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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-16 Daily Xml
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STATUTES AMENDMENT (ARTS AGENCIES GOVERNANCE AND OTHER MATTERS) BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for the City of Adelaide) (16:26): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

South Australia's arts companies and cultural institutions make an immeasurable contribution to our State's culture, heritage and identity. In many respects these organisations lead the nation, and indeed the world, in their collections, research and artistic endeavours.

South Australia is unique in establishing so many of its major arts bodies as statutory authorities, providing them with both status and protection as key government entities. Each organisation has its own governing Act, is staffed by public sector employees and has a board or trust offering a range of expertise.

The operational structure of the organisations is tailored to the distinct needs of each. However, while the overarching governance model is the same, there is significant variation between the Acts.

The Premier asked Arts SA to review the arts portfolio statutes to determine whether there was scope for, and benefit in, standardising sections of the Acts. The review concluded that the variation between Acts was not surprising given that they were created at different times over a sixty year period. Further the review identified that there was an opportunity to introduce a number of consistent and contemporary arrangements across the portfolio to address out of date drafting and governance arrangements.

The examination of the Acts included research of governance models used interstate and overseas and referenced current legislation in South Australia. The expertise of Crown Solicitor's Office and Parliamentary Counsel was also drawn upon. The result was an initial list of fifty areas for potential change within the Acts. Consultation with the arts boards and other key stakeholders led to some additions and refinements to the proposed changes.

The object of the Statutes Amendment (Arts Agencies Governance and Other Matters) Bill 2010 is to introduce a suite of governance arrangements for the major arts bodies. The Bill does not change the operations or objectives of the organisations. Rather it seeks to streamline their relationship with government and ensure a consistent, clear set of powers and functions for each board or trust.

The Acts included in the Bill are:

Adelaide Festival Centre Trust Act 1971

Adelaide Festival Corporation Act 1998

Art Gallery Act 1939

Carrick Hill Trust Act 1985

South Australian Country Arts Trust Act 1992

History Trust of South Australia Act 1981

South Australian Film Corporation Act 1972

South Australian Museum Act 1976

Libraries Act 1982

State Opera of South Australia Act 1976

State Theatre Company of South Australia Act 1972

The Bill introduces consistent provisions for board structure, such as board size and the appointment and removal of members. A board appointment term not exceeding three years and limited to a nine year maximum will be prescribed. A gender balance provision of a minimum of two men and two women is also introduced for all of the boards.

Some boards currently have two or three positions reserved for representative groups such as subscribers and employees. This can limit the ability to achieve the ideal mix of expertise on each board. The boards have identified alternate ways for some stakeholder groups to be represented so that a number of representative positions are no longer needed. Key representative positions, such as the Local Government members on the Libraries Board, are to be retained.

Board proceedings are also to have common guidelines addressing quorum size, meeting procedures, conferencing, delegations and sub-committees, consistent with 21st century business practice. In addition the Bill introduces a requirement for each board to meet at least six times per year.

The revised board powers section has been drawn from several existing Acts, providing each of the agencies with powers relevant to their activities in today's environment. The powers section is tailored where required. For example, all are given power to charge admission or entry but Art Gallery of South Australia, South Australian Museum and State Library of South Australia can only charge for special events, thereby preserving free access to their permanent collections. Clauses which provide greater protection for official titles and logos have also been introduced.

In order to streamline government monitoring of the arts organisations, consistent requirements relating to budgets, annual reporting and Ministerial control are included. These provisions are aimed at maintaining an appropriate balance between the Government's responsibility to safeguard its investment in the organisations and each Board's ability to manage its operations. All of the Acts will have provisions dealing with authorised officers and their powers. For six of the Acts, this was simply a process of elevating to the level of the Acts provisions currently contained in regulations under those Acts. In other cases the powers are new and will be available to the Boards if required.

The regulation making powers under each Act have been reviewed and made consistent across the board. This was also done with a view to underpinning the regulations under those Acts with robust regulation making powers.

The Bill also contains some changes to individual powers. For example, the clause in the South Australian Film Corporation Act relating to automatic production rights and copyright for all South Australian Government films is to be deleted. This power achieved its 1970s objective of giving the Film Corporation the ability to control much of the departmental film production in the State but, in today's world of digital technology, such a prescriptive provision is no longer feasible or indeed necessary.

In opening up these Acts for changes the opportunity for a statute law revision and a general 'freshen up' was created. The Bill incorporates a revision of style and language, including use of gender neutral terms, updating of penalties and the removal of sections considered redundant.

In summary the Bill introduces consistent and contemporary governance arrangements, clarifies the obligations and powers of the boards and streamlines administration.

I commend the Bill to Members.

Explanation of Clauses

General remarks

This Bill seeks to achieve consistency in governance arrangements and other matters across the various arts agencies. The Acts that have been amended in this Bill are:

Adelaide Festival Centre Trust Act 1971

Adelaide Festival Corporation Act 1998

Art Gallery Act 1939

Carrick Hill Trust Act 1985

History Trust of South Australia Act 1981

Libraries Act 1982

South Australian Country Arts Trust Act 1992

South Australian Film Corporation Act 1972

South Australian Museum Act 1976

State Opera of South Australia Act 1976

State Theatre Company of South Australia Act 1972

The following standard provisions have been incorporated into all of the above Acts. These provisions are substantially the same in each Act, varying only in minor ways as necessary to reflect differences between the Boards and their specific functions. The standard provisions are as follows:

The Board—this Part deals with governance provisions relating to the Board (also referred to as 'Trust', 'Corporation' or 'Company' depending on the particular Act) and contains the following clauses:

Establishment or continuation of the Board- each Board is either established or continued.

Composition of Board—each Board will have a maximum of 8 members including at least 2 women and 2 men.

Conditions of membership—Board appointments will be for renewable terms of up to 3 years with a 9 consecutive year maximum.

Proceedings—the Board must meet at least 6 times in each year.

Validity of acts and proceedings—acts and proceedings of the Board will be valid despite any vacancy in membership or a defect in a member's appointment.

Ministerial direction and control—each Board will be subject to the general direction and control of the Minister, however, the independence of the Board is retained in matters of artistic, scientific, historical nature or content (as may be relevant to each particular Board) of objects, works, collections, performances and other events or activities and in other matters.

Committees—committees may be established by the Board.

Delegation—the Board may delegate powers or functions—such delegations must be by instrument in writing.

Conflict of interest under Public Sector (Honesty and Accountability) Act—Board members will be exempted from certain conflict of interest provisions under the Public Sector (Honesty and Accountability) Act 1995.

Common seal of the Board and execution of documents—this is a standard provision regarding formalities of execution of documents by the Board.

Functions—the functions of the Board are set out.

Powers—the existing powers of the Board are incorporated into a comprehensive list of powers of a natural person that the Board may exercise.

Staffing arrangements—staffing arrangements are preserved.

Annual budget—the Board must prepare an annual budget for approval by the Minister.

Accounts and audit—accounting requirements are set out including instructions and scrutiny by the Treasurer and the Auditor General.

Annual report—an annual report must be forwarded to the Minister before 30 September in each year.

Authorised officers—this Part elevates to the level of the Act, provisions currently dealt with by regulation for 6 of the 11 arts agencies. For the 5 agencies that currently do not have these powers, the powers will be available should they be required. The Part provides for:

Appointment of authorised officers—this clause deals with the appointment of authorised officers and declares that all police officers are authorised officers for the purposes of the Act.

Powers of authorised officers—the powers of authorised officers include the power to remove or exclude persons from premises of the Board or to seize objects that an authorised officer reasonably suspects may be used to contravene the Act (or regulations under the Act).

Hindering etc authorised officers—this will be an offence attracting a penalty of up to $2,500. Some of the ways in which a person might hinder an authorised officer include obstructing an authorised officer, or failing to comply with a requirement or direction of an authorised officer.

Official insignia—this Part deals with matters relating to official insignia of the Board including:

Interpretation—official insignia is defined, as are the circumstances in which goods will be taken to be marked with official insignia.

Official titles and logos—official titles under which the Board may conduct its operations are declared and powers are included to declare other official titles and logos.

Unlawful use of official insignia—official insignia are vested in the Board. It is an offence attracting a maximum penalty of $20,000 to use official insignia without the authorisation of the Board.

Seizure etc of goods marked with official insignia—authorised officers may seize goods marked with official insignia reasonably suspected to be unauthorised.

Miscellaneous—this Part includes miscellaneous provisions as follows:

Gifts etc—each Board may receive and deal with land and gifts of personal property and is exempted from the obligation to pay stamp duty on any such land.

Ministerial delegation—functions or powers of the Minister may be delegated under the Act—such delegations must be by instrument in writing.

Approvals by the Treasurer—may be specific or general and conditional or unconditional and they may be varied or revoked at any time. (Such approvals and are required before the Board acquires or deals with shares or securities issued by bodies corporate or borrows money or obtains other forms of financial accommodation.)

Regulations—the regulation making powers have been bolstered in order to provide a solid footing for the kinds of regulations that may be required under each Act. There will be regulation making powers to—

provide for the use, care and protection of objects, works, collections or any other property of, or under the care or control of, the Board; and

provide for the admission, exclusion or expulsion of members of the public to or from premises of the Board or a part of those premises; and

prohibit disorderly or offensive behaviour on premises of the Board; and

prohibit or regulate eating, drinking, smoking or the consumption of unlawful substances on premises of the Board or a part of those premises; and

prohibit or regulate any other conduct or activities for the purposes of—

(i) maintaining good order, and preventing interference with events or activities conducted, on premises of the Board; and

(ii) protecting property under the care or control of the Board; and

prohibit or regulate the driving, parking or standing of vehicles on premises of the Board; and

provide for the approval by the Board or an authorised officer of any act or activity that would otherwise be prohibited under the regulations; and

prescribe fees for the parking of vehicles on premises of the Board and provide for their payment and recovery; and

provide that the owner and driver of a vehicle driven, parked or left standing in contravention of the regulations are each guilty of an offence and provide or exclude defences in relation to any such offence; and

provide for procedure in relation to alleged offences against the regulations dealing with the driving, parking or standing of vehicles; and

provide for evidence or burden of proof in proceedings for offences against the regulations dealing with the driving, parking or standing of vehicles; and

provide for the management (including disposal) by, and vesting in, the Board of unclaimed property; and

prescribe penalties not exceeding $1,250 for breach of any regulation.

The opportunity has also been taken to make other isolated changes in addition to the standard provisions. Examples of these changes are as follows:

Section 35 of the Libraries Act 1982 has been amended in order to enable the Parliamentary Librarian to exempt the provision of material to the Parliamentary Library and to enable the provision of material to the Parliamentary Librarian and the Board in electronic form in restricted circumstances.

The Bill removes powers in section 11(a) and (aa) of the South Australian Film Corporation Act 1972 that currently entitle the Corporation to sole and exclusive right to produce, or arrange for the production of, film for or on behalf of the government and to ownership of all rights in any film made for or on behalf of the government. These changes reflect a more flexible approach to production and ownership since the early days of the Corporation.

Another noteworthy change in several of the Acts is the removal of sections that fix particular persons to positions, for example 'Secretary to the Board' (under the State Opera of South Australia Act 1976 and State Theatre Company of South Australia Act 1972), 'Secretary to the Trust' Adelaide Festival Centre Trust Act 1971 and 'Director' (under the Art Gallery Act 1939 and South Australian Museum Act 1976). Removing the references to positions provides Boards with greater flexibility in relation to appointments and functions of appointees.

Schedule 1, Parts 1 to 11 of the Bill includes statute law revision amendments to the Acts, updating archaic language and obsolete references.

Schedule 1, Part 12 of the Bill includes transitional provisions that—

(a) will enable current members of Boards to continue in office for the balance of their terms, thus enabling a smooth transition to the new model (with the only exception being that the terms of office of subscriber and employee members on the State Theatre Company Board will cease on the commencement of the Act); and

(b) provide for names, titles and logos declared under the Adelaide Festival Corporation Act 1998 to continue as if declared under the new provisions; and

(c) provide for the appointment of authorised officers or persons under the respective regulations to continue as if appointed under the new provisions.

Debate adjourned on motion of Hon. D.W. Ridgway.


At 16:26 the council adjourned until Tuesday 28 September 2010 at 14:15.


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