HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-30 Daily Xml
Contents
Pdf Xml

STATUTES AMENDMENT (ARTS AGENCIES GOVERNANCE AND OTHER MATTERS) BILL

Committee Stage

In committee.

(Continued from 28 September 2010.)

Clause 1.

The Hon. G.E. GAGO: I have received a response in relation to the three questions previously asked by the Hon. Rob Lucas. In relation to his question about ministerial control powers, I have been advised that the Statutes Amendment (Arts Agencies Governance and Other Matters) Bill 2010 introduces to all the acts a standard set of clauses regarding ministerial direction and control.

The Hon. Rob Lucas asked whether this results in greater ministerial control powers under the current acts. The arts acts, in their current form, have variation in the provisions referring to ministerial direction and control. These range from no reference through to general or unqualified control; some also have exclusions relating to artistic or cultural activity and decisions. In undertaking its initial research into governance 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's advice was that, regardless of whether there is an explicit statement on ministerial control, the fact that an act is committed to a minister provides the minister with a degree of control over the body corporate established under the act. Such direction and control is unqualified unless there are provisions that limit it.

The CSO also provided an explanation of the difference between general and unqualified control. The use of the term 'general' limits the minister's power to direction of a general nature and intends that the minister not be involved in the day-to-day management of the authority. Conversely, where the clause states 'subject to the direction and control' and is therefore unqualified, the minister's powers are not limited in any way. The clause proposed in the bill limits the degree of ministerial direction and control to that of a general nature.

Furthermore, it introduces a consistent exclusion of ministerial direction in relation to artistic or cultural matters across the whole arts portfolio. A fundamental aim in establishing these organisations as statutory authorities with governing boards was to keep artistic and cultural decisions at arm's length from the government of the day. It is common practice in this country for the states' enduring cultural and artistic legacy to operate without political influence.

The clause to be inserted in each arts act clarifies existing powers of the minister and preserves the artistic and cultural freedom that the statutory authority model was selected to ensure. Therefore, in response to the question posed by the Hon. Rob Lucas, there is no increase in ministerial control over any arts board arising from the proposed bill.

In relation to conflict of interest provisions being more or less onerous, I have been advised that some of the arts acts currently include provisions relating to conflict of interest obligations for boards. These provisions are redundant as the boards are subject to the conflict of interest requirements of the Public Sector (Honesty and Accountability) Act 1995 or, in the case of the Adelaide Festival Centre Trust, the Public Corporations Act 1993. Therefore, the bill removes the existing redundant clauses in the arts acts.

Several of the arts agencies acts were, as a result of the Public Sector Act 2009 and the Public Sector (Honesty and Accountability) Act 1995, amended earlier this year to insert a cause which provides a specific exclusion from conflict of interest. An example of such a clause is to be found in section 8 of the South Australian Country Arts Trust Act 1992, which reads:

A trustee will not be taken to have a direct or indirect interest in a matter for purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the trustee has an interest in a matter that is shared in common with those engaged in or associated with the arts industry generally or a substantial section of those engaged in or associated with the arts industry.

The bill retains these clauses wherever they are currently included and inserts the clauses in the Art Gallery Act 1939 and the Carrick Hill Trust Act 1985 for the sake of consistency. Therefore, in response to the question posed by the Hon. Rob Lucas, the conflict of interest provisions are neither more nor less onerous under the proposed bill; they remain unchanged.

In relation to his third question about particular provisions involving engagement of consultants and contractors and entering into contracts and the like, I have been advised that the Hon. Rob Lucas is seeking an indication of whether the arts boards are to be given greater powers than exist under the current acts in relation to those particular provisions.

As a body corporate, each of the arts boards currently holds the powers of a natural person. These powers include the provisions listed by the Hon. Rob Lucas such as engagement of consultants, entering into contracts and acquisitions or purchases. While the bill inserts a detailed powers clause into each arts act, this does not mean that they are new powers.

Whether specific or not, the boards are currently able to undertake these activities because they hold the powers of a natural person. Council is aware that the aim of this bill is to introduce a set of consistent clauses. The standard powers section proposed in the bill is derived from the existing provision set out in section 6 of the Adelaide Festival Corporation Act 1998.

When drafting the bill, parliamentary counsel used this clause as a model for the clause, as it best reflects the activities of an arts or cultural organisation in a contemporary environment. The detailed list of powers provides a helpful guide for boards but is not prescriptive or exhaustive. The powers and provisions contained in the bill do not expand existing board powers; they merely provide greater guidance and clarification.

The Hon. R.I. LUCAS: I thank the minister for the answers to the questions that I put at the second reading and, given the nature of those responses, it will be necessary to explore the individual issues during the committee stages of the debate. As I said, I had hoped we might have been able to expedite the committee stages if we had been able to receive a detailed analysis of the existing provisions and the new provisions. Whilst I thank the minister for the general nature of the government's position, it nevertheless leaves unanswered a significant number of individual questions.

That was the first general point I would make: I thank the minister for those answers. The second one is that I do note in the minister's response, which she has now placed on the record, the following advice she has received, and that is that the fundamental point in the CSO advice was that, regardless of whether there is an explicit statement on ministerial control, the fact that an act is committed to a minister provides the minister with a degree of control over the body corporate established under that act. Such direction and control is unqualified unless there are provisions that limit it.

That is an issue I guess we could spend time exploring here, but I will not. Certainly, if one accepts that advice (and I must say I remain to be convinced of the accuracy of that advice), what it seems to indicate is that for a number of government bodies and agencies which are not subject to ministerial control—I can think of, for example, bodies like Funds SA and a number of others which do not have specific powers of control and direction clauses on those bodies—the mere fact of the commitment of the act to the minister gives the minister an unqualified power of direction and control.

That would appear to be completely contrary to all previous advice this parliament has received in relation to these provisions. Further on, the government's legal advice gives further explanation of what 'unqualified control' means:

Conversely, where the clause states 'subject to direction and control' and is therefore unqualified, the minister's powers are not limited in any way.

So the government's advice, which is placed on the record—this is its advice from crown law, so I do not offer any specific criticism of the minister here—would seem to be, as I said, contrary to all advice that I believe parliament has received over many years in relation to a number of government boards and agencies which do not have specific powers of control for ministers over them. It would appear now the government's advice is that, where that does not exist, the mere fact that a minister is responsible for that agency means they have unqualified direction and control over the agency. That is an issue we will obviously need to explore on a number of other occasions.

The second general point I make in response to the minister's answers to questions is, I guess, a cautionary note (and I referred to this in the second reading explanation) and that is that, whilst there is obviously some good purpose to be achieved by having uniformity in legislation, when you drop a curtain of uniformity across a whole range of different bodies and agencies, it is inevitable, in my judgment, that there will be some unintended or unforeseen consequences.

A previous example where I have issued words of caution where a similar approach has been adopted was in relation to legislation of an industrial relations nature as to who the employing authority for public servants was to be as a result of federal government industrial relations changes. That was some legislation that went through the parliament which amended dozens and dozens of state acts; similarly, the honesty and accountability provisions.

Parliaments can be seduced by the magnificence of the rhetoric that one needs uniformity—all provisions must be exactly the same—in relation to the statutes that apply to various bodies and agencies. Sometimes parliaments do not give the attention to the statutes amendment bills that perhaps parliaments ought to just to assure themselves as an institution that there are no unintended consequences in relation to these provisions. That was the purpose of the questions I put at the second reading.

I indicate that I remain to be convinced that there are no changes to the level of powers that ministers will have over some of these art agency bodies. That will be one of the issues, as we move through the committee stage, I will explore with minister for each of the agencies that are covered by this statutes amendment legislation.

In terms of how we progress through this, there are a number of clauses that relate to each agency body, Mr Chairman; we are obviously in your hands. Subject to your agreement, Mr Chairman, and that of the minister, in relation to the first package of amendments relating to the Adelaide Festival Centre Trust, I intend to direct a number of questions to the minister in the first instance in relation to the Adelaide Festival Centre Trust.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.I. LUCAS: As I said, my first questions will be in relation to the Adelaide Festival Centre Trust, and there are a number of clauses under that general topic. Under the existing Adelaide Festival Centre Trust, and I understand it is section 21(6), there is the following provision:

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

Can I confirm that under the proposed changes that particular provision will remain a restriction on the powers of the minister?

The Hon. G.E. GAGO: I have been advised that nothing in section 21 is being amended by the bill.

The Hon. R.I. LUCAS: The existing section 28(3) of the Adelaide Festival Centre Trust Act, which relates to a series of provisions in relation to the budget, provides:

The Trust shall not, without the consent of the Minister, incur any expenditure that is not authorised by an approved budget.

Can the minister indicate to me whether under the proposed changes 23(5) is intended to be a direct replacement for existing section 28(3)?

The Hon. G.E. GAGO: I have been advised that, yes, it is a direct replacement.

The Hon. R.I. LUCAS: New section 23(6) provides:

The Trust is not required to have the approval of the Minister with respect to the expenditure of money received by the Trust by way of a testamentary or other gift.

Is it correct that under the current legislation the trust is required to have approval of the minister in those circumstances?

The Hon. G.E. GAGO: I have been advised that the current act is silent in relation to this matter and, therefore, it can be assumed that they do not need approval with the new bill then clarifying that they now do.

The Hon. R.I. LUCAS: The minister's answer does not make sense. I think the new bill says that the trust is not required to have the approval of the minister. The minister has just said the new bill now requires the trust to have the approval of the minister.

The Hon. G.E. GAGO: Yes, you are quite right. I have been advised it is clarifying that you do not need approval.

The Hon. R.I. LUCAS: Well, let's clarify that absolutely. It is clear under the proposed bill that what the government is intending is that the trust does not have to have the approval of the minister. Is it the minister's advice that currently the trust does not have to have the approval of the minister or it does have to have the approval of the minister to act in this particular way?

The Hon. G.E. GAGO: I have been advised that the current act is silent on the matter, therefore it can be assumed that they do not need approval. The new bill is clarifying that they do not need approval.

The Hon. R.I. LUCAS: Has either the chair of the Adelaide Festival Centre Trust or the board of the Adelaide Festival Centre Trust expressed any concerns about any of the proposed changes in the government's bill to the existing act?

The Hon. G.E. GAGO: I have been advised that the chair, the board and the CEO have been consulted throughout the development of this bill. They have seen the recommendations and also two versions of the draft bill that were developed, and they have endorsed the bill that is before us today.

The Hon. R.I. LUCAS: I accept what the minister has said, and it may well be that she chooses not to answer the question, but my question was: has the chairman or the board expressed any concern about any of the proposed changes in the bill to the existing statute that relates to the Adelaide Festival Centre?

The Hon. G.E. GAGO: I have been advised that to the best of our knowledge, no, concerns about the changes have not been raised by the chair or the board. Throughout the consultative process, as I outlined, queries have been raised by the chair and/or the board. Responses have been given in relation to those queries, and it is believed that they were satisfied with those responses.

The Hon. R.I. LUCAS: I thank the minister for that, and I intend to ask the same question for each of the bodies, and the reason I do so is that information provided to me is that at least some boards did express significant concerns about some of the proposed changes but in the end signed off on them on the basis that they were told that the provisions needed to be the same for all of the arts bodies and agencies. As I said, at least in two cases I have been advised that boards reluctantly or grudgingly signed off on the provisions on that basis.

That is why, as we go through each of them, I intend to ask whether individual boards or their chairs expressed concerns about the proposed changes in the bill because clearly, potentially, I suppose, under freedom of information and at estimates committee hearings in the near future, some or all of those concerns, if they are accurate, may well come to light. That is the reason I put the questions to the minister.

With that, I am happy for the clauses that relate to the Festival Centre Trust to now be passed from my viewpoint unless other members have questions and to move to the clauses for the festival corporation which I think start with clause 15.

Clause passed.

Clauses 5 to 14 passed.

Clause 15.

The Hon. R.I. LUCAS: Has either the chair of the Adelaide Festival Corporation or the board expressed concern to the government in relation to any proposed changes in the bill as it relates to their existing legislation?

The Hon. G.E. GAGO: I have been advised that, to the best of our knowledge, no.

The Hon. R.I. LUCAS: Under the Adelaide Festival Corporation, is there a provision in the existing legislation that mirrors the specific ban to which I referred earlier under the Adelaide Festival Centre Trust, namely:

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

The Hon. G.E. GAGO: I am advised that the existing staffing arrangement provisions have been untouched.

The Hon. R.I. LUCAS: My specific question is: is there an existing staffing arrangement provision or subsection which mirrors the subsection to which I have referred? On my quick reading, I was unable to find one, but the minister obviously has access to people who are more familiar with the legislation than I am. I am asking whether there is a specific provision in the Adelaide Festival Corporation Act which mirrors the one to which I referred earlier in the Adelaide Festival Centre Trust Act.

The Hon. G.E. GAGO: I have been advised that, yes, there is a mirror provision in the existing act, section 20A—Staffing arrangements, subsection (6).

The Hon. R.I. LUCAS: I am happy to move now to the next set of clauses relating to the next agency—the Art Gallery—which start at clause 29.

Clause passed.

Clauses 16 to 28 passed.

Clause 29.

The Hon. R.I. LUCAS: Has the government received any indication of concern from either the chair of the Art Gallery board or the board itself about any of the proposed changes in the government bill?

The Hon. G.E. GAGO: I have been advised that, again, questions were raised and these questions were responded to. It is believed that they were satisfied with our responses.

The Hon. R.I. LUCAS: I take it that when the minister says that questions were raised, that is the government's euphemism for 'concerns were raised in relation to some provisions'. Is the minister prepared to indicate what were the concerns of the chair of the Art Gallery board, or the board itself, in relation to the government's proposed bill?

The Hon. G.E. GAGO: I have been advised that questions were raised. An example of one of the questions asked was the applicability of the conflict provisions to board members, and they were advised that board members are in fact bound by conflict provisions within the Public Sector Act. That is an example of one of the questions asked. I am advised that we do not have a list of all the questions asked by this organisation, but the sorts of questions were of a similar nature and, as I stated, it is believed that they were satisfied with the answers we gave.

The Hon. R.I. LUCAS: On my reading of the existing Art Gallery Act, I could not find any general provision that gave a general power of ministerial control or direction to the Art Gallery Board. I seek confirmation from the minister that, on my reading of the act, that is accurate. If it is, this is an example of a board where there is no existing ministerial power provision and we will now have in clause 33, on page 48 of the bill, a proposal for there now to be a general ministerial control provision which says:

(1) Subject to subsection (2), the board is subject to the general control and direction of the minister.

(2) No Ministerial direction can be given—

(a) as to the artistic nature or content of—

(i) objects, works or collections held or promoted by the board; or

(ii) performances or other events or activities conducted or promoted by the board; or

(b) as to the manner in which the board is to deal with the testamentary or other gift; or

(c) as to any advice or recommendation the board makes or is required to make to the Minister.

Subject to the minister's answer to the first question, this would appear to be an example of where an existing arts agency does not have in its legislation an overarching general power of ministerial control, and the government is seeking to implement ministerial control provisions. The minister's response, as I understand it, is that they are quite happy with that, have signed off on it and have agreed to it. Is it correct that there is no general ministerial power in the existing act? Have there been any issues of concern in relation to the management of the Art Gallery that has led the government to want to institute ministerial power and control clauses as it relates to the actions of the current Art Gallery Board?

The Hon. G.E. GAGO: I have been advised that the current act is silent on this matter and, therefore, it is as outlined in my answer to the honourable member's question on ministerial control powers at clause 1. Therefore, the advice from the CSO would apply; that is, regardless of whether or not there is an explicit statement on ministerial control, the fact that an act is committed to a minister provides the minister with a degree of control over the body corporate established under that act. Such direction and control is unqualified unless there are provisions that limit that. The act now seeks to clarify that and remove any confusion or ambiguity that may have existed.

The Hon. R.I. LUCAS: Indeed, that is the point I made before. I think the government's legal advice is extraordinary if that is the construction to be given to us; that is, according to the government's legal advice, any board that does not have a reference to ministerial control and direction—where there is no reference to it at all—the mere fact of it being committed to a minister means that the minister has unqualified power of control and direction over that particular board or authority.

Obviously, that advice does not relate to just arts agencies, which we are addressing here. As I said before, there is a significant range of other government bodies and agencies where ministers do not have the power of control and direction in clauses for those bodies. Certainly the parliament has, on virtually all occasions, accepted that provision and its appropriateness, because in some cases it is deemed to be inappropriate for a politician or a minister to have control over a particular body or agency and they have been truly independent.

Now the minister says that the legal advice is that, if there is no reference to it, the mere fact of the committal of an act to a minister—which has to be the case; obviously, all acts are committed to some minister, as someone has to take responsibility for annual reports and a variety of other things in terms of public reporting—gives unqualified powers of control and direction to the minister over that particular body or agency.

Other than noting that advice, I do not intend to delay the committee stage of this debate. However, I think it is something that all members will need to bear in mind as we go back and look at similar statutes that relate to a number of other non-arts related bodies and agencies, where this particular government advice will throw a whole new light over governance arrangements for those bodies or agencies.

My second question relating to government and ministerial powers is: is it correct that under the existing legislation there is no ban on ministerial involvement in staffing issues?

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

The Hon. R.I. LUCAS: Is it correct that under the government's proposed legislation there is no proposal to institute a similar subclause, which would place a ban or restriction on minister's involvement in staffing issues?

The Hon. G.E. GAGO: I have been advised that to put in such a mirror clause is unnecessary, as the Art Gallery staff are employed under the Public Sector Act and therefore all staff provisions are drawn from that particular act, not this one.

The Hon. R.I. LUCAS: Can the minister indicate that, for example, the staff under the Adelaide Festival Centre Trust Act are not employed under the PSM Act?

The Hon. G.E. GAGO: I have been advised that is correct.

The Hon. R.I. LUCAS: So, perhaps to assist the committee, can the minister's advisers indicate which staff of these arts bodies are employed under the PS Act and which ones are not employed under the PSM Act?

The Hon. G.E. GAGO: I have been advised that those bodies that have employees who are employed under the PSM Act include the Art Gallery, Carrick Hill, State Library and SA Museum.

The Hon. R.I. Lucas: And all the others are not?

The Hon. G.E. GAGO: Yes.

The Hon. R.I. LUCAS: We are doing this on the run, obviously. Can the minister's advisers indicate what is the equivalent provision under the Public Sector Management Act that they have used as the protection against ministerial involvement in staffing matters?

The Hon. G.E. GAGO: I don't have the answer for that and therefore I am happy to take that on notice and bring back a response.

The Hon. R.I. LUCAS: As we are working on the run here, I am trying to look through the Public Sector Act because the particular provision to which I have referred states:

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

I am not able to turn up the particular provision, but the minister has agreed to take it on notice. I am not sure whether we are going to be able to conclude all of the committee stages of the debate today. If we are not going to, then I am happy for that to be taken on notice and to come back to that if I need to in relation to the minister's answer. The existing legislation of the Art Gallery board has a specific provision under section 18(1)(a), which provides:

The board must observe any policy or direction made or given by the minister in relation to the exercise of powers conferred by subsection(1)—

which is just a specific area of power of board to lend exhibits. Is that provision either maintained or replicated in a different form of words in the legislation that the committee is considering?

The Hon. G.E. GAGO: I have been advised that a similar provision as in the act is in the bill under new section 17(2)(d).

The Hon. R.I. LUCAS: I thank the minister for that. Under the proposed legislation—this is a consistent provision with all the agencies, and I thought I would address it first with the Art Gallery—there is a general provision which allows under the powers of the board to charge and collect fees for admission to exhibitions and activities conducted on special occasions or for special purposes. Can I just have the minister confirm that this does not give the Art Gallery board any wider power than already exists in relation to the charging and collection of fees?

The Hon. G.E. GAGO: I have been advised that, no, it does not.

The Hon. R.I. LUCAS: Under new paragraph (n), the bill proposes to give the power to sell or supply food and drink, including liquor, books, programmes, brochures, films, souvenirs and other things in connection with events and activities conducted or promoted by the board. Can I seek confirmation that that is no more or less than the existing provisions, in particular the inclusion of liquor supply and sales under the powers of the Art Gallery board?

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

The Hon. R.I. LUCAS: Under new section 17(4), the bill provides:

The board is not obliged to accept or keep material that is not, in its opinion, of sufficient artistic, historical, cultural or other interest to justify its collection or preservation under this act.

Is this an existing provision, or is there a change in the proposed powers of the board in relation to whether or not they keep materials? Is that an existing provision? Does it replicate an existing provision, or is there some change there in relation to the existing powers?

The Hon. G.E. GAGO: I have been advised that this provision has been changed slightly, but only in terms of providing better clarification. The advice I have received is that in the existing arrangements the Art Gallery has had powers both to acquire and to get rid of materials. The new bill simply clarifies that.

The Hon. R.I. LUCAS: There is a similar provision for a number of these arts agencies under new subsection (5), which provides: 'The board may exercise its powers within or outside of the state.' I seek the minister's advice on the legal interpretation of the direction of these powers outside of the state of South Australia.

The Hon. G.E. GAGO: The advice I have received is that the Art Gallery has always had this power to operate outside the state, because it has the powers of a natural person. An example of one of those activities might be mounting exhibits that are on tour interstate.

Clause passed.

Clauses 30 to 37 passed.

Clause 38.

The Hon. R.I. LUCAS: Has the government received from the board of the Carrick Hill Trust any concerns about the proposed changes in the government legislation?

The Hon. G.E. GAGO: I have been advised that the Carrick Hill Trust did raise some questions, in particular, in relation to transitional provisions and that adjustments were made to the transitional provisions in this bill to accommodate those concerns. The advice I have received is that the trust was satisfied with that response.

The Hon. R.I. LUCAS: Again, I will just clarify this issue of ministerial involvement. There is no provision for a ban on ministerial involvement in staff and, as I understand it from previous answers, that is because the staff of the Carrick Hill Trust are employed under the Public Sector Management Act.

The Hon. G.E. GAGO: I am advised that that is correct.

The Hon. R.I. LUCAS: I guess I should clarify that: the ban is included in the Public Sector Management Act rather than in the Carrick Hill Act. The existing legislation under section 13(6) provides:

The Trust shall not, without the consent of the Minister, sell or otherwise dispose of any object owned by it that is of artistic, historical or cultural interest.

Has that particular provision been changed so that the trust can now dispose of objects without the consent of the minister?

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

The Hon. R.I. LUCAS: Can the minister indicate the reasons for the removal of the requirement for the consent of the minister that exist under the existing legislation?

The Hon. G.E. GAGO: I am happy to take that on notice. I do not have the details to that question with us today.

The Hon. R.I. LUCAS: I thank the minister for that. Under the bill new section 15(4) the trust is not obliged to accept or keep material that is not in its opinion of sufficient artistic, historical, cultural or other interest to justify its collection or preservation under this act. Is it correct that that particular provision does not exist under the existing Carrick Hill Trust Act?

The Hon. G.E. GAGO: I am advised that it is in the current act under section 13(4).

The Hon. R.I. LUCAS: I thank the minister for that. The bill, again similar to the Art Gallery, provides: 'The Trust may exercise its powers within or outside of the State.' While I understand the minister's argument that the Art Gallery may well mount national exhibitions, what is intended in relation to the Carrick Hill Trust—and, as I understand it, it is essentially about the preservation of Carrick Hill—that would require it exercising its powers outside the state of South Australia?

The Hon. G.E. GAGO: I have been advised that an example of work they might want to conduct interstate could include, for instance, their sourcing an item of historical significance. That source being interstate, they might travel interstate to collect that item.

The Hon. R.I. LUCAS: I am happy to move to the next section of the bill which is the History Trust, which I think starts at clause 42.

Clause passed.

Clauses 39 to 41 passed.

Clause 42.

The Hon. R.I. LUCAS: Has the government received any advice from the chair of the History Trust or the board of the History Trust of South Australia expressing concerns about any of the government's proposed changes in the legislation?

The Hon. G.E. GAGO: I have been advised that the questions were raised by the History Trust and there were a number of questions around whether the board needed some of the new provisions outlined in the bill such as the out-of-session decision-making provisions and the ability to teleconference. The advice was that, even though the History Trust may not currently use or see a need for those provisions, nevertheless, putting those provisions in the bill did not mean that the History Trust was required to use them if it did not choose to.

The Hon. R.I. LUCAS: I am assuming that the minister is saying that, having expressed those concerns, the History Trust board has signed off and agreed with the proposed changes now?

The Hon. G.E. GAGO: I have been advised that to the best of our knowledge their concerns were satisfied by the responses we gave them.

The Hon. R.I. LUCAS: Under the powers provisions in the proposed legislation, there are two provisions I referred to earlier. One is the capacity to regulate and control admission and charge and collect fees. I just ask the minister to confirm that that replicates existing powers that the History Trust has.

The Hon. G.E. GAGO: I have been advised, yes, it does. Also, I now have an answer to the honourable member's question about the employment conditions and where the provision was mirrored in the Public Sector Act. I have been advised that the general employment processes and conditions of an employee of a public sector agency are provided for in part 7 division 3 of the Public Sector Act under sections 45 to 57.

The Hon. R.I. LUCAS: I thank you for that. Time does not allow me quickly to look at that, so perhaps I can do that once we have reported progress. In relation to the History Trust, section 14(2)(k) which relates to selling or supplying food and drink including liquor, can the minister confirm that that is an existing power particularly in relation to the sale and supply of liquor by the History Trust of South Australia?

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

The Hon. R.I. LUCAS: I am happy to move now to the next agency, the Libraries Board, which I think is clause 50.

Clause passed.

Clauses 43 to 49 passed.

Clause 50.

The Hon. R.I. LUCAS: Has the government received any advice from the chair of the Libraries Board, or the Libraries Board itself, expressing concerns about the proposed changes in the legislation?

The Hon. G.E. GAGO: I have been advised that they did not raise any concerns and are supportive of the bill.

The Hon. R.I. LUCAS: In relation to the Libraries Board, I have a specific set of questions which are based, in part, on an issue raised in parliament many years ago. I think it was in 2005 and 2006. I asked questions in the council about the actions of government officers in relation to the State Library and about powers and functions. Unsurprisingly, after five years, I still do not have an answer to those two questions.

I specifically refer now to the new section, 'Powers of authorised officers'. The example to which I referred was in relation to a dispute that arose between two workers at the State Library. Mr Chairman, you would probably remember the example I gave in relation to the issue in December 2005, where there had been a disagreement and one worker ended up being suspended on full pay for saying 'bullshit' and also words along the lines of, 'Don't do anything difficult; you might ruin your gorgeous complexion,' to her superior. The worker was suspended on full pay and sent home pending a disciplinary inquiry.

I asked a series of questions about the way the Libraries Board and the various arts agencies handled that disputation. I think that officer was on leave on full pay for a year or two before the issue was actually resolved one way or another. However, as I said, I still do not have a reply from the government to those questions. What arose in relation to all of that was the powers of people to exclude people from library premises, such as the State Library on North Terrace. During that particular dispute, the employee who, in her view was being persecuted—I guess management had a different view—attended at the State Library.

A complaint from an officer was raised with her and, eventually, a letter was sent from Mr Greg Mackie, who was the Director of Arts SA, indicating that she was not allowed on the State Library site at all. The employee wrote back to Mr Mackie asking for reasons and, at the time of me raising the question, she indicated that she did not receive a reply. I raised issues in relation to the Libraries Act powers and the regulations under the Libraries Act. I am seeking clarification of the proposed powers of authorised officers. Are they exactly the same as the powers of authorised officers under the existing legislation, or have they been changed in any way?

The Hon. G.E. GAGO: I have been advised that the section pertaining to the authority of officers currently sits in regulations within the existing arrangements. I have been advised that it will now be lifted from the regulations and placed into the act or the bill.

The Hon. R.I. LUCAS: I have not had the chance today to cross-reference the legislation with the existing regulations, so I put the question to the minister: is it her advice that these powers of authorised officers are exactly the same as the powers under the existing libraries' regulations or have they been changed in some way; and, if so, how have they been changed?

The Hon. G.E. GAGO: I have been advised that it remains the same.

The Hon. R.I. LUCAS: Will the minister therefore explain how it is that under these existing provisions the director of Arts SA holds the power to ban someone from the State Library?

The Hon. G.E. GAGO: I have been advised that the type of matters the honourable member refers to are staffing matters and in this case are dealt with under the Public Sector Act.

The Hon. R.I. LUCAS: My question is: where is the responsibility for staffing matters in relation to staff of the Libraries Board? I would assume that there is a CEO, general manager or whatever is the official designation—a head honcho—in relation to library staff (chief librarian, perhaps). Who can ban someone from a public institution such as the State Library when, in this case, the person was involved in a personal dispute with another staff member?

The Hon. G.E. GAGO: I have been advised that these employees are public servants employed under an administrative unit. That administrative unit is currently operating under the Department of the Premier and Cabinet and, therefore, staffing matters relating to them would follow the hierarchy of that particular department.

The Hon. R.I. LUCAS: I take it that the minister's advice is that it is a decision of Arts SA as to who should be banned from a public library in South Australia, not the chief librarian or whoever the senior library-related staff member is. It is the decision of the senior arts bureaucrat in the department as to whether or not someone is banned from a library.

The Hon. G.E. GAGO: In relation to matters pertaining to the bill before us, I have been advised that the decision regarding taking formal action again relates to a staffing matter, and staffing decisions fall back to the particular staffing hierarchy and accountability and reportability of the particular department.

The Hon. R.I. LUCAS: Could I ask whether the minister is prepared to report progress at this stage? I would like to take further advice and compare the existing library regulations to which she has referred and the provisions in the act, as well as taking advice from my constituent on the circumstances that related to the use of the powers of authorised officers. Given the hour, and the fact that I received the advice of the minister's officer in relation to ministerial powers issues only late last night, that I have gone through only the first seven or eight arts agencies statutes and have not had the opportunity to go through the parent acts of the remaining four or five in the bill to do the comparisons, is the minister prepared to report progress and conclude this measure when next we meet?

The Hon. G.E. GAGO: I understand that we need to deal with a number of messages as well this evening, so I am happy to report progress. Clearly, as the honourable member is asking a set of questions of all the individual agencies, and a number of them are similar to one another, before we report progress I would ask that, if there are other, specific questions outside of those core or routine questions, he put those on record now so that we can come back prepared with information to answer his queries.

The Hon. R.I. LUCAS: I am very happy to try and assist the minister and expedite the committee stages but I am not aware of any specific issue other than this Libraries Board issue which, as I said, I raised some four or five years ago. There are certainly the same general questions that relate to all the remaining agencies. Given that I have not had the opportunity to go through the parent acts of the remaining four or five agencies, I am not in a position at the moment to say definitively that there are no other specific issues that relate to those. If there were, I suspect they would be small in number. As I said, I would expect that we should be able to conclude the committee stage on the next day of sitting.

Progress reported; committee to sit again.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT