidental to the performance of its functions'. Such phrases give the necessary power to undertake a wide range of activity related to the operation of an artistic or cultural institution.

It is on this basis that I am able to confirm that all of the arts agencies currently have the power to undertake the activities questioned by the Hon. Rob Lucas, such as sell or supply food or drink, charge entry fees, accumulate and dispose of collection items, and exercise their power within or outside the state. Given that the bill does not create any material change to the board's powers, it could be asked: why make these changes?

The lack of clarity in the current acts creates additional work for the boards, Arts SA and the Crown Solicitor's Office. It is not uncommon for an arts board to need to seek advice from the government regarding whether it can undertake a specific activity. While the answer is invariably yes, for the reasons I have explained, it is prudent for the board to seek formal confirmation before embarking on a new strategy.

This situation is created because the powers section in the majority of the arts acts does not sufficiently reflect the activities undertaken by arts and cultural organisations in a modern environment. Therefore, as part of the present exercise to introduce clear, consistent and contemporary governance arrangements, it was obviously sensible to incorporate a more extensive and relevant list of powers.

As advised in my previous response, the powers set out in section 6 of the Adelaide Festival Corporation Act 1998 provided the model for the provisions included in the bill. This list provides a helpful guide for the boards and should minimise the need to seek advice in future. It should be noted that the powers clause opens with 'the board may, for example, do one or more of the following:', indicating that the list of powers is neither prescriptive nor exhaustive.

There was also a question relating to whether the chair or the board expressed concern to the government in relation to any proposed changes in the bill. The arts governance review, from the outset, included an extensive consultation process. Throughout the project, boards and other stakeholders have been kept informed, had the opportunity for input and been provided with responses to queries raised.

An initial advice letter was sent to each board chair and chief executive in February 2009. The letter provided an overview of the project and indicated that consultation meetings would be scheduled. In March and April 2009, Arts SA met with the chair and chief executive of each organisation to discuss potential updates to the acts that had been identified in the review. It should be noted that the suite of changes discussed was at concept stage only. The purpose of the early consultation meetings was to discuss possible changes and to invite input from the boards as to any changes they might like to see.

Following these meetings, each organisation was provided with a list of changes that could apply to the relevant act and a written response was requested. The responses were then collated, questions raised by the boards were answered and amendments to some recommendations were made. The updated suite of recommendations was then submitted to the Minister for the Arts and the Minister Assisting the Premier in the Arts, for consideration.

The next round of consultation occurred in October 2009. When the initial draft of the bill was circulated to the boards, it was their first opportunity to examine the drafting of specific clauses. This process resulted in several queries from boards, most of which were satisfied by some explanation. Some queries resulted in adjustments to sections of the bill.

A final draft of the bill was then circulated in February 2010. This version incorporated amendments from the previous round of consultation and some further changes identified by parliamentary counsel. As with the previous round, some queries were received and these were answered.

The consultative process during the development of this bill has been thorough and has dealt with some complex issues. In a speech on this bill, Mrs Redmond acknowledged the consultation process undertaken. Each chair and chief executive has received a detailed explanation of the proposed changes and has been given multiple opportunities to provide feedback. Over this period, any concerns expressed to the government have been noted, responded to and, in some cases, resulted in changes to the proposed amendments.

In relation to a query about the ministerial direction and control clause for each act, the matter of the ministerial direction and control clause has been raised repeatedly. In response to this matter, I will come back to the fundamental purpose of the arts portfolio governance review.

However, I will first provide some clarification regarding the Crown Solicitor's Office advice, referred to in previous responses. I have been informed that the previous information to me could have been taken out of context, and I want to clarify that it should not be viewed as creating a precedent for other legislation. The Crown Solicitor's Office advice related to the arts statutory authorities, and concluded that each of the organisations is subject to some degree of ministerial direction and control.

The advice referenced, but did not rely solely on the fact that each act is committed to a minister. The legal advice examined other aspects of each act to determine the level of ministerial involvement, such as appointment of board members, approval of budgets and the power to issue certain directions or policies. The legal advice is only applicable to the acts of the arts portfolio. The confusion surrounding this matter is an excellent example of why the governance review was first conceived. As the arts acts have been drafted over a 60-year period, they contain a large degree of variance and do not clearly or adequately address the operations of an arts agency in today's environment.

It is inefficient and impractical to expect the boards or government administrators to repeatedly seek legal advice on the question of the extent of the ministerial control. This bill aims to introduce consistent, clear and contemporary governance arrangements across the arts portfolio. There is nothing revolutionary contained in the bill. It applies common sense and good practice and provides clarity for all parties. The proposed ministerial direction and control clause is appropriate for these organisations, and in a number of cases it actually reduces the degree of control provided for in the existing acts.

In assessing the appropriateness of the proposed clause it is useful to look at the basic principles which underlie the selection of the statutory authority approach as the governing model for these organisations. This model establishes them as government entities and affords them status, stability and protection in consequence. However, by creating statutory authorities the government is able to assign responsibility for certain matters to the boards of those authorities.

In the case of these organisations, artistic and cultural decision-making is deliberately removed from the government. As I have stated previously, the state's enduring cultural and artistic legacy should operate without political influence. The clause proposed in the bill limits the degree of ministerial direction and control to that of a general nature. Furthermore, it introduces the consistent exclusion of ministerial direction in relation to artistic or cultural matters across the whole arts portfolio. This approach is clear and proper.

The Hon. R.I. LUCAS: I thank the minister for the responses that she has just put on the public record. It clarifies, in part, the value of going through in some detail the provisions of statutes amendment type legislation because the advice that the minister has now just given is completely contrary, in significant parts, to the advice that the committee was given when last the committee met.

I want to refer, in particular, to the critical issue of ministerial power of control and the legal advice that had been provided, so we were told, to the government about those ministerial powers of control and direction. In doing so, I note that some time at around 9 or 10 o'clock this morning I received an email from minister Hill's office providing answers to a number of the questions I had put to the minister. Given the commitment to try to get through this bill this afternoon, I worked my way through the information that had been provided. The minister has now just read onto the record answers she has obviously been provided by minister Hill's office which replicate what I have received but which have, obviously, deliberately excluded the critical issue of the changed legal advice to the government in relation to the ministerial control and direction clause.

I had been provided it by way of email at 9.06am today but I do not think I opened it until after the Statutory Authorities Review Committee meeting, which concluded around 11 o'clock this morning. There is no reference to this critical issue of the changed legal advice that the government is now saying it has in relation to this issue. I think that is unacceptable. It is an example of the duplicity of this government, sadly, and the minister and his office that he has chosen to provide to a member of the committee answers to questions, but on this critical issue of the changed legal advice he has obviously decided not to, and it was only at the end of the minister's explanations there that it became apparent that the government was now changing its position in relation to, supposedly, the legal advice it received.

I want to make it absolutely clear what was the nature of the advice to the minister that the government gave us, gave this committee and gave this chamber in relation to this issue back on 29 September, because I read it onto the public record at that time. The question that I had put was: which arts bodies, as a result of the proposed legislation, will have greater ministerial control powers in their governing acts than under the current acts? The answer was as follows:

The arts acts in their current form have variation in the provisions referring to ministerial direction and control. These range from no reference to general or unqualified control. Some also have exclusions relating to artistic or cultural activity and decisions. In undertaking its initial research into government's frameworks, Arts SA sought advice from the Crown Solicitor's Office specifically in relation to the impacts of the various ministerial control provisions currently in use. The fundamental point in the CSO advice—

and I emphasise this—

was that, regardless of whether there is an explicit statement of ministerial control, the fact that an act is committed to a minister provides the minister with the degree of control over the body corporate established under that act. Such direction and control is unqualified unless there are provisions that limit it.

So, the government said to this committee that, if there were no specific powers of ministerial control and direction, the mere fact that the act had been committed to a minister gave that minister unqualified direction and control over that particular body. That advice was explicit. I will conclude the advice that the government gave at the time, as follows:

You will note that the clause included in the bill clarifies the fact that the boards are subject to ministerial direction and control but limits this to direction that is general in nature. It specifically excludes direction relating to artistic or cultural decisions. This approach preserves the board's independence in relation to artistic or cultural matters whilst maintaining an appropriate level of governance. In summary, there are no greater ministerial control powers arising from the proposed bill, rather it introduces a degree of qualification and exclusion for some institutions.

That advice was clear and unequivocal. It was the fundamental point in the Crown Solicitor's advice that the mere fact of committing an act to a minister gave that minister unqualified direction and control.

Having raised these questions during the committee stage, I suspect that someone within the Crown Solicitor's Office, perhaps at a more senior level, has reviewed the nature of the advice given to this parliament. You will recall, Mr Chairman, that during the last stages I indicated that I did not accept the nature of the advice that the government and the Crown Solicitor's Office gave us in relation to this.

In essence it said that a number of other bodies, which do not have any power of direction or control provisions in their legislation, would, on this interpretation of the legal advice, be subject to unqualified powers of control and direction by the minister simply by the mere fact of the government committing the act to the particular minister. I have not seen the advice that the minister has now read onto the public record, but what the minister has just said on the public record is quite different from the legal advice that this committee was given back on 29 September in terms of defence of the government's position.

The government has sought to muddy the waters even further by, in some bizarre and inexplicable way, saying that this advice really relates to only arts and cultural institutions. That is a legal nonsense. If the government is to argue, as it did two weeks ago, that the mere committal of an act to a minister means that the minister has unqualified powers of control and direction, that is unrelated to the issue of whether or not it is an arts or cultural body.

It is a general legal principle that the government used to justify its position two weeks ago. It has nothing to do with arts and cultural bodies specifically. There are other provisions where there are differences in relation to arts and cultural decisions that particular arts bodies may wish to take, or might take on a daily basis in relation to their normal activities; yes, they are specific. However, that was not the issue we were discussing two weeks ago.

That aspect of the advice which has been read onto the public record today is a legal nonsense—that in some way the advice of last week now relates only to arts and cultural institutions. I think the advice we have received today is closer to the situation in reality. As I said, it is completely contrary to the legal advice that the government put on the public record in defence of its position some two weeks ago.

This is an important issue in relation to these dozen or so arts bodies, but it also has wider implications in relation to many other statutes that relate to powers of ministers and their powers of control and direction over various statutory authorities, whether or not they are arts and cultural bodies. Now is not the time to take up those other issues. We can take those up at a later stage.

In thanking the minister for that particular response, as I said, I am concerned that at this late stage we have now been given this completely different legal advice and legal position of the government. As I said, I am also concerned at the duplicity of the minister (or his office) in not providing that answer in the general answers he provided to my office earlier this morning and having it just read onto the record at 3.30 this afternoon as we progress through the committee stage of the debate.

The Hon. G.E. GAGO: I want to absolutely reassure the honourable member that there is no conspiracy going on here to deprive him of information, as he is suggesting. In fact, I am advised that the Crown's advice in relation to the ministerial direction and control was only finalised at about lunchtime today, and we sought to pass on all other relevant responses that we had earlier in the day. Unfortunately, that information was not available and, as I said, that advice was only finalised at lunchtime today. So he can rest assured, he can sleep easy tonight, there is no conspiracy against him to deprive him of any relevant information.

The Hon. R.I. LUCAS: I have learned through bitter experience never to take the word of a Rann government minister on any issue, including that one.

The CHAIR: You might want to stick to the clause.

The Hon. R.I. LUCAS: I accept the fact that it is a question of trust, and who do you trust? I do not trust Rann government ministers in relation to most issues.

The CHAIR: You might want to stick to the clause in the bill and get on with it.

The Hon. R.I. LUCAS: I accept that is the advice that has been given to the minister in charge of the bill in this chamber. It is not her direct responsibility; it is the responsibility of minister Hill and his officers who have passage of the legislation. I do not accept the cute response that this has only just been concluded at lunchtime today. Indeed, even if it had been, they managed to email the earlier responses at 9.06 this morning.

If it was available at lunchtime today, emailing it to me at 1 o'clock today would have at least given the opposition two or three hours to consider what is now radically different legal advice and a radically different construction on the government's justification for changes to the minister's control on direction provisions for all these arts bodies. There is not much more that I can do at this stage about the changed government position. As I said, the government's justification now is closer to reality than its justification two weeks ago in terms of the nature of its legal advice.

I have some questions in relation to the clauses open now for the Libraries Act. In particular, I wanted to refer to clause 61 of the bill and section 35 of the parent act, which is the provision relating to the copies of materials to be lodged with the board and the parliamentary librarian. I seek confirmation from the minister that the current legislation (and the proposed legislation) does require a copy, not just of books or the division of a book, but newspapers, magazines, journals, leaflets, records, cassettes, films, videos, audiotapes, etc., produced by any South Australian to be made available to the State Library and the parliamentary library at the expense of the person producing the item.

Forgetting about books and things like that, in particular, let me refer to music CDs, videos and cassettes, and things like that, that are produced. In the consultation you have had with the parliamentary librarian, and the State Library more importantly, are they currently being provided at cost to the producers to the State Library and to the parliamentary library?

I would assume that the answer to that must be no, because of the sheer scale of what this provision actually outlines. Has there ever been a penalty imposed on a publisher under this? There are penalties proposed under the bill of $2,000 to $2,500; I suspect they are less under the existing act. Has there ever been an action taken by the library or the parliamentary librarian against people who have not produced said copies of documents, etc., to the library or the parliamentary library?

The Hon. G.E. GAGO: I have been advised that there has been no change between the bill and the existing act, so section 35(5) of the current act is the same as new section 35(6) in the bill. So there is no change, and in terms of the action taken and penalties, I will have to take that on notice.

The Hon. R.I. LUCAS: I am happy for that aspect to be taken on notice, but, in the discussion about amending the legislation to reflect contemporary practice, was the issue raised by the librarian or the parliamentary librarian that this provision is too wide and broad in its scope? It is ignored by many publishers in South Australia. Any of us who have any connection with the music industry in South Australia through family or acquaintances will know that there are literally thousands of music CDs, etc., produced every year, and I am absolutely positive that they are not being provided to the parliamentary library, and I suspect most, if not all, are not being provided to the State Library. Was this issue, when the acts were being amended, raised by the library or the parliamentary library in relation to a need to amend the provisions of the legislation?

The Hon. G.E. GAGO: I have been advised that the parliamentary librarian was consulted and she was not agreeable to reducing the breadth of the items supplied under legal deposit. However, what we have done is include in the bill new section 35(4), which gives the parliamentary librarian the power to approve receipt of material in electronic form.

The Hon. R.I. LUCAS: As I said earlier, I am happy for the minister to take on notice whether there have ever been any actions taken against people for non-provision of material, but it is an extraordinarily wide provision. I would have thought that, in particular in relation to the parliamentary library, as opposed to perhaps the State Library, there is an issue as to whether or not the parliamentary library should be provided with a copy of every record, cassette, film, video, audiotape, CD, DVD or other item made available to the public designed to store and facilitate the reproduction of visual images, sound or information. Certainly in my discussions with those who have had anything to do with the parliamentary library over the years, there is agreement that we have enough difficulty storing the newspapers and books that we currently have, let alone—

The Hon. J.S.L. Dawkins: There's no room for staff.

The Hon. R.I. LUCAS: And staff, as my colleague said—continuing to require all that I have just referred to, together with most of the other things, such as magazines published in South Australia, such as Rip It Up, and a whole variety of other things like that. Obviously, they all need to be provided to the parliamentary library as well as the State Library.

However, the minister's advisers and the parliamentary librarian have indicated a desire to keep all of those items required to be provided to the parliamentary library, and I am happy to leave it at that. They are all the questions I have in relation to the Libraries Act provisions.

Clause passed.

Clauses 51 to 65 passed.

Clause 66.

The Hon. R.I. LUCAS: The next package of amendments relates to the South Australian Country Arts Trust. Can the minister indicate whether the chair or the board of the Country Arts Trust expressed concerns about any provisions of the final legislation and, if so, what were the provisions and the concerns about the final government bill, if any?

The Hon. G.E. GAGO: I have been advised that they have expressed no concerns.

The Hon. R.I. LUCAS: Under Part 5, section 27—Regulations, new subsection (2)(b) is common to all of the arts bodies. It provides:

(b) provide for the admission, exclusion or expulsion of members of the public to or from premises of the Trust or a part of those premises;

I note that, under the current Libraries Act, there is that particular provision, which is reflected in the proposed bill, but I do not believe that this provision is in the current South Australian Country Arts Trust legislation.

First, can the minister confirm whether that is the case, that this power does not exist or that this specific regulation provision does not exist; if it does not exist, what is the reason for the inclusion of the power to exclude or expel members of the public from premises of the South Australian Country Arts Trust?

The Hon. G.E. GAGO: I have been advised that, currently, the Country Arts Trust has no regulations in relation to powers to expel and exclude, so this is a new provision, and it has been put in place should they need to use it.

The Hon. R.I. LUCAS: Has the Country Arts Trust had a problem in its recent past, when it has raised the need for such a power to exclude or expel persons from the South Australian Country Arts Trust premises?

The Hon. G.E. GAGO: I have been advised that we have sought to put in place common regulation-making powers across all arts acts.

Clause passed.

Clauses 67 to 72 passed.

Clause 73.

The Hon. R.I. LUCAS: The next section of clauses relates to the Film Corporation. I direct the minister's attention first to clause 78 of the bill, which relates to section 11 of the parent act, the South Australian Film Corporation Act. In terms of the current powers of the South Australian Film Corporation, it indicates that it 'shall have the sole and exclusive right to produce, or arrange for the production of, film for or on behalf of the government of the state or for and on behalf of any instrumentality or agency of the state or the government of the state'.

The current powers are therefore very broad; it gives considerable powers to the Film Corporation. The proposed bill reduces significantly the powers of the Film Corporation; in essence, it takes away the long-held monopoly right of the Film Corporation to solely and exclusively produce and arrange for the production of films for the state. In the discussions with either the chair or the board of the Film Corporation, did they at any time express concerns about the government's proposal to remove what is a monopoly power previously enjoyed by the Film Corporation in this area?

The Hon. G.E. GAGO: I am advised that it was, in fact, the request of the South Australian Film Corporation to remove that provision. The corporation saw it as something that was unnecessary and outdated, so it sought agreement from the government to remove it.

The Hon. R.I. LUCAS: Was there evidence that this provision was being ignored by some government departments and agencies, that is, that the Film Corporation had not been used by government departments and agencies? Certain information provided to me has been that some government departments and agencies had, contrary to the provisions of the South Australian Film Corporation Act, been engaging private sector film companies for the production of materials. Had that evidence been provided to the government and, if it had, what, if any, action had the government taken for what were breaches of the Film Corporation legislation?

The Hon. G.E. GAGO: I have been advised that that provision is something that was designed back in the 1970s and that it was simply no longer practical or relevant in today's setting; therefore, the Film Corporation asked for it to be removed.

The Hon. R.I. LUCAS: I appreciate that, but that was not my question. My question was: had the government been provided with evidence that government departments and agencies had been ignoring the provisions of the Film Corporation legislation and engaging private sector production companies to produce materials for them?

The Hon. G.E. GAGO: I have been advised no, not specifically.

The Hon. R.I. LUCAS: Given the answer 'no, not specifically', will the minister indicate, if it was not specifically, what sort of information the government was aware of in relation to breaches of this particular provision by government departments and agencies?

The Hon. G.E. GAGO: I have been advised that we based it on common sense and the fact that changes and improvements in technology have simplified filmmaking considerably, and the fact that the Film Corporation requested that we remove it.

The Hon. R.I. LUCAS: This is a fair indication of one of the problems this government has in terms of accountability and responding to what are just simple questions. Anybody who has had any experience with government operations in this state is aware of government departments and agencies that have been employing and utilising private sector production companies for materials that are then uploaded onto their websites. Why can the minister simply not answer a question honestly and say, 'Yes that is the case; there have been breaches; we are aware of them and we're going to fix them,' instead of the obfuscation that we have just heard from three endeavours to get a simple answer from the minister? It is an example of what is wrong with this government, not just in terms of handling this legislation but in handling many issues.

I cannot see what is the problem with the minister and the government's advisers acknowledging that there has been a problem. When one looks at the existing powers of the corporation, section 11(aa) says that the corporation:

shall have vested in it, by force of this section, all rights in any film made for or on behalf of the government of the state;

I am not a lawyer, but if one reads that, if other departments and agencies have been having a film made for or on behalf of those particular agencies, section 11(aa), which I think is not reflected in the proposed bill, would, as it says, give the government or the Film Corporation all rights in any film. That would be a very interesting legal dispute.

Members may be familiar with private production companies undertaking contracts with government departments and agencies. This provision has existed for many years—that aspect of what the minister is saying is correct—but the dilemma is in asking honest questions in this chamber, hoping to get marginally honest and genuine responses. The minister and her advisers are not prepared to acknowledge that there would appear to have been a problem, and the government is seeking to address it through this particular provision. I do not think there is any particular problem with the government acknowledging that there is an issue, and the passage of the legislation may well assist its resolution. Having asked the question three times and not getting a response, I do not intend to delay the committee stage any more on that particular provision.

However, section 11(ca) of the powers of the corporation provisions of the existing legislation states:

may, for the purpose of participating in any scheme for the financing of film production, advance moneys to any person, or persons, upon such security and such conditions as the Corporation thinks fit;

That clause does not appear to be reflected in the redraft of the powers of the corporation, but do the government's advisers believe that some other clause gives the government exactly the same power the Film Corporation currently has under section 11(ca) of the existing legislation? If the answer is yes, what particular provision of the bill does it believe gives it exactly that power?

The Hon. G.E. GAGO: I have been advised that it is section 11(e) of the act that provides similar powers.

The Hon. R.I. LUCAS: In relation to the current legislation for the Film Corporation, section 23—I think if I am correct in my reading, and I seek clarification from the minister—appears to be unamended by the proposed legislation; is that correct?

The Hon. G.E. GAGO: I have been advised that section 23 is to be removed.

The Hon. R.I. LUCAS: Thank you for that clarification. So, have the powers that the corporation has under the existing section 23 (which, as the minister has just clarified, is now to be removed) been completely replicated in the proposed powers under the government's bill, or are there particular powers under the old section 2 which the corporation had and which have now been removed in the proposed redraft?

The Hon. G.E. GAGO: I have been advised that they have been generally replicated, as they are also bound by the appropriation, finance and audit acts.

The Hon. R.I. LUCAS: I therefore specifically refer to section 23(2), which makes it a requirement that the funds of the corporation, that is all the funds of the corporation, 'shall be kept and maintained at the Treasury and shall consist of'. Is that provision—that is, the funds of the corporation shall be kept and maintained at the Treasury—still part of the proposed bill?

The Hon. G.E. GAGO: I will have to take that on notice.

The Hon. R.I. LUCAS: In my view, that is an important issue which, hopefully, can be resolved in the next stage as we complete the discussion of the legislation, but I am happy for the minister to take it on notice.

I think I omitted to ask this general question when we moved onto the Film Corporation clauses: did the chair or the board express any concerns about the final draft of the bill as it relates to the Film Corporation; if they did, what were their concerns?

The Hon. G.E. GAGO: I have been advised that, no, they did not raise any concerns.

Clause passed.

Clauses 74 to 82 passed.

Clause 83.

The Hon. R.I. LUCAS: Minister, did the chair of the South Australian Museum or the board express any concerns about the final proposed legislation as it relates to the museum and, if so, what were their concerns?

The Hon. G.E. GAGO: I have been advised that they did raise a number of queries. They sought assurance that the clause that related to managing premises, new section 12(b), covered control of common laneways in the cultural precinct. Our response was, 'We advise that the act does not determine which premises are vested.' They queried what responsibility the regulation-making powers relating to parking control placed on the board, and requested funding to cover cost implications. Our response was, 'We advise that this already exists in the current SAM regulations and is currently managed by the museum.' They queried the clause on submitting budget for approval and indicated that it was impossible to accurately predict costs and income. We advised:

Budget approval is already required under the funding agreement. Difficulties in accurate budgeting are an administrative not a legislative matter.

They queried the need for ministerial approval to expend funds and were advised that this is a common approach for publicly-funded organisations and standard in contemporary legislation and, therefore, to be included in the SAM Act. They appeared to be satisfied with those responses.

The Hon. R.I. LUCAS: Particularly in relation to the ministerial power of control and direction, as I indicated when I spoke previously, there had been some concerns from some arts bodies about the government's changes in relation to the power and control clauses. The minister has now acknowledged that the South Australian Museum board or chair raised those particular issues. In particular, were the concerns being raised by the South Australia Museum board that it would make it difficult for the board to be able to actually do what it believed it needed to do with the particular budget and governance requirements that government was requiring of it? If that was the case, what was the government's response to the concerns being expressed by the museum?

The Hon. G.E. GAGO: I have been advised that, in fact, there were two queries that related to budget procedures which were already dealt with under other provisions. They were already required to meet those standards so, in fact, there was no change to the requirements on the board and it simply provided better clarification.

The Hon. R.I. LUCAS: Did the chair or the board express concerns that the government might find difficulty in getting people prepared to serve on boards (such as the Museum) with the proposed changes that the government was including in the legislation?

The Hon. G.E. GAGO: In relation to concerns expressed about getting people to serve on the board, I am advised that that was done in the initial rounds, which were the conceptual stages only. In fact, the government withdrew the particular proposals relevant to those concerns early in the piece and the proposals never made it into the bill.

The Hon. R.I. LUCAS: I thank the minister for that advice. As I said, a couple of weeks ago there was considerable concern expressed (at least to me) by people who serve on a number of these arts bodies about aspects of the legislation. Not having been part of the consultation, I accept what the minister has indicated, that the concern was in relation only to draft proposals which have now been removed. I am not in a position to know the accuracy of that response, but I accept it on face value.

The current legislation for the Museum, the South Australian Museum Act (and this is one of the great joys of going through legislation in detail), contains a provision in section 16B which relates to the finding of meteorites. It provides:

The Board may offer and pay rewards—

(a) in respect of the delivery of a meteorite to the Board;

(b) in respect of any information leading to the finding or recovery of a meteorite.

So, Mr Chairman, if any of your constituents have such information they may well receive a monetary reward.

I would be interested to know—and I am happy for the minister take this on notice, because I guess she would not have an answer now—whether any reward has ever been paid under this provision; and, if so, how many? The section also provides:

A person who finds a meteorite in this State shall as soon as practicable after the finding notify the Board and furnish any other information that the Board may require.

I note that the penalty for not doing so is $100, so if you find a meteorite and do not notify the Museum as soon as practicable, you are subject to a penalty of $100. Could the minister advise how many people have been penalised? I suspect the answer is zip, but I would be interested to hear the answer. That is the existing legislation. The proposed legislation seems to have taken the issue of meteorites to a whole new level, if I can use that phrase. New section 22 provides:

Property in meteorites vests in Board

(1) The property in all meteorites to which this Part applies (other than those submitted for registration by the Board before 14 August 1981 and duly registered) is vested in the Board.

In my layperson's reading of that provision it seems that the government, and the Museum in particular, is now asserting its right, by this legislation, to the ownership of all meteorites in South Australia. It also provides:

(2) A person who acquires or disposes of a meteorite to which this Part applies must, not later than 1 month after the acquisition or disposal, notify the Board in writing of that fact.

If you do not, there is now a penalty not of $100 but of $2,500. The new section further provides:

(3) A court may, after convicting a person of an offence under subsection (2) in relation to a meteorite, order that the meteorite be forfeited to the Board.

(4) A person must not, without the authority of the Board—

(a) purport to sell a meteorite that is the property of the Board; or

(b) have, in his or her possession, a meteorite that is the property of the Board.

Maximum penalty: $2,500.

New subsection (7) provides:

In proceedings for an offence against this section, an allegation in a complaint that a meteorite to which the proceedings relate was, on a date specified in the complaint, the property of the Board will be taken to be proved in the absence of proof to the contrary.

So, that is a neat reversal of onus of proof in relation to the penalty provisions here.

I ask the minister: why is it that the government is now asserting the right of the Museum Board, in essence as I understand it, to own all meteorites in South Australia and provide now very significant penalties of up to $2,500 for persons who do not immediately forfeit their meteorites to the South Australian Museum?

The Hon. G.E. GAGO: I have been advised that all these provisions are the same as in the existing act. New subsection (7) is the same as section 18(2) in the existing act; the only difference is that the penalties have been increased.

The Hon. R.I. LUCAS: Has there been a problem in relation to meteorites in South Australia which has necessitated the increase of the penalties from $100 to $2,500? Has there been an issue in relation to meteorites and the Museum?

The Hon. G.E. GAGO: We have simply adjusted the penalties right throughout the bill to bring them in line with contemporary penalties.

The Hon. R.I. LUCAS: Has there been a problem in relation to the existing provisions of meteorites and the South Australian Museum, or is this just a general increase in penalties across the board and there is no particular issue in relation to meteorites and the South Australian Museum.

The Hon. G.E. GAGO: I have been advised no.

The Hon. R.I. LUCAS: As to the issue of regulations, I think the last arts body we were dealing with referred to the issue of prescribing fees for the parking of vehicles on premises of the board. There is a general provision now for this one (the museum act) and for all of them. Is the provision prescribing fees for the parking of vehicles at the museum in the existing act or regulations for the South Australian Museum, or is it a new provision for the South Australian Museum?

The Hon. G.E. GAGO: I will just ask the honourable member to clarify whether he means fees for parking or penalties.

The Hon. R.I. LUCAS: I think it is (2)(g)—prescribed fees for parking of vehicles.

The Hon. G.E. GAGO: I have been advised that the ability to prescribe fees is a new provision, and it is part of the standard regulation powers in all acts.

The Hon. R.I. LUCAS: I just want to clarify again: the minister has referred me to section 16A of the existing act in relation to the issue of meteorites. Section 16A(2) states:

Where a person was, immediately before the commencement of this Part the owner of a meteorite, he shall notwithstanding subsection (1) retain ownership of the meteorite.

Can I just clarify that the new provision now specifically refers to 14 August 1981? Is that the date on which that particular section of the South Australian Museum Act came into operation? I am assuming that is the case, but I just seek confirmation.

The Hon. G.E. GAGO: I have been advised that section 22(1) exempts those submitted before 14 August 1981.

The Hon. R.I. LUCAS: I understand that, but the minister said that this provision reflects exactly the same provision in the parent act. I am asking her to confirm that 16A(2) of the current act does not actually refer to a date. It says that, where a person was immediately before the commencement of this part the owner of a meteorite, he or she can own the meteorite. It would appear that at some stage when the act was amended previously it said, 'Okay, if you have owned a meteorite before such and such a date, it is yours, but after this date we assert our right to own it.' I am just confirming—it would appear to be the case—that the date of 14 August 1981 that the minister has provided in her proposed bill is in fact the date on which that part of the existing act, that is section 16A(2), commenced.

The Hon. G.E. GAGO: I have been advised that part 2A came into effect in August 1980 and we assume that that is about where the date came from.

The Hon. R.I. LUCAS: That does not appear to make sense, if that is the case. If the minister's advisers have said that, in essence the meteorite provisions are exactly the same as they currently exist, and if the minister is now saying that the cut-off date is actually a year earlier, we would appear to have an unknown area between August 1980 and 14 August 1981. What the proposed bill is saying to us is that the property of all meteorites is vested in the board other than those submitted for registration by the board before 14 August 1981 and duly registered. So, the proposed bill would appear to be saying that the museum owns all meteorites, other than those that might have been owned by private citizens, having gone through a process prior to 14 August 1981.

The Hon. G.E. GAGO: I have been advised that it is section 16A(2) of the existing act that states that it will come into effect within one year after the commencement of this part; so, August 1980 and then within one year, 1981. That might account for the year.

Clause passed.

Clause 84 passed.

Clause 85.

The Hon. R.I. LUCAS: Has the chair or the board of the State Opera expressed any concerns about the final proposed bill as it relates to the State Opera of South Australia and, if so, what were those concerns?

The Hon. G.E. GAGO: I have been advised that they raised no concerns.

The Hon. R.I. LUCAS: Does existing section 21 of the State Opera of South Australia Act relating to staffing arrangements remain a part of the proposed government legislation?

The Hon. G.E. GAGO: I have been advised yes.

The Hon. R.I. LUCAS: Section 21, relating to staffing arrangements, provides:

(5) The employing authority is, in acting under this section, subject to direction by the Minister.

(6) ...no Ministerial direction may be given by the Minister relating to the appointment, transfer, remuneration, discipline or termination of a particular person.

Section 21(11) provides:

The State Opera does not have the power to employ any person.

Can the minister explain to those of us who do not understand the operations and staffing arrangements of the State Opera what specifically is the provision that will remain in the proposed legislation which states that the State Opera does not have the power to employ any person?

The Hon. G.E. GAGO: Section 21 does not appear in the bill because it is unchanged. I have been advised that it continues to exist.

The Hon. R.I. LUCAS: I understand that because the minister confirmed that earlier. However, as I look at the staffing arrangements, for example, the appointment of authorised officers, powers of officers, etc., the existing section, which the minister says does not get changed—I accept that—provides:

The State Opera does not have the power to employ any person.

I am just asking for an explanation of what exactly that means. We have provisions which relate to staffing arrangements of the State Opera, yet there is a provision which the minister says stays, which states that the State Opera does not have the power to employ any person.

The Hon. G.E. GAGO: I have been advised that section 21(1) defines that the employing authority may employ staff. The employing authority has been assigned to the Chief Executive of the Department of the Premier and Cabinet, who has, in turn, then delegated that authority to the Director General of State Opera.

The Hon. R.I. LUCAS: The employing authority for State Opera is the Director General now, on delegated authority from the CEO of DPC?

The Hon. G.E. GAGO: I am advised yes.

The Hon. R.I. LUCAS: So, the provisions that talk about the employing authority being subject to direction by the minister, etc.—all those sort of issues—they would still relate to the CEO of DPC, or do they relate to the Director General of the State Opera?

The Hon. G.E. GAGO: We will have to take that question on notice.

The Hon. R.I. LUCAS: When the parliament debated this issue of employing authorities for government departments and agencies two or three years ago, I think I flagged some of the potential issues and complications there would be further down the track for those in the public sector and for those of us in control of legislation that governs the public sector. I think this might be one of the many issues we are going to have to address, but I am happy for the minister to take that on notice.

I do note (and we have had this debate before in relation to the ministerial powers of control and direction) that the general government provision is that the minister will have a general power of control and direction; that is, no ministerial direction can be given in relation to certain staffing issues. When I asked some questions earlier, the minister's advisers referred me to the Public Sector Act, which we debated only back in 2009, for a number of other bodies where these particular provisions were included in their parent act. So, we have a mixture in this statutes amendment bill.

Having now had a chance to look at the Public Sector Act after our last debate, I refer the minister to the actual drafting only in 2009, which parliamentary counsel included in the legislation the parliament has approved. It states:

employment decision means an administrative decision relating to the employment of a person, including an administrative decision relating to the engagement, promotion, transfer, remuneration, entitlements or termination of employment of a person and the decision to take disciplinary action against a person;

In particular, I refer the minister to the specific use by parliamentary counsel, and approved by parliament, of two different aspects of employment decisions: one is remuneration and one is entitlements. Parliamentary counsel has obviously seen a difference between a remuneration package for a public sector employee and the entitlements of a public sector employee. I think one can immediately think of potential differences between remuneration entitlements, and that is why parliamentary counsel has drafted that. Under this bill and the existing act, it states:

However, no ministerial direction may be given by the minister relating to the appointment, transfer, remuneration, discipline or termination of a particular person.

It specifically excludes entitlements. As I read this, it relates not just to the State Opera but also to some of these other arts bodies: the minister has a general power of control and direction, but cannot issue a ministerial direction in relation to remuneration; but that power has excluded and continues to exclude specifically the issue of entitlements for those public sector employees.

Given the current debate about remuneration entitlements for public sector employees, I ask the minister why, specifically in the proposed legislation, the government has now restricted the drafting just to remuneration and excluded entitlements, which had previously been included in the Public Sector Act only debated in 2009 by this parliament.

The Hon. G.E. GAGO: Basically we are being asked about clauses that remain unchanged by this bill, and therefore we are unable to comment on drafting decisions made in respect of the public sector bill that has been passed by this parliament.

The Hon. R.I. LUCAS: I think anyone interested in the entitlements and remuneration packages of public sector employees would not find that a very comforting response from the minister. In this one we have a statutes amendment bill, which is under this claim of blanket coverage for all agencies for uniformity. As I said two weeks ago, there is a great danger, when governments come saying that this is just simplifying and making consistent the legislation for public sector employees, that if you do not go through these provisions, in the end you do not know what you are voting for. The minister's response would give no comfort to any public sector employees in this area.

It is not just the State Opera, as there are some of these provisions for other bodies as well. Just a year ago parliamentary counsel—the government (it was their legislation)—specifically referred to differences between remuneration and entitlements as an employment decision definition, with all the flow-on ramifications of that. Two weeks ago, when I raised questions, the minister said, 'Go to the Public Sector Act; that's the Bible as it relates to some of these bodies; others, we have to look at the legislation.' The minister said that we will have uniformity in all of this. Yet with some of them we will have entitlements being protected from a ministerial direction, but with others the minister has a general power of direction, as she says, and there are these exclusions for certain things.

As it relates to remuneration, the minister, he or she, cannot direct in relation to remuneration but, in relation to entitlements, clearly there will be the power, given the minister's legal advice, because the minister says there is a general power of control and direction and these provisions exclude various issues such as remuneration, termination, discipline, etc.

Specifically, for some of these bodies and public sector employees, entitlements have now been left out of what the government said was going to be a template which applied to all public sector employees and all of these arts bodies. On the basis of consistency, it will be the same. Yet, what the minister is saying is that, clearly it will be different in relation to the protections for some public sector employees within some of these particular agencies.

As I said at the outset, I am no expert on arts bodies and arts organisations, but the minister has been asked, and frankly I think the response is unacceptable in terms of explaining why, given that she said we need to have the same provisions applying to all arts bodies, she is now saying, 'Well, okay if they are different in essence, that is because they are in the existing legislation. I am being asked about existing legislation and that was done back in 2009 or many years ago or whatever it happens to be.'

So, I leave on the public record the concerns in relation to that. The minister and the government have obviously taken this as a deliberate policy decision for some reason. They are not prepared to defend the reasons why they have taken this deliberate policy decision. I suspect they have not discussed it with the PSA, or indeed other employee organisations that represent the workers in these particular areas, whether it is what used to be the AJA, the media and arts industry alliance, or whatever it might happen to be called these days—the employee organisations that represent those particular public sector workers.

If the minister is not going to provide any greater detail there is nothing much more I can do at this stage. We can move to the next package of amendments which relate to the final arts body, which is the State Theatre Company.

Clause passed.

Clauses 86 to 89 passed.

Clause 90.

The Hon. R.I. LUCAS: The final arts body that the legislation covers is the State Theatre Company. Did the chair of the State Theatre Company or its board express concerns about any aspect of the final government bill, and, if so, what were those concerns?

The Hon. G.E. GAGO: I have been advised no.

Clause passed.

Remaining clauses (91 to 94), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.