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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL COLLECTING INSTITUTIONS LEGISLATION AMENDMENT BILL
2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications, Cyber Safety and the Arts,
the Hon Paul Fletcher MP)
NATIONAL COLLECTING INSTITUTIONS LEGISLATION AMENDMENT BILL
2020
OUTLINE
The purpose of the National Collecting Institutions Legislation Amendment Bill 2020 (the
Bill) is to amend the enabling legislation of six National Collecting Institutions (NCIs) to
provide them with broader investment powers than are currently permitted by the Public
Governance, Performance and Accountability Act 2013 (PGPA Act), improve efficiencies
and address longstanding, but minor, administrative inconsistencies between the six Acts.
The Acts which will be amended by the Bill are as follows:
Australian National Maritime Museum Act 1990 (ANMM Act)
National Film and Sound Archive of Australia Act 2008 (NFSA Act)
National Gallery Act 1975 (NGA Act)
National Library Act 1960 (NLA Act)
National Museum of Australia Act 1980 (NMA Act)
National Portrait Gallery of Australia Act 2012 (NPGA Act)
The PGPA Act governs how Corporate Commonwealth Entities may invest funds but makes
no distinction between funds received from government or those sourced from other parties.
This means the investment of donated revenue to the NCIs, directly or through their
established foundations, is currently restricted to low risk (and hence low return) options.
These restrictions act as a disincentive to donors, as institutions are unable to generate
competitive rates of return on donated funds, reducing potential value for money. Schedule 1
to the Bill will provide NCIs with powers to develop an investment policy for donated
revenue and invest for the long-term benefit and improved financial sustainability of those
institutions. "Donated revenue" in this document includes funds received by donation, gift or
bequest, interest earned on those funds, and funds received from the disposal of gifts.
Schedule 2 to the Bill also makes administrative amendments to address certain
inconsistencies between the enabling Acts for each NCI. These amendments seek to
modernise and better streamline the legislation to improve efficiency and productivity. They
include provisions to standardise delegation powers, the power to appoint a person as an
acting member of a governing body, and the maximum length of service for members (which
will include any period of acting); remove ministerial approval requirements related to routine
financial transactions and asset disposals; and remove reporting requirements that are either
inconsistent with the other NCI related Acts or superfluous since the introduction of the
PGPA Act.
Financial impact statement
The Bill is not expected to have any significant impact on Commonwealth expenditure or
revenue.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Collecting Institutions Legislation Amendment Bill 2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The purpose of the Bill is to amend the enabling legislation of six National Collecting
Institutions (NCIs) to enable broader investment powers than those currently permitted by the
Public Governance, Performance and Accountability Act 2013 (the PGPA Act) for donated
revenue.
The amendments will provide NCIs with powers to maximise donated revenues through
investment types that yield greater returns, supporting improved financial sustainability and
delivering long-term benefits to those institutions. This focus of actively seeking
philanthropic support aligns with the Government's broader position of encouraging NCIs to
increase their financial sustainability through non-government sources of funding.
The Bill also makes administrative amendments to address certain inconsistencies between
the enabling Acts of each NCI. These amendments seek to modernise and better streamline
the legislation to improve efficiency and productivity. They include provisions to standardise
delegation powers and the maximum length of service for governing body members; remove
ministerial approval requirements related to routine financial transactions and asset disposals;
and to remove reporting requirements that are superfluous since the introduction of the PGPA
Act.
The Acts within scope are:
Australian National Maritime Museum Act 1990 (ANMM Act)
National Film and Sound Archive of Australia Act 2008 (NFSA Act)
National Gallery Act 1975 (NGA Act)
National Library Act 1960 (NLA Act)
National Museum of Australia Act 1980 (NMA Act)
National Portrait Gallery of Australia Act 2012 (NPGA Act)
Human rights implications
The Bill engages with the following rights:
Right to enjoy and benefit from culture in Article 27 of the International Convention on
Civil and Political Rights (ICCPR);
Right of all persons to take part in cultural life in Article 15 of the International
Convention on Economic, Social and Cultural Rights (ICESCR); and
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Right to work in Article 6 of the ICESCR
Right to enjoy and benefit from culture
Article 27 of the ICCPR and Article 15 of the ICESCR recognise the right to participate in,
enjoy and benefit from cultural life. The Bill promotes the realisation of this right by
supporting the financial sustainability of six major public cultural organisations and their
capacity to deliver a wide range of cultural opportunities and experiences for the benefit of all
audiences.
The National Collecting Institutions are at the heart of Australian cultural life, its national
memory and identity. They each conserve, interpret and facilitate engagement with our
history, culture and national identity. They provide world-class venues, exhibitions and
resources for all Australians and extend access to collections for people living in rural,
regional and remote areas through digital access, touring and outreach programs.
The powers provided by the Bill to these institutions to develop an investment policy for
donated revenues and invest accordingly will enable them to increase their financial
sustainability through non-government sources of funding, for the long-term benefit and
enrichment of those institutions, their audiences and their employees.
Right to work
Article 6 of the ICESCR recognises the right to work. The Bill promotes the realisation of the
right to work by supporting the financial sustainability of six major public cultural
organisations which provide important employment opportunities for museum and gallery
professionals and support staff.
The National Collecting Institutions are a significant employer within the cultural sector.
Within the institutions themselves they provide unique employment opportunities, from
specialist and technical roles at the highest professional levels, to a broad range of ancillary
roles through associated operations and commercial enterprises. More broadly, they support
contemporary cultural practice and inspire future generations of artists, historians, film-
makers and story-tellers.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights.
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NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 provides that the Bill, when enacted, may be cited as the National Collecting
Institutions Legislation Amendment Act 2020.
Clause 2: Commencement
2. Clause 2 provides for the Act to commence on a single date to be fixed by proclamation.
However, if the provisions do not commence within the period of 6 months beginning
on the day this Act receives the Royal Assent, they commence on the day after the end
of that period.
Clause 3: Schedules
3. Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended
or repealed as set out in the applicable Items in that Schedule, and any other Item in a
Schedule has effect according to its terms. There are two Schedules to this Bill.
SCHEDULE 1 - Investments
4. Schedule 1 introduces amendments to the enabling legislation for six National
Collecting Institutions (NCIs) to permit broader types of investment of donated
revenues than is otherwise permitted by the Public Governance, Performance and
Accountability Act 2013 (PGPA Act).
Australian National Maritime Museum Act 1990 (ANMM Act)
Item 1- Subsection 45(2)
5. Item 1 would amend subsection 45(2) of the ANMM Act to provide for an additional
exception to the limits on how the money of the Australian National Maritime Museum
(ANMM) may be applied, as outlined in subsection 45(1). Subsection 45(1) provides
that the money of the ANMM may only be applied in payment or discharge of the costs
incurred by the ANMM in the performance of its functions or the exercise of its powers
and in payment of remuneration and allowances to any person under that Act.
6. Subsection 45(2) provides an exception to the requirement in subsection 45(1) and
enables the ANMM to invest money, that is not immediately required for the purposes
of the ANMM, in accordance with section 59 of the PGPA Act. Section 59(1) of the
PGPA Act governs how Commonwealth Corporate Entities may invest funds. It
provides that investments of relevant money for which the entity is responsible are not
permitted unless the money is not immediately required for the purposes of the entity,
and the investment is in bank deposits; securities guaranteed by the Commonwealth,
State or Territory; other investments approved by the Minister for Finance; or any other
form of investment prescribed by the Rules.
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7. Item 1 would provide that money of the ANMM that is not immediately required for the
purposes of the ANMM may also be invested in accordance with subsection 45(3). The
details of subsection 45(3) are introduced by Item 2.
Item 2 - At the end of section 45
8. Item 2 would add subsections 45(3) and 45(4). Subsection 45(3) describes the
categories of money that the ANMM may invest otherwise than in accordance with
section 59 of the PGPA Act provided that money is not immediately required for the
purposes of the ANMM. Subsection 45(3) allows money accepted as a bequest or a gift;
money derived from the disposal of property that has been given, devised, bequeathed
or assigned to the ANMM other than by the Commonwealth, or money received from
an investment made under subsection 45(3) or from the disposal of such an investment,
to be invested in any form of investment. This would expand the range of investment
options available to the ANMM for such money, some of which may support greater
returns than those permitted by the PGPA Act. A note to subsection 45(3) refers to
subsection 50(2) for obligations of the ANMM as a trustee of a trust. It is intended that
subsection 45(3) would also apply to moneys received by any foundation associated
with the ANMM.
9. Subsection 45(4) would require that an investment under subsection 45(3), or disposal
of such an investment, must be made in accordance with an investment policy in force
under section 46, as provided for by Item 3.
10. All other revenue of the ANMM, including moneys appropriated to the ANMM by the
Parliament as well as own-source revenue from retail and commercial activities, would
remain subject to section 59 of the PGPA Act and therefore not in scope for broader
investment.
11. It is also intended that donated revenue or other property held by the ANMM on trust,
or accepted by the ANMM subject to a condition, should not be able to be dealt with
except in accordance with the obligations of the ANMM as trustee of the trust or as the
person who has accepted the money or other property subject to the condition, as the
case may be, provided by subsection 50(2).
12. Most NCIs actively undertake fundraising activities, in some cases through foundation
bodies established for such purposes, to support the operations of the institution. The
intention is that the provisions of the Bill would equally apply to subsidiaries of the
NCIs, including foundations established as separate legal entities. This focus of actively
seeking philanthropic support aligns with the Government's broader position of
encouraging NCIs to increase their financial sustainability through non-government
sources of funding. Those NCIs without foundations may still receive philanthropic
support by trust, or directly as cash.
13. The PGPA Act makes no distinction, however, between the investment of funds
received from government or those sourced from other parties. This means the
investment of donated revenue received by the NCIs, directly or through their
foundations, is restricted to low risk (and hence low return) options. These restrictions
act as a disincentive to donors as institutions are unable to generate competitive rates of
return on donated funds, reducing potential value for money.
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14. The Bill does not seek to compel the ANMM or any other NCI to undertake broadened
investment activity. The provisions would not rely on a separate foundation being
established by the NCI for investment purposes, but would apply equally to separate
foundations where these are established.
Item 3 - After section 45
15. Item 3 inserts section 46 which relates to an investment policy which investments under
subsection 45(3) or the disposal of such investments must accord with. Subsection 46(1)
would provide that the ANMM Council may formulate a written policy which outlines:
the investment strategy of the ANMM; benchmarks and standards for assessing the
performance of the ANMM's investments; and risk management of such investments. It
also notes that for variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901 (AI Act).
16. If an investment policy is formulated under subsection 46(1), subsection 46(2) would
require that a copy must be published on the website of the ANMM; subsection 46(3)
would require the Council to conduct periodic reviews of the policy; subsection 46(4)
would require the ANMM to comply with the policy; and subsection 46(5) would
prevent a transaction being rendered invalid by a failure to comply with the policy.
17. Investing beyond the limitations established by the PGPA Act would be at the discretion
of the governing bodies of each of the NCIs. Where an NCI opts to invest, the Bill
would require the development of an investment policy. Governing bodies, as the
Accountable Authorities, would have ultimate responsibility for the formulation and
review of, and compliance with, the investment policy of their institution and any
investment decisions undertaken in accordance with their investment policies.
18. The publication of the investment policy on the respective NCI's website would provide
a measure of transparency. There is no prescription for the formulation of policies other
than what would be required to meet the provisions of section 46. Details of investments
would not be required to be published. Investments would be reported as part of the
NCI's financial statements in its annual report.
19. Subsection 46(6) provides that an investment policy is not a legislative instrument. This
provision is included to assist readers. The provision would be declaratory of the law
rather than prescribing a substantive exemption from the requirements of the Legislation
Act 2003.
National Film and Sound Archive of Australia Act 2008 (NFSA Act)
Items 4-6
20. Items 4-6 would apply to the NFSA Act in a like manner as Items 1-3 would apply to
the ANMM Act.
21. Subsection 38A(6) would provide that an investment policy is not a legislative
instrument. This provision is included to assist readers. The provision would be
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declaratory of the law rather than prescribing a substantive exemption from the
requirements of the Legislation Act 2003.
National Gallery Act 1975 (NGA Act)
Items 7-9
22. Items 7-9 would apply to the NGA Act in a like manner as Items 1-3 would apply to the
ANMM Act.
23. Subsection 37A(6) would provide that an investment policy is not a legislative
instrument. This provision is included to assist readers. The provision would be
declaratory of the law rather than prescribing a substantive exemption from the
requirements of the Legislation Act 2003.
National Library Act 1960 (NLA Act)
Items 10-12
24. Items 10-12 would apply to the NLA Act in a like manner as Items 1-3 would apply to
the ANMM Act.
25. Subsection 23(6) would provide that an investment policy is not a legislative
instrument. This provision is included to assist readers. The provision would be
declaratory of the law rather than prescribing a substantive exemption from the
requirements of the Legislation Act 2003.
National Museum of Australia Act 1980 (NMA Act)
Items 13-15
26. Items 13-15 would apply to the NMA Act in a like manner as Items 1-3 would apply to
the ANMM Act.
27. Subsection 36(6) would provide that an investment policy is not a legislative
instrument. This provision is included to assist readers. The provision would be
declaratory of the law rather than prescribing a substantive exemption from the
requirements of the Legislation Act 2003.
National Portrait Gallery of Australia Act 2012 (NPGA Act)
Items 16-18
28. Items 16-18 would apply to the NPGA Act in a like manner as Items 1-3 would apply to
the ANMM Act.
29. Subsection 46A(6) would provide that an investment policy is not a legislative
instrument. This provision is included to assist readers. The provision would be
declaratory of the law rather than prescribing a substantive exemption from the
requirements of the Legislation Act 2003.
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Item 19 - Schedule 1 - Application provision
30. Item 19 would provide that the amendments made by Schedule 1 apply in relation to (a)
money accepted as a gift or bequest before, on or after the commencement of this Item;
and money received from the disposal of property, before, on or after that
commencement of the Item. This would enable the broader investment of donated
revenue in accordance with amendments made by the Bill of these sorts of money even
if already held by the NCI, and even if it has yet to be accepted or received prior to
commencement of the Bill.
SCHEDULE 2 - Other amendments
Australian National Maritime Museum Act 1990 (ANMM Act)
Item 1 - Subsection 8(6)
31. Item 1 repeals subsection 8(6) of the ANMM Act. Subsection 8(6) provides that the
Minister may, by writing signed by him or her, delegate, to the person holding or
performing the duties of the office of Secretary of the Department, all or any of the
Minister's powers under section 8 of the Act, which relate to making land controlled by
the Commonwealth available to the ANMM or transferring maritime historical material
or other goods and equipment owned by the Commonwealth to the ANMM.
32. The ability for the Minister to delegate powers varies across the enabling legislation of
each of the six NCIs. The powers provided by subsection 8(6) are not available under
the other NCI Acts. The Bill seeks to align delegation provisions across the six Acts.
33. Item 1 would bring the ANMM Act into alignment with the Acts of the other NCIs
under which the Minister does not have the power to delegate powers related to making
land available (subsection 53A).
34. A broader power for the Minister to delegate certain other powers under the ANMM
Act would be introduced by section 53B discussed below under Item 11.
Item 2 - Subsections 10(4) and (5)
35. Item 2 repeals subsections 10(4) and 10(5) of the ANMM Act, which relate to the
disposal of material included in the national maritime collection, including the
requirement to seek ministerial approval for the disposal of such material if its value
exceeds $20,000, and the requirement for the ANMM Council to include in each
ANMM annual report the particulars of any disposals of material during the period, and
would substitute:
a) a new subsection 10(4) which provides that if the Council has determined that material
included in the national maritime collection be disposed of, the Museum may dispose of
that material accordingly. The note to subsection 10(4) notes that particulars of any such
disposals must be included in the annual report (see section 48 as amended by Item 10).
b) a new subsection 10(5) which provides that subsection 10(4) would be subject to section
47- Restrictions on financial transactions (Item 9).
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36. Each of the NCIs is subject to varying restrictions on financial transactions relating to
disposing of property. All NCIs require ministerial approval under their enabling
legislation, to enter into a transaction above a specified financial threshold. The
financial value thresholds for the disposal of collection material above which the
Minister's approval is required currently vary across the primary Acts or associated
Regulations of each NCI. The National Film and Sound Archive of Australia
Regulations 2018 and NLA Act specify an amount of $2 million, the National Portrait
Gallery of Australia Regulation 2013 specifies $1 million, the NMA Act specifies
$250,000, the ANMM Act specifies $20,000, and all disposals regardless of value
require ministerial approval under the NGA Act.
37. The Bill seeks to introduce a more consistent threshold for all NCI disposals, which
would be prescribed in the associated Regulations for each NCI. Currently there is
variation across the legislation in relation to whether the thresholds are specified in the
Acts or Regulations. This is also the case for all other thresholds relating to financial
transactions such as acquisitions of collection material, and acquisition and disposal of
property, right or privilege and construction of buildings. This is discussed further
below in relation to Item 9.
38. It is intended that amendments to the Regulations will be pursued separately and that
they would each specify a threshold of $2 million, except for the NGA where a higher
$10 million threshold would be introduced to mirror its existing acquisition threshold, at
or below which ministerial approval would not be required.
39. While the disposal of collection material across the NCIs remains relatively infrequent,
the Bill and proposed Regulation amendments would standardise the approvals process
in practice and reduce administration for the NCIs. It would also better align ministerial
approval of collection material disposal thresholds with those already in place for the
acquisition or disposal of a property, right or privilege.
40. Following on from this, the Bill would introduce a requirement for the disposal of
collection material to be included in annual reporting in those Acts that do not currently
include this provision, namely the NLA Act.
41. Item 2 would remove the value threshold for a disposal of material from the Act and
insert that a disposal would be subject to the provisions of section 47-Restrictions on
financial transactions, which provides for these thresholds to be prescribed by the
Regulations. In the case of the ANMM, it is intended that the value threshold that must
be exceeded in order to trigger a requirement for ministerial approval to dispose of
national maritime collection material would be increased from $20,000 to $2 million.
The Bill and proposed Regulations would align the ANMM's acquisitions and disposals
thresholds and align the ANMM with the other NCIs with the exception of the NGA.
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Item 3 - Section 14
42. Item 3 would repeal section 14 of the ANMM Act, which gives the Minister the power
to direct the Council with respect to the performance of the functions, or the exercise of
the powers, of the ANMM. It requires that the Council comply with any such directions
and the Minister to table each direction given under section 14 in each House of the
Parliament within six sitting days of the direction being given, in the absence of which
the direction ceases to have effect.
43. There is inconsistency across the enabling NCI Acts in relation to the power of the
Minister to issue a written ministerial direction to a governing body. The ANMM,
NFSA, NMA and NPGA Acts allow this, but the NGA and NLA Acts do not. While
this is a rarely used provision, there is merit in there being a consistent power available
to issue directions.
44. A new provision which would give the Minister the power to give directions to the
Council by legislative instrument is provided by Item 11. Similar provisions would also
be introduced by Schedule 2 to amend the NGA Act, the NLA Act and the NMA Act to
provide greater consistency across the Acts. The requirement for directions to be tabled
in the Parliament would be removed as section 53(A), provided by Item 11, would
provide for directions to be legislative instruments, which means they would be required
to be published on the Federal Register of Legislation. The reporting of any such
directions in NCI annual reports is also required under the Public Governance,
Performance and Accountability Rule 2014 (PGPA Rule).
Item 4 - After subsection 17(5)
45. Item 4 would insert new subsection 17(5AA), which would provide that a person must
not be appointed as a member of the ANMM Council referred to in paragraphs 17(1)(a)
or (c), the Chairperson and all other members of the Council other than the Director and
the officer from the Royal Australian Navy respectively, for a period if the sum of that
period and any periods of previous appointment of the person as a member exceeds 9
years.
46. The maximum length of a single term for members of the governing bodies, who are
appointed by either the Minister or the Governor-General according to the respective
Acts, is 3 years. The NFSA Act and NPGA Act already include a cap of 9 years' service
in total for individual Board members.
47. The Bill seeks to introduce a maximum service period of 9 years in total for an
individual member of a governing body as a standard across all six Acts. A ceiling on
years of service would ensure that NCIs can benefit from a governing body membership
that achieves renewal balanced with continuity of corporate expertise. The intention is
that any periods of acting appointment would be included as part of total service, as
there is no diminution to the powers or entitlements available to the member on the
basis of acting status.
48. The Bill would not apply this maximum service cap to NCI agency heads given the
highly specialised professional skills required of those positions, or the two
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representative members on the NLA Council and the one representative member on the
ANMM Council.
49. After the relevant amendments commence, the maximum service cap would not impact
existing NCI Board or Council members while they complete their current terms. It
would be a matter to consider in the context of appointments, particularly if they
involve reappointments. An assessment of existing governing body appointments has
shown that there is one member whose current term will bring them in excess of the
proposed 9 year cap.
Item 5 - Subsection 23(10)
50. Item 5 would omit from subsection 23(10) the requirement for the Council to forward a
copy of the minutes of its meetings to the Minister.
51. The requirement to forward the minutes of Council meetings to the Minister does not
apply to the governing bodies of any of the other five NCIs and is superfluous to the
governing body meeting its statutory obligations. Removal of this requirement would
remove an unnecessary requirement. The minutes of Council meetings are routinely
made available to the portfolio Department and may be provided to the Minister on
request.
Item 6 - Division 3 of Part 3
52. Item 6 repeals Division 3 of Part 3 of the ANMM Act, which relates to corporate plans
and annual operational plans.
53. Section 26 relates to the approval and tabling of the ANMM's corporate plans.
Subsection 26(1) currently requires a corporate plan prepared by the ANMM Council in
accordance with section 35 of the PGPA Act be given to the Minister for approval at
least 3 months before the commencement of the corporate plan, or a shorter period if
agreed by the Minister. Subsection 26(2) provides for the timing in which the corporate
plan comes into force, and subsection 26(3) requires the corporate plan to be tabled in
the Parliament within 15 sitting days of its approval by the Minister.
54. Section 27 relates to varying and tabling corporate plans. Subsection 27(1) requires any
variation to the corporate plan to be approved by the Minister, the variation applies from
the date approved by the Minister (subsection 27(2)), and the variation must be tabled in
the Parliament within 15 days of the Minister's approval of the variation (subsection
27(3)).
55. Section 28 relates to annual operational plans. Subsection 28(1) requires the ANMM
Council to prepare an annual operational plan to give effect to the corporate plan and
which sets out the programs the Council proposes to carry out and the resources the
Council will allocate to those programs. Subsection 28(2) provides the Minister with the
power to request a revision of the operational plan. Subsection 28(3) requires the
Council to comply with such a request but also provides the power for the Council to
vary the plan should it wish. Subsection 28(4) requires the approval of the Minister for
any revision, and subsection 28(5) enables the Minister to not approve the plan where it
is inconsistent with the corporate plan.
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56. Section 29 requires the ANMM to comply with any corporate plan and annual
operational plan in force.
57. Division 3 Part 3 imposes obligations in addition to what is required under the PGPA
Act in relation to planning and reporting, and is inconsistent with the Acts of the other
five NCIs.
58. Under section 35 of the PGPA Act and section 16E of the PGPA Rule, NCIs are
required to present their annual corporate plan to the Minister, generally by the end of
August each year. In addition to the requirements provided by the PGPA Act, the
ANMM is subject to further requirements. These relate to the approval, timing and
tabling of its corporate plan which are not required of other corporate Commonwealth
entities. The ANMM must provide its corporate plan at least 3 months before the start
of the period (generally 1 July) to which the plan relates or a shorter period if agreed by
the Minister. Any variation to the plan also requires the approval of the Minister.
59. In addition to being required to present its corporate plan to the Parliament (which is not
required of corporate Commonwealth entities under the PGPA Act), the ANMM has a
further obligation to develop and provide to the Minister, for approval, an annual
operational plan, which is not required of any other NCI.
60. The Bill seeks to remove provisions that are additional to the requirements of the PGPA
Act in relation to planning and reporting. Together with the amendments proposed in
relation to the NFSA this would bring the ANMM into alignment with the other NCIs,
with its corporate and annual reporting obligations provided solely by the PGPA Act as
for corporate Commonwealth entities. For the corporate plan this would: remove the
requirement to seek the Minister's approval, rather it will require the ANMM to present
the plan to the Minister in accordance with the provisions of the PGPA Rule; align the
timing to that of other Commonwealth entities; and remove the requirement for the plan
to be tabled in the Parliament. The amendment would also remove all requirements
related to the preparation of an annual operational plan.
Items 7 and 8 - Section 39
61. Section 39 currently provides a power to the Director to delegate in writing, with the
approval of the Council, all or any of the Director's powers under the Act.
62. Item 7 would introduce numbering for the purposes of adding a subsection to section
39.
63. Item 8 would add a note referring to the provisions relating to delegations in the AI Act,
as well as a new subsection 39(2) whereby, in exercising a delegation, a delegate must
comply with any written directions of the Director.
64. This addition would modernise and bring into alignment with current drafting practices
the provision for the Director to delegate power under the Act. The ANMM remains one
of only two NCIs to have such a provision. Item 8 would preserve the power of the
Director to delegate the Director's powers. Under the Act, only a single power is
available to be delegated, namely the engagement of consultants (section 42).
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Section 39 would allow the Director to delegate this power to a staff member of the
ANMM. A similar power for an agency head delegation has not been included for other
NCIs as there are no functions that could be delegated included in the respective Acts.
Item 9 - Section 47 Restrictions on financial transactions
65. Item 9 repeals section 47 - Contracts, and would substitute it with a standard provision
to align restrictions on financial transactions within the six NCI enabling Acts.
66. The existing section 47 requires ministerial approval for the ANMM to enter a contract
for the acquisition of maritime historical material (paragraph (1)(a)) or in any other case
(paragraph (1)(b)), where the value exceeds $250,000 or a higher amount as specified in
Regulations (a higher amount of $2 million is specified in the Regulations); or
subsection (2) enter a lease of land for a period exceeding 10 years. Section 47 is
subject to the separate threshold for disposal in subsection 10(4) (currently $20,000)
which is repealed and remade in Section 47.
67. Each of the NCIs is subject to varying restrictions on financial transactions which relate
to matters such as acquiring or disposing of collection material, acquiring or disposing
of a property, right or privilege, the entering of construction contracts, and the lease of
land. All NCIs require ministerial approval under their Acts to enter into a transaction
above a financial threshold specified in either their Act itself or the respective
regulations.
68. Of the six NCI Acts, two do not specify any thresholds in the Act itself, only in
Regulations. The remaining four Acts specify amounts in the Acts but also specify
higher amounts in the Regulations. The Bill seeks to standardise how thresholds are
provided across the Acts and therefore would remove specified thresholds from the four
Acts and provide for them to be prescribed in the respective Regulations to align with
more recently drafted Acts. It is anticipated that specifying thresholds in the
Regulations, rather than the Acts, would facilitate the updating of threshold amounts
over time.
69. With the exception of (a) acquiring or disposing of a property, right or privilege or the
entering of construction under the NPGA Act ($1 million threshold specified); (b) the
acquisition of works of art under the NGA Act ($10 million threshold specified); (c) the
disposal of collection material by the NMA ($250,000); and
(d) the disposal of collection material by the ANMM ($20,000), ministerial approval is
required for all financial transactions above $2 million across the Acts or associated
Regulations.
70. With the exception of the NGA Act, for which Regulations would be made to provide
that the collection material acquisition and disposal thresholds for entering contracts
would be $10 million to reflect the nature of the collection, the Regulations would be
remade to provide a threshold of $2 million across each of the Acts, at or below which
approval by the Minister would not be required.
71. Section - 47 Restrictions on financial transactions would introduce six standardised
Items which are included across the six Acts. These include: (a) the acquisition of
collection material; (b) the disposal of collection material; (c) the acquisition of
13
property, right and privilege; (d) the disposal of property, right or privilege; (e) the
construction of a building; and (f) entry into a lease of land for a period exceeding 10
years. The first five Items are subject to value thresholds specified in the respective
Regulations.
72. With the exception of paragraphs 47(1)(b) and 47(1)(f), it is intended that all Items in
subsection 47(1) would remain subject to an existing threshold value of $2 million
through remade Regulations. Paragraph 47(1)(b), discussed in Item 2, is currently
subject to a threshold of $20,000 which is proposed to be increased to $2 million as
discussed in Item 2. Paragraph 47(1)(f) is not subject to a monetary threshold.
73. Subsection 47(2) would provide that an approval by the Minister under subsection 47(1)
is not a legislative instrument. This provision is included to assist readers. The provision
would be declaratory of the law rather than prescribing a substantive exemption from
the requirements of the Legislation Act 2003.
74. Subsection 47(1) would also introduces a specific provision related to the construction
of a building, subject to the property, right and privilege threshold of $2 million.
Subsection 47(3) would remove the threshold value for disposals, previously stated in
the Act, and would provide for it to be prescribed in Regulations.
75. Subsection 47(4) would introduce a new provision that exempts from the thresholds any
contracts that are for day-to-day operations ie. essential operational services such as
utilities, security, cleaning and routine general maintenance. As the value for a
particular service is considered on a cumulative basis, multi-year procurements
regularly exceed the applicable threshold where they are extended or renewed. This
requires new approval by the Minister on each occasion and can present a risk, for
example, where there are time limitations to secure discounts, or where a whole of
Government agreement is being negotiated. Prior to entering into an arrangement, NCIs
seek independent expert advice on the terms of arrangements as needed to ensure value
for money.
76. Subsection 47(5) would introduce an exemption for the acquisition and disposal of
certain investments. This would support the amendment in Schedule 1 to provide the
power to NCIs to invest revenue from donations more broadly than permitted by the
PGPA Act.
77. Given the responsibility of governing bodies to manage investment activities within the
parameters of the investment policy required under the Bill, and that only donated
revenue can be used, and therefore low risk to the operations of NCIs, a threshold for
ministerial approval for transactions related to investments is considered contrary to the
intention of the newly introduced investment provisions.
14
Item 10 - Section 48
78. Item 10 would repeal section 48 which relates to extra matters to be included in the
annual report.
79. The existing subsection 48(a) requires the particulars of each direction given by the
Minister to the Council to be included in the ANMM's annual report. This item would
be repealed as this is already required under 17BE(d) of the PGPA Rule.
80. The existing subsection 48(b) requires reporting on any operational plan or revision to
an operational plan. As Division 3 Part 3, which relates to operational plans, would be
repealed (refer to Item 6 above), this requirement would also be removed.
81. Item 10 would amend section 48 requiring the Council to report on any disposal of
material in the national maritime collection under subsection 10(4) of the Act. The
inclusion of disposals of collection material in annual reporting is discussed above in
relation to Item 2.
Item 11 - After section 53
82. Item 11 would insert section 53A, which provides a power to the Minister to give
directions to the ANMM Council about the performance of its functions or the exercise
of its powers.
83. Section 53A(1) would enable the Minister to provide a direction by legislative
instrument and notes that section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting)
of the Legislation Act 2003 would not apply to directions.
84. Subsections 53A(2) and 53A(3) would provide that the direction must be of a general
nature only and that the Council must comply with any such direction.
85. The power for the Minister to give directions is discussed above in relation to
Item 3.
86. Item 11 would also introduce section 53B, which provides a power for the Minister to
delegate some of the Minister's functions or powers under the Act (as discussed in Item
1 above). Subsection 53B(1) would limit delegation to the Secretary of the Department
or an SES employee, or acting SES employee, in the Department. Subsection 53B(2)
would exclude the following powers from delegation: making land available (section 8),
appointing acting Council members (section 18) or giving directions to the Council
(section 53A).
87. The items that would be excluded from delegation under the Act are: making land
available (subsection 8(6)) which aligns with the existing legislation of other NCIs;
giving directions to the Council by legislative instrument about the performance of its
functions or the exercise of its powers (subsection 53A); the appointment of a Council
member to act as Chair during a vacancy in the office or during any period when the
Chair is absent from duty or from Australia (subsection 18(1)); and the appointment of a
person who is not a Council member to act as a member during a vacancy in the office
15
of the member, or any period when the member is absent from duty or from Australia or
unable to perform their duties (subsection 18(2)).
88. Section 53B would not prevent the Minister from exercising any power. A similar
power would be introduced for those Acts that currently do not permit the Minister to
delegate approvals to acquire or dispose of collection material, property, right or
privilege or enter a contract for the construction of a building, subject to specified
thresholds; or to appoint temporary agency heads during a vacancy in the office or any
period where the office holder is absent from duty or unable to perform the duties of the
office. The delegation would be made to the Secretary of the Department and relevant
SES employees or acting SES employees of the Department. Delegation would not
extend to the Minister's power to make or terminate appointments to governing bodies
or permanent appointments of agency heads (where applicable), the power to give
directions to the governing body, or the power to delegate. The provisions in the other
Acts would be: section 42A of the NFSA Act, section 45A of the NGA Act, section
27D of the NLA Act and section 42 of the NMA Act and are discussed below under
each Act.
Item 12 - Application and savings provisions
89. Item 12(1) would provide that subsection 8(6) of the ANMM Act, as in force
immediately before the commencement of the Item, continues to apply on and after that
commencement in relation to a delegation in force under that subsection immediately
before that commencement. This would preserve any delegation in force made under
subsection 8(6), which relates to making land available to the ANMM, by the Minister
to the person holding or performing the duties of the office of Secretary of the
Department.
90. Item 12(2) would provide that the amendment of section 10 of the ANMM Act made by
Schedule 2 of the Bill applies in relation to a determination made under that section on
or after the commencement of the Item. The amendments to section 10 made by the Bill
in relation to the disposal of national maritime collection material would take effect on
or after commencement of the Bill.
91. Item 12(3) would provide that section 14 of the ANMM Act, as in force immediately
before the commencement of the Item, continues to apply on and after that
commencement in relation to a direction in force under that section immediately before
that commencement. This would preserve any direction in force made under section 14
by the Minister to the ANMM Council.
92. Item 12(4) would provide that subsection 17(5AA) of the ANMM Act, as inserted by
Schedule 2 to the Bill, applies in relation to an appointment made under
subsection 17(2) of that Act on or after the commencement of the Item, whether a
period of previous appointment referred to in paragraph 17(5AA)(b) of that Act
occurred before, on or after that commencement. Subsection 17(5AA) would provide
for the introduction of a maximum of 9 years' service in total by individual Council
members and the Chairperson. This Item provides that subsection 17(5AA) would apply
to an appointment made from commencement of the Act, but that any periods of
previous appointment that occurred before, on or after that commencement would count
16
towards this 9 year maximum period. The amendment would not impact on the terms of
any current appointments.
93. Item 12(5) would provide that the amendment of section 23 of the ANMM Act made by
Schedule 2 of the Bill applies in relation to a meeting held on or after the
commencement of this Item. The amendment of section 23 would remove the
requirement that the Council to provide copies of minutes of Council proceedings, and
per this Item will apply from commencement of this Act.
94. Item 12(6) would provide that the amendments of section 39 of the ANMM Act made
by Schedule 2 to the Bill apply in relation to a delegation in force on or after the
commencement of the Item, whether that delegation was made before, on or after that
commencement. The amendments to section 39 would therefore apply to any delegation
made by the Director to a member of the staff of the Museum in force on or after the
commencement of the Item.
95. Item 12(7) would provide that the repeal and substitution of section 47 of the ANMM
Act made by Schedule 2 to the Bill does not affect the validity of an approval in force
under that section immediately before the commencement of this Item. Currently,
section 47 requires the Minister to provide approval for the Museum to enter into
certain contracts or for entering into certain leases for land. This Item would provide
that the validity of an approval already in force will not be affected.
96. Item 12(8) would provide that subsection 47(4) of the ANMM Act, as substituted by
Schedule 2 to the Bill, applies on and after the commencement of the Item in relation to
contracts entered into before, on or after that commencement. This would mean that
ministerial approval will not be required in relation to contracts for the supply of a
service for the day-to-day operations of the Gallery, whether the relevant contract was
entered into before, on or after commencement of the Bill.
National Film and Sound Archive of Australia Act 2008 (NFSA Act)
Item 13 - Part 5
97. Item 13 would repeal Part 5 (sections 33-36) which relates to planning.
98. Section 33 - Corporate Plan provides the Minister with a power to give the NFSA Board
written instructions for the preparation of its corporate plan which the Board must
comply with, noting these may include details of particular matters in the plan.
Subsection 33(2) states that such an instruction is not a legislative instrument.
99. Section 35 - Approval of the corporate plan by the Minister provides that the plan must
be given to the Minister before the commencement of the plan (subsection 35(1)); the
Minister may, by written notice, approve the plan or request it be revised (subsection
35(2)); the Board must comply with a request to revise a plan and provide the revised
plan to the Minister for approval (subsection 35(3)); the plan comes into force once
approved by the Minister (subsection 35(4)); and a written notice by the Minister in
relation to the plan is not a legislative instrument (subsection 35(5)).
17
100. Section 36 relates to variation of a corporate plan. It includes that the Board may vary
the plan (subsection 36(1)); the Minister may request the Board to revise the plan and
the Board must comply (subsection 36(2)); a variation must be given to the Minister for
approval (subsection 36(3)); a variation takes effect on the day it is approved by the
Minister (subsection 36(4)); a plan continues in force on and after the day a variation is
approved (subsection 36(5)); and a written request or approval by the Minister is not a
legislative instrument (subsection 36(6)).
101. The repeal of reporting requirements additional to those required by the PGPA Act is
discussed above in relation to Item 6.
102. The Bill seeks to remove provisions additional to the requirements of the PGPA Act in
relation to planning and reporting. Together with the amendments proposed in relation
to the ANMM this would bring the NFSA into alignment with the other NCIs, with
corporate plan obligations provided solely by the PGPA Act as for corporate
Commonwealth entities. For the corporate plan this would: remove the requirement to
seek the Minister's approval, rather it will require the NFSA to present the report to the
Minister in accordance with the provisions of the PGPA Rule; align the timing to that of
other Commonwealth entities; remove the power for the Minister to give written
instructions in relation to the plan; and make variations to the plan subject to the
provisions of the PGPA Act, which do not require ministerial approval.
Item 14 - Section 39
103. Item 14 would repeal section 39 which relates to restrictions on financial transactions
and would substitute it with a standard provision which aligns across the NCI Acts.
104. The standardisation of provisions related to restrictions on financial transactions across
the six Acts are discussed above in relation to Item 9. These would be added by
subsection 39(1).
105. The Regulations which would be remade to reflect the new standardised provision
would include a threshold of $2 million, as is the case for the NFSA's current
Regulations. The amended provision would add a specified provision for the acquisition
and disposal of collection material, for which the $2 million threshold would also apply.
106. Subsection 39(2) provides that approval by the Minister under subsection 39(1) is not a
legislative instrument. This provision is included to assist readers. The provision would
be declaratory of the law rather than prescribing a substantive exemption from the
requirements of the Legislation Act 2003.
107. Subsection 39(3) would introduce a new provision that exempts from the thresholds,
contracts that are for day-to-day operations ie. essential operational services such as
utilities, security, cleaning and routine general maintenance. As the value for a
particular service is considered on a cumulative basis, multi-year procurements
regularly exceed the threshold where they are extended or renewed. This requires new
approval by the Minister on each occasion and can present a risk, for example, where
there are time limitations to secure discounts, or where a whole of Australian
Government agreement is being negotiated. Prior to entering into an arrangement, NCIs
18
seek independent expert advice as needed on the terms of arrangements to ensure value
for money.
108. Subsection 39(4) would introduce an exemption for the acquisition and disposal of
investments. This would support the amendment in Schedule 1 to provide the power to
NCIs to invest revenue from donations more broadly than permitted by the PGPA Act.
109. Given the responsibility of governing bodies to manage investment activities within the
parameters of the investment policy required under the Bill, and that the application of
donated funds presents low risk to the operations of NCIs, a threshold for ministerial
approval is considered contrary to the intention of the newly introduced investment
provisions.
Item 15 - After section 42
110. Item 15 would insert a standardised provision to enable the Minister to delegate certain
powers.
111. The power for the Minister to delegate functions and powers is discussed in detail above
in Item 1.
112. The exclusions to the Minister's powers of delegation under the NFSA Act would
include: the Minister's powers for the appointment (section 11) and termination (section
16) of Board members, and appointment of acting Board members (section 12) under
the Act; and the power to give directions to the Board (section 42).
Item 16 - Application and savings provisions
113. Item 16(1) would provide that the repeal and substitution of section 39 of the NFSA Act
made by Schedule 2 to the Bill does not affect the validity of an approval in force under
that section immediately before the commencement of this item. Currently, section 39
requires the Minister to provide approval for the NFSA to enter into certain contracts or
for entering into certain leases for land. This Item would provide that the validity of an
approval already in force will not be affected.
114. Item 16(2) would provide that subsection 39(3) of the NFSA Act, as substituted by
Schedule 2, applies on and after the commencement of this Item in relation to contracts
entered into before, on or after that commencement. Subsection 39(3) would provide
that subsection 39(1), which requires the written approval of the Minister, does not
apply to entering into contracts where the contract is for the day-to-day operations of
the NFSA. This Item would apply to existing contracts and contracts entered into on, or
after, commencement of this provision.
19
National Gallery Act 1975 (NGA Act)
Item 17 and 18 - Section 5 and Paragraph 6(1)(b)
115. Item 17 would repeal section 5 which provides that the national collection be housed in
the Australian Capital Territory (ACT). Section 5 would not prevent works from the
national collection being exhibited outside of the ACT.
116. Paragraph 6(1)(b) would add "in Australia or elsewhere" to the function of exhibiting or
making available for exhibition by others, works of art from the national collection.
117. The Bill seeks to exclude the provision for the national collection to be exclusively
housed in the ACT as it is inconsistent with the enabling Acts for the other NCIs which
do not include geographic limitations on where their collections may be housed. The
current provision may have the effect of limiting future options regarding storage of
Gallery collection items.
118. Paragraph 6(1)(b) would clarify that the exhibition of works is not limited to within
Australia, which in turn supports the full range of activities undertaken by the Gallery
including its important international exchange and exhibition programs.
Item 19 - Subsection 9(5)
119. Item 19 would repeal subsection 9(5) where the Council has resolved to dispose of a
work of art and the Minister has agreed to the disposal, the Gallery may dispose of it
accordingly.
120. Item 19 would substitute 9(5) with the provision where, subject to a Council resolution,
a work of art may be disposed, thereby removing the requirement for the Minister's
approval. Subsection 9(6) would subject the Council's powers to dispose of works of art
without the Minister's approval to those works at or below a financial threshold
specified in the Regulations. An amount of $10 million would be prescribed in
Regulations.
121. The current legislation enables the NGA to acquire works of art valued at up to
$10 million without the Minister's approval but requires any disposal of a work of art,
regardless of its value, to be approved by the Minister. As discussed above in Item 9,
the Bill seeks to align thresholds related to acquisitions and disposals and $2 million
would be prescribed by Regulations with the exception of the NGA which would
include a threshold of $10 million for the disposal of collection material. This would
align with the existing $10 million threshold for acquisitions by the NGA. Where the
disposal of a work of art occurs, it is subject to a rigorous internal deaccession policy
that includes approval by the NGA Council in accordance with the NGA Act.
Item 20 - After subsection 13(3)
122. Item 20 relates to the appointment of members to the NGA Council. It would insert
subsection 13(3A) whereby a person must not be appointed as a member referred to in
13(1)(a) i.e. the Chair or 13(1)(c) a member, for a term where the sum of that term or
any previous terms exceeds 9 years.
20
123. This amendment aims to standardise the provision across all NCI Acts and is discussed
in more detail above in relation to Item 4. Currently the NGA Act does not limit the
number of terms that can be served by an individual. The amendment would not affect
current appointments to the Council.
Item 21 - Section 15
124. Item 21 would repeal section 15 which relates to the appointment of deputies of
members. Subsection 15(1) provides a power for a part-time member to appoint a
person, with the approval of the Minister, other than a member, to act as their deputy on
the NGA Council. Subsection 15(2) allows a member to revoke an appointment of a
deputy, which takes effect once notice has been provided to the Minister. Subsection
15(3) enables a deputy of a member to attend meetings in their absence, as a member.
125. Apart from deputies of members, the NGA Act does not currently allow for specific
arrangements regarding an acting Chair or Deputy Chair.
126. Item 21 would substitute the appointment of deputies of members with powers for the
appointment of an acting Chair, an acting Deputy Chair and acting members which are
aligned to the other NCIs.
127. Section 15(1) would enable a Deputy Chair to act as Chair during a vacancy in the
office of Chair or during any period when the Chair is absent from duty or from
Australia, or unable to perform the duties of the office. It would note the rules that apply
to persons acting as the Chair in section 33A of the AI Act.
128. Section 15(2) would enable the Council to appoint a member by written instrument to
act as the Deputy Chair during a period where the Deputy Chair is either acting as
Chair, absent from duty or Australia or unable to perform the duties of the office. It
would note the rules that apply to acting appointments in sections 33AB and 33A of the
AI Act.
129. Section 15(3) would provide a power to the Minister to appoint a member by written
instrument to act as a member (other than as the Director, Chair or Deputy Chair)
during a vacancy in the office of a member or when a member is acting as the Deputy
Chair, absent from duty or from Australia, or unable to perform the duties of the office.
Section 15(3) would also note that for rules that apply to acting appointments, see
sections 33AB and 33A of the AI Act.
130. The amendment to this section would remove the power for a member of the Council to
appoint their own deputy to that governing body. This provision has rarely, if ever, been
used and presents a risk to the functioning of the governing body as it does not offer the
level of due diligence afforded by the Cabinet and Federal Executive Council
appointments processes.
131. For consistency with other Acts, the provisions for the appointment of an acting Council
Chair and Deputy Chair are proposed. In the absence of this provision the appointment
of an acting Chair during a vacancy in the office would require the approval of the
Prime Minister as described below. The new provision would: enable the Deputy Chair
21
to automatically be appointed to the role of Chair subject to meeting the terms of
subsection 15(1) and the Council to appoint a Deputy Chair subject to meeting the terms
of subsection 15(2); and would provide a power to the Minister to appoint an acting
member subject to the terms of subsection 15(3).
132. The NGA Act does not provide an express power for the Minister to appoint an
individual to act as a member of the Council. Such a provision would offer a
mechanism for continuity or reasons of quorum, or other circumstances where there are
delays to filling vacancies on a longer term basis.
133. The Cabinet Handbook requires the approval of any acting arrangement for a period of
up to three months to be brought to the Prime Minister's attention, with the option of
one further extension of up to three months (bringing the total period to six months).
This provides a measure of control against acting arrangements being used in lieu of
regular appointment processes, but provides sufficient time for an appointment process
to be undertaken.
134. The Bill seeks to provide a power to the Minister to make certain acting appointments,
whether it is the Minister or the Governor-General who has the authority to make the
substantive appointments under the relevant Act. The Bill would exclude the Minister
from making acting appointments for three specified positions: representatives elected
by the House of Representatives and Senate (NLA Council) and an Officer of the Royal
Australian Navy appointed by the Chief of the Australian Defence Force (ANMM
Council).
Item 22 - Subsection 16(1)
135. Item 22 would omit "the deputy of a member" from subsection 16(1) which relates to
remuneration and allowances of members.
136. This amendment would follow from the removal of the provision for a member of a
governing body to appoint a deputy as discussed above in Item 21.
Item 23 - Subsection 20(6)
137. Section 20 includes the provisions related to meetings of the Council and subsection
20(6) specifies the terms for meeting quorum. Item 23 would omit "7 members
constitute a quorum" and substitute "a quorum is constituted by a majority of
members".
138. The ANMM Act, NFSA Act and NPGA Act specify a majority of current members as
meeting quorum. The NGA Act and NMA Act specify the minimum number of
members required to achieve quorum as 7 and the NLA Act as 5. The Bill seeks to
standardise quorum to be the majority of appointed members across all NCI governing
bodies. This amendment would align the Acts and ensures continuity of operations
should there be vacancies in the governing body membership, or absences from
meetings.
22
Item 24 - Section 38
139. Item 24 would repeal section 38 which provides the power to purchase and dispose of
assets. Section 38 includes provisions relating to: acquiring a work of art, acquiring and
disposing of any property, right or privilege; entering a contract for the construction of a
building; and entering a lease of land for a period exceeding 10 years.
140. The standardisation of provisions related to restrictions on financial transactions across
the six Acts are discussed above in detail in relation to Item 9. These would be added by
section 38.
141. The thresholds at or below which the Minister's approval is not required, namely
$10 million for acquisition of works of art and $2 million for property, right privilege
and construction of a building, as specified in the regulations for the NGA, would be
remade in Regulations. The amended Regulations would add a specified provision for
the disposal of collection material, for which the $10 million threshold would also
apply.
142. Subsection 38(2) would provide that approval by the Minister under subsection 38(1) is
not a legislative instrument. This provision is included to assist readers. The provision
would be declaratory of the law rather than prescribing a substantive exemption from
the requirements of the Legislation Act 2003.
143. Subsection 38(3) would introduce a new provision that exempts from the thresholds,
contracts that are for day-to-day operations ie. essential operational services such as
utilities, security, cleaning and routine general maintenance. As the value for a
particular service is considered on a cumulative basis, multi-year procurements
regularly exceed the threshold where they are extended or renewed. This requires new
approval by the Minister on each occasion and can present a risk, for example, where
there are time limitations to secure discounts, or where a whole of Australian
Government agreement is being negotiated. Prior to entering into an arrangement, NCIs
seek independent expert advice as needed on the terms of arrangements to ensure value
for money.
144. Subsection 38(4) would introduce an exemption for the acquisition and disposal of
investments. This would support the amendments proposed by Items 1-18 in Schedule 1
to provide the power to NCIs to invest donated revenue more broadly than permitted by
the PGPA Act.
145. Given the responsibility of governing bodies to manage investment activities within the
parameters of the investment policy required under the Bill, and that the application of
donated revenue presents low risk to the operations of NCIs, a threshold for ministerial
approval is considered contrary to the intention of the newly introduced investment
provisions.
Item 25 - After section 45
146. Item 25 would insert section 45A to provide a power to the Minister to give directions
to the Council. Subsection 45A(1) would enable the Minister by legislative instrument
to give written directions to the Council about the performance of its functions or the
23
exercise of its powers. Subsection 45A(2) would limit directions to be of a general
nature only and subsection 45A(3) would require the Council to comply with such a
direction.
147. The Bill seeks to standardise this provision across the six NCI Acts and this is discussed
in greater detail above in Item 3.
148. Item 25 would also insert section 45B which provides a power for the Minister to
delegate all of the Minister's functions or powers under the Act (as discussed in Item 1
above). Subsection 45B(1) would limit delegation to the Secretary of the Department or
an SES employee, or acting SES employee, in the Department. Subsection 45B(2)
woulde exclude the following powers from delegation: making land or works of art
available to the Gallery (section 8); appointing acting Council members (section 15);
making directions regarding the employment of staff (who are employed under the
NGA Act rather than the Public Service Act 1999 (section 33); or directions to the
Council (section 45A).
Item 26 - Application and saving provisions
149. Item 26(1) would provide that the amendment of section 9 of the NGA Act made by
Schedule 2 applies where the NGA Council resolves, on or after the commencement of
this item, that a work of art be disposed of. Disposal of a work of art following a
Council resolution on or after commencement of the Bill would therefore need to be
made in compliance with section 38, if required.
150. Item 26(2) would provide that subsection 13(3A) of the NGA Act, as inserted by
Schedule 2 to the Bill, applies in relation to an appointment made under
subsection 13(2) of that Act on or after the commencement of this Item, whether a term
of previous appointment referred to in paragraph 13(3A)(b) of that Act occurred before,
on or after that commencement. Subsection 13(3A) provides for the introduction of a
maximum of 9 years' service in total by individual Council members and the
Chairperson. This item would provide that subsection 13(3A) would apply to an
appointment made from commencement of the Act, but that any terms of previous
appointment that occurred before, on or after that commencement would count towards
this 9 year maximum period. The amendment would not impact on the terms of any
current appointments.
151. Item 26(3) would provide that the repeal and substitution of section 38 of the NGA Act
made by Schedule 2 would not affect the validity of an approval in force under that
section immediately before the commencement of this item. Currently, section 38
requires the Minister to provide approval for the NGA to enter into certain contracts or
for entering into certain leases for land. This item would provide that the validity of an
approval already in force would not be affected.
152. Item 26(4) would provide that subsection 38(3) of the NGA Act, as substituted by
Schedule 2, would apply on and after the commencement of this item in relation to
contracts entered into before, on or after that commencement. This would mean that
ministerial approval would not be required in relation to contracts for the supply of a
service for the day-to-day operations of the Gallery, whether the relevant contract was
entered into before, on or after commencement of the Bill.
24
National Library Act 1960 (NLA Act)
Item 27 - Section 7A
153. Item 27 would repeal section 7A of the NLA Act which relates to the Library's power
to purchase and dispose of assets. This clause would be replaced by section 24
(discussed below in Item 34) which standardises restrictions on financial transactions,
as discussed in detail in relation to Item 9.
Item 28 - After subsection 10(5)
154. Proposed Item 28 inserts a new subsection 10(5A), which would provide that a person
must not be appointed as a Council member referred to in paragraph 10(2)(c) i.e. a
member, for a period if the sum of that period and any periods of previous appointment
of the person as a member exceeds 9 years.
155. The introduction of a ceiling of nine years' service as a member of a governing body is
discussed in detail above in relation to Item 4.
156. The NLA Act does not currently include a cap on years of service. The introduction of
this provision would not apply to current appointments, only to those occurring after the
amendment takes effect.
Items 29, 30 and 31 - Paragraph 15(1)(c), After subsection 15(1) and Subsection 15(2)
157. Items 29 and 30 relate to section 15 - Vacation of office. Subsection 15(1) specifies a
number of circumstances in which a member other than the Director-General shall have
their appointment terminated by the Governor-General. Paragraph 15(1)(c) specifically
refers to the vacation of office by a member of the Council who is elected by either
House of the Parliament.
158. Item 29 would repeal 15(1)(c) and Item 30 inserts subsection (1A) which provides that
where a member elected by either House of the Parliament ceases to be a member of
that House, they cease to be a member of the Council.
159. The effect of this provision would be that the term of a Council member elected by
either House of the Parliament who ceases to be a member of that House automatically
ceases and would therefore not be required to tender a letter of resignation to the
Governor-General.
160. Item 31 would omit the reference "paragraph (1)(c)" from subsection 15(2) and
substitute it with "subsection (1A)" to reflect the proposed amendments to subsections
15(1) and 15(1A).
Item 32 - Subsection 16(6)
161. Section 16 relates to the provisions for meetings of the Council and subsection 16(6)
specifies the terms for meeting quorum. Item 32 would omit "5 members constitute a
quorum" and substitute "a quorum is constituted by a majority of members". This
25
would align the NLA Act with all other NCI Acts and is discussed further in Item 23
above.
Item 33 - Subsections 17(5) to (8)
162. Section 17 relates to the Director-General and subsections 17(5) to 17(8) relate to the
Director-General's power to delegate any of their powers or functions under the Act.
163. Specifically, the Bill would repeal subsections 17(5) to 17(8): subsection 17(5) enables
the Director-General by written instrument to delegate to a person engaged under the
Public Service Act 1999 all or any of their powers and functions under the Act (not
including the power to delegate provided by this subsection). Subsection 17(6) requires
that this power be subject to any directions of the Council. Subsection 17(7) provides
that a delegate has the full and effective powers of the Director-General as delegated.
Subsection 17(8) allows for the delegation to be revocable and does not limit the
Director-General in the exercise of a power or performance of a function.
164. The Bill seeks to repeal these powers of delegation as there are no powers available
under the Act which may be meaningfully delegated. Except for the ANMM, none of
the primary Acts of the NCIs include a power for the agency head to delegate nor do
they have any functions that are able to be delegated under those Acts. In the case of the
ANMM and the NMA, the Acts include a power for the Director to engage consultants
and therefore the delegation power has been retained in those instances.
Item 34 - Before section 26
165. Item 34 would insert section 24, a standardised provision relating to restrictions on
financial provisions which aims to align the six NCI Acts as discussed in Item 9 above.
It would replace section 7A as proposed for repeal by Item 27.
166. Each of the NCIs is subject to varying restrictions on financial transactions which relate
to matters such as acquiring or disposing of a property, right or privilege, the entering of
construction contracts, the entering of contracts for the acquisition of specified material,
the entering of contracts more generally, and the lease of land for a period exceeding 10
years. All NCIs require ministerial approval under their Acts to enter into a transaction
above a specified financial threshold.
167. Subsection 24(1) would introduce the six standardised provisions which are subject to
thresholds stated in regulations, at or below which, the NCI would not be required to
seek the approval of the Minister prior to entering a contract. The items would be: (a)
the acquisition of library material; (b) the disposal of library material; (c) the acquisition
of property, right and privilege; (d) the disposal of property, right or privilege; (e) the
construction of a building; and (f) entry into a lease of land for a period exceeding 10
years. The first five items (a) to (e) would be subject to value thresholds specified in the
respective regulations.
168. Paragraphs 24(1)(a) and 24(1)(b) which specify the acquisition and disposal of library
material are newly added. Previously the Act made no distinction between collection
material and non-collection material.
26
169. With the exception of paragraph 24(1)(f), all items in subsection 24(1) would remain
subject to a threshold value of $2 million which would be prescribed in Regulations.
Paragraph 24(1)(f) would not be subject to a monetary threshold.
170. Subsection 24(2) would provide that approval by the Minister under subsection 24(1) is
not a legislative instrument. This provision would be declaratory of the law rather than
prescribing a substantive exemption from the requirements of the Legislation Act 2003.
171. Subsection 24(3) would introduce a provision that exempts from the thresholds, any
contracts that are for day-to-day operations ie. essential operational services such as
utilities, security, cleaning and routine general maintenance. As the value for a
particular service is considered on a cumulative basis, multi-year procurements
regularly exceed the applicable threshold where they are extended or renewed. This
requires new approval by the Minister on each occasion and can present a risk, for
example, where there are time limitations to secure discounts, or where a whole of
Government agreement is being negotiated. Prior to entering into an arrangement, NCIs
seek independent expert advice on the terms of arrangements as needed to ensure value
for money.
172. Subsection 24(4) would introduce an exemption for the acquisition and disposal of
certain investments. This would support the amendment in Schedule 1 to provide the
power to NCIs to invest revenue form donations more broadly than permitted by the
PGPA Act.
173. Given the responsibility of governing bodies to manage investment activities within the
parameters of the investment policy required under the Bill, and that only donated funds
can be used, and therefore low risk to the operations of NCIs, a threshold for ministerial
approval for transactions related to investments is considered contrary to the intention
of the newly introduced investment provisions.
174. Section 25, as added, would require the Council to provide a statement on disposals of
library material in annual reporting and is discussed above in relation to Item 2. In the
case of the NLA, this reporting would be expected to be of a general or summary nature
given the volume of library material this provision relates to.
Item 35 - After section 27B
175. Item 35 would insert section 27C to provide a power to the Minister to give directions
to the Council. Subsection 27C(1) would enable the Minister by legislative instrument
to give written directions to the Council about the performance of its functions or the
exercise of its powers. Subsection 27C(1) would note that section 42 (disallowance) and
Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 would not apply to
directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of
that Act). Subsection 27C(2) would limit directions to be of a general nature only and
subsection 27C(3) would require the Council to comply with such a direction.
176. Item 25 would also insert section 27D which provides a power for the Minister to
delegate all of the Minister's functions or powers under the Act (as discussed in Item 1
above). Subsection 27D(1) would limit delegation to the Secretary of the Department or
an SES employee, or acting SES employee, in the Department. Subsection 27D(2)
27
would exclude the following powers from delegation: appointing acting Council
members (section 11); or giving directions to the Council (section 27C).
Item 36 - Applications and savings provisions
177. Item 36(1) would provide that the repeal of section 7A of the NLA Act made by
Schedule 2 would not affect the validity of an approval in force under that section
immediately before the commencement of this item. Currently, section 7A requires the
Minister to provide approval for the NLA to enter into certain contracts or certain leases
for land. This item would provide that the validity of an approval already in force will
not be affected.
178. Item 36(2) would provide that subsection 10(5A) of the NLA Act, as inserted by
Schedule 2, applies in relation to an appointment made under paragraph 10(2)(c) of that
Act on or after the commencement of this item, whether a period of previous
appointment referred to in paragraph 10(5A)(b) of that Act occurred before, on or after
that commencement. Subsection 10(5A) would provide for the introduction of a
maximum of 9 years' service in total for certain Council members including any
appointed as the Chair and Deputy Chair as identified in 10(2)(c) and 12. This item
would provide that subsection 10(5A) would apply to an appointment of such members
made from commencement of the Act, and that any periods of previous appointment
that occurred before, on or after that commencement would count towards this 9 year
maximum period. The amendment would not impact on the terms of any current
appointments.
179. Item 36(3) would provide that subsection 24(3) of the NLA Act, as inserted by Schedule
2, applies on and after the commencement of this item in relation to contracts entered
into before, on or after that commencement. This would mean that ministerial approval
would not be required in relation to contracts for the supply of a service for the day-to-
day operations of the Library, whether the relevant contract was entered into before, on
or after commencement of the Bill.
180. Item 36(4) would provide that section 25 of the NLA Act, as inserted by Schedule 2,
applies in relation to an annual report for a period ending after the commencement of
this item, where the disposals occurred at any time during that period. This would mean
that all disposals occurring within the reporting period, including prior to the
commencement of this provision, would be required to be reported.
National Museum of Australia Act 1980 (NMA Act)
Item 37 - Subsection 3(1) (definition of deputy part-time member)
181. The definition of a deputy part-time member would be removed as a consequence of the
repeal of section 15 discussed below in relation to Item 42.
Items 38 and 39 - Subsection 9(4) and Subsection 9A(3)
182. Item 38 relates to subsection 9(4) regarding the disposal of historical material in the
national historical collection. The existing subsection 9(4) which provides a power to
the Council, where it has resolved to dispose of such material, to dispose of the
28
material. Where the material is valued above a threshold of $250,000 the approval of
the Minister is required.
183. Item 39 relates to subsection 9A(3) regarding the disposal of historical material not in
the national historical collection. The existing subsection 9A(3) which provides a power
to the Council, where it has resolved to dispose of such material, to dispose of the
material. Where the material is valued above a threshold of $250,000 the approval of
the Minister is required
184. Items 38 and 39 would remove the value threshold for a disposal of material and insert
that a disposal is subject to the provisions of section 37 which relates to restrictions on
financial transactions (discussed below in Item 46). In the case of the NMA, this
threshold would be increased in Regulations from $250,000 to $2 million, at or below
which disposal of historical material would not require ministerial approval.
185. The Bill seeks to introduce a common threshold for all NCI disposals, prescribed in
regulations as $2 million (except for the NGA Regulations which proposes a $10
million threshold) and this is discussed in detail in Item 2.
Item 40 - Section 12
186. Item 40 would repeal section 12 of the Act. Section 12 requires the Council to perform
its functions and exercise its powers in accordance with any written directions that are
given to it from time to time by the Minister.
187. As discussed in Item 3, there is inconsistency between the enabling legislation of each
NCI in relation to the powers of the Minister to issue a written ministerial direction to
the NCI governing body. While this is a rarely used provision, there is merit in there
being a consistent power available to issue directions applying to the performance of
functions or the exercise of powers.
188. Section 12 would be remade at section 41A (Item 47) to be consistent with other NCI
Acts.
Item 41 - After subsection 13(3)
189. Item 41 would insert subsection (3A) whereby a person must not be appointed as a
NMA Council member or Chair as referred to in 13(1)(a) or 13(1)(c), for a term where
the sum of that term or any previous terms exceeds 9 years.
190. This amendment aims to standardise the provision across all Acts by introducing a
ceiling of nine years' service for members of a governing body and is discussed in more
detail above in relation to Item 4. Currently the NMA Act does not limit the number of
terms that can be served by an individual. The amendment would not affect current
appointments to the Council.
Item 42 - Section 15
191. Item 42 would repeal section 15 which relates to the appointment of deputies of part-
time members. Subsection 15(1) currently provides a power for a part-time member to
29
appoint a person, with the approval of the Minister, other than a member, to act as their
deputy. Subsection 15(2) allows a member to revoke an appointment of a deputy, which
takes effect once notice has been provided to the Minister. Subsection 15(3) enables a
deputy part-time member to resign by writing to the Minister. Subsection 15(4) enables
a deputy of a member to attend meetings in their absence, as a member. Subsection
15(5) prevents such an appointment being invalidated by a defect or irregularity in, or in
connection with, the appointment. Section 37 repeals subsection 3(1) (definition of a
deputy part-time member).
192. Apart from deputies of members, the NMA Act does not currently allow for specific
arrangements regarding an acting Chair or Deputy Chair.
193. Item 42 would repeal the appointment of deputies of part-time members and replace it
with powers related to the appointment of an acting Chair, acting Deputy Chair and
acting member. This would align the NMA Act to other NCI Acts.
194. Section 15(1) would enable a Deputy Chair to act as Chair during a vacancy in the
office of Chair or during any period when the Chair is absent from duty or from
Australia, or is unable to perform the duties of the office. It would note the rules that
apply to persons acting as the Chair are provided in section 33A of the AI Act.
195. Section 15(2) would enable the Council to appoint a member by written instrument to
act as the Deputy Chair during a period where the Deputy Chair is either acting as
Chair, absent from duty or Australia, or is unable to perform the duties of the office. It
would note the rules that apply to acting appointments are provided in sections 33AB
and 33A of the AI Act.
196. Section 15(3) would provide a power to the Minister to appoint a member by written
instrument to act as a member (other than as the Director, Chair or Deputy Chair)
during a vacancy in the office of a member or when a member is acting as the Deputy
Chair, absent from duty or from Australia, or unable to perform the duties of the office.
Section 15(3) would also note that for rules that apply to acting appointments, see
sections 33AB and 33A of the AI Act.
197. The amendment to this provision would remove the power for a member of the Council
to appoint their own deputy to that governing body. This provision has rarely, if ever,
been used and presents a risk to the functioning of the governing body as it does not
offer the level of due diligence afforded by the Government appointments process.
198. For consistency with other Acts, the provisions for the appointment of an acting Council
Chair and Deputy Chair are proposed. In the absence of this provision the appointment
of an acting Chair during a short-term vacancy in the office would require the approval
of the Prime Minister as described below. The new provision would enable: the Deputy
Chair to be automatically appointed to the role of Chair subject to meeting the terms of
subsection 15(1); the Council to appoint a Deputy Chair subject to meeting the terms of
subsection 15(2) and would provide a power to the Minister to appoint an acting
member subject to the terms of subsection 15(3).
199. The NMA Act does not currently provide an express power for the Minister to appoint
an individual to act as a member of the Council. Such a provision would offer a
30
mechanism for continuity or reasons of quorum, or other circumstances where there are
delays to filling vacancies on a longer term basis.
200. The Cabinet Handbook requires the approval of any acting arrangement for a period of
up to three months to be brought to the Prime Minister's attention, with the option of
one further extension of up to three months (bringing the total period to six months).
This provides a measure of control against acting arrangements being used in lieu of
regular appointment processes, but provides sufficient time for an appointment process
to be undertaken.
201. The Bill seeks to provide a power to the Minister to make certain acting appointments,
whether it is the Minister or the Governor-General who has the authority to make the
substantive appointments under the relevant Act.
Item 43 - Paragraphs 16(1)(a) and (b)
202. Item 43 would repeal paragraphs 16(1)(a) and (b) which relate to: (a) a part-time
member and (b) a deputy part-time member, and would substitute with (a) a part-time
member (removing reference to a deputy part-time member).
203. This amendment arises as a consequence of the proposal to remove the power for a part-
time member to appoint their own deputy as discussed in Item 42.
Item 44 - Subsection 20(6)
204. Section 20 includes the provisions related to meetings of the Council and subsection
20(6) specifies the terms for meeting quorum. Item 44 would omit "7 members
constitute a quorum" and would substitute "a quorum is constituted by a majority of
members".
205. As discussed in Item 23, the Bill seeks to standardise quorum to be the majority of
appointed members across all NCI governing bodies. This amendment would align the
Acts and ensures continuity of operations should there be vacancies in the governing
body membership.
Item 45 - At the end of section 32
206. Section 32 relates to the power of the Director to engage consultants. Item 45 would add
subsection 32(3) which would provides the Director with the power to delegate this
power. The delegation would be limited to an SES employee or acting SES employee,
of the NMA. The amendment would also note that sections 34AA and 34A of the AI
Act contain provisions relating to delegations. Subsection 32(4) would require the
delegate to comply with any written directions of the Director.
207. In the absence of a broader power for the Director to delegate powers and the absence of
any other functions that could be delegated, this power to delegate would be limited to
the engagement of consultants.
31
Item 46 - Section 37
208. Item 46 would repeal section 37 - Limit on contracts, which prevents the NMA, without
the Minister's approval, from entering a contract for subsection 37(a) the acquisition of
historical material, or subsection 37(b) in any other case, where the value exceeds
$250,000 or a higher amount specified in regulations. The current regulations specify a
threshold of $2 million for both (a) and (b).
209. Item 46 would replace section 37 with a standardised provision relating to restrictions
on financial provisions which aims to align the six NCI Acts as discussed in Item 9
above.
210. Subsection 37(1) would introduce standardised provisions which are subject to
thresholds stated in regulations, at or below which, the NCI is not required to seek the
approval of the Minister prior to entering a contract. The items would be: (a) the
acquisition of historical material; (b) the disposal of historical material; (c) the
acquisition of property, right and privilege, other than historical material; (d) the
disposal of property, right or privilege, other than historical material; (e) the
construction of a building; and (f) entry into a lease of land for a period of 10 years. The
first five items (a) to (e) would be subject to value thresholds specified in the respective
Regulations.
211. With the exception of paragraph 37(1)(f), all items in subsection 37(1) would remain
subject to an existing threshold value of $2 million. Paragraph 37(1)(f) would not be
subject to a monetary threshold.
212. Subsection 37(2) would provide that approval by the Minister under subsection 37(1) is
not a legislative instrument. This provision would be declaratory of the law rather than
prescribing a substantive exemption from the requirements of the Legislation Act 2003.
213. Subsection 37(3) would introduce a new provision that exempts from the thresholds,
any contracts that are for day-to-day operations ie. essential operational services such as
utilities, security, cleaning and routine general maintenance. As the value for a
particular service is considered on a cumulative basis, multi-year procurements
regularly exceed the applicable threshold where they are extended or renewed. This
requires new approval by the Minister on each occasion and can present a risk, for
example, where there are time limitations to secure discounts, or where a whole of
Government agreement is being negotiated. Prior to entering into an arrangement, NCIs
seek independent expert advice on the terms of arrangements as needed to ensure value
for money.
214. Subsection 37(4) would introduce an exemption for the acquisition and disposal of
investments. This would support the amendment in Schedule 1 to provide the power to
NCIs to invest revenue form donations more broadly than permitted by the PGPA Act.
215. Given the responsibility of governing bodies to manage investment activities within the
parameters of the investment policy required under the Bill, and that only donated funds
can be used, and therefore low risk to the operations of NCIs, a threshold for ministerial
approval for transactions related to investments is considered contrary to the intention
of the newly introduced investment provisions
32
Item 47 - After section 41
216. Item 47 would insert section 41A to provide a power to the Minister to give directions
to the Council. Subsection 41A(1) would enable the Minister by legislative instrument
to give written directions to the Council about the performance of its functions or the
exercise of its powers. It would note that section 42 (disallowance) and Part 4 of
Chapter 3 (sunsetting) of the Legislation Act 2003 would not apply to the directions (see
regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
Subsection 41A(2) limits directions to be of a general nature only, and subsection
41A(3) requires the Council to comply with such a direction.
217. The Bill seeks to standardise this provision across the six NCI Acts which is discussed
in greater detail above in Item 3.
Item 48 - Section 42
218. Item 48 would replace section 42 - Delegation, which currently provides a power for the
Minister to delegate all of the Minister's functions or powers under the Act (as
discussed in Item 1 above) without limiting the powers that may be delegated or who
the delegation can be made to.
219. The amendment to section 42 would substitute this with a standardised provision.
Subsection 42(1) would limit delegation to the Secretary of the Department or an SES
employee, or acting SES employee, in the Department. Subsection 42(2) would exclude
the following powers from delegation: making land or historical material available for
the Museum (section 8); appointing acting Council members (section 15); or giving
directions to the Council (section 41A).
220. The power for the Minister to delegate functions and powers is discussed above in
relation to Item 1. It aims to standardise this power across the Acts.
Item 49 - Application, saving and transitional provisions
221. Item 49(1) would provide that the amendments of sections 9 and 9A of the NMA Act
made by Schedule 2 apply where the Council resolves, on or after the commencement
of this item, that historical material be disposed of. Disposal of historical material
following a Council resolution on or after commencement of the Bill would therefore
need to be made in compliance with sections 9 and 9A, if required.
222. Item 49(2) would provide that section 12 of the NMA Act, as in force immediately
before the commencement of this item, would continue to apply on and after that
commencement in relation to a direction in force under that section immediately before
that commencement. This would preserve any direction in force made under section
13(3A) by the Minister to the Council.
223. Item 49(3) would provide that subsection 13(3A) of the NMA Act, as inserted by
Schedule 2,would apply in relation to an appointment made under subsection 13(2) of
that Act on or after the commencement of this item, whether a term of previous
appointment referred to in paragraph 13(3A)(b) of that Act occurred before, on or after
33
that commencement. Subsection 13(3A) would provide for the introduction of a
maximum of 9 years' service in total by individual Council members and the
Chairperson. This item would provide that subsection 13(3A) would apply to an
appointment made from commencement of the Act, but that any periods of previous
appointment that occurred before, on or after that commencement would count towards
this 9 year maximum period. The amendment would not impact on the terms of any
current appointments.
224. Item 49(4) would provide that the repeal and substitution of section 37 of the NMA Act
made by Schedule 2 would not affect the validity of an approval in force under that
section immediately before the commencement of this item. Currently, section 37
requires the Minister to provide approval for the Museum to enter into certain contracts
or for entering into certain leases for land. This item would provide that the validity of
an approval already in force will not be affected.
225. Item 49(5) would provide that subsection 37(3) of the NMA Act, as substituted by
Schedule 2, would apply on and after the commencement of this item in relation to
contracts entered into before, on or after that commencement. This would mean that
ministerial approval would not be required in relation to contracts for the supply of a
service for the day-to-day operations of the Museum, whether the relevant contract was
entered into before, on or after commencement of the Bill
National Portrait Gallery of Australia Act 2012 (NPGA Act)
Item 50 - At the end of Part 3
226. Item 50 would add section 29A which provides a delegation power for the Board.
Section 29A(1) would enable the Board to delegate, in writing, its power under section
11 of the Act.
227. Section 11 of the NPGA Act relates to the disposal of works of art and related material.
Subsection 11(1) enables the Board to resolve that a work of art or related material in
the national collection may be disposed of by sale, exchange, gift or destruction if the
Board is satisfied that the work of art or material is: unfit for that collection; or is not
required as part of that collection. Subsection 11(2) prevents disposal by destruction
unless the work of art or related material has no saleable value. Subsection 11(3) would
provide the power to dispose of the work of art or related material but is subject to
section 47 - Restrictions on financial transactions.
228. Section 29A would enable the Board to delegate this power to (a) the Director; (b) a
Board member; or (c) an SES employee, or acting SES employee, of the NPGA. It
would note that Sections 34AA to 34A of the AI Act contain provisions relating to
delegations.
229. Subsection 29A(2) would require the delegate, when exercising a delegation, to comply
with any written directions of the Board. Subsection 29A(3) would preserve the
delegation where there is change to the membership of the Board. Subsection 29A(4)
would enable the delegation to be revoked by the Board.
34
230. This amendment would provide flexibility in the management of the disposal of works
of art and related material, should the Board wish to delegate such a power.
Item 51 - Part 5
231. Item 51 would repeal Part 5 which relates to Planning. Part 5 specifically relates to the
corporate plan and requires under subsection 44(1) that the plan include any matters as
the Minister requires. Subsection 44(2) provides the Minister with a power to give the
Board written guidelines for the Board in determining whether a matter is covered in the
plan and that such a guideline is not a legislative instrument.
232. The Bill seeks to remove provisions over and above the requirements of the PGPA Act
in relation to planning and reporting as discussed in Item 6. Item 51 would remove an
express provision regarding the corporate plan that does not apply to other NCIs and is
not required under PGPA Act. Should the Minister wish to direct the Gallery, a general
power to give directions is available under section 50.
Item 52 - Section 47
233. Item 52 would replace section 47 with a standardised provision relating to restrictions
on financial provisions which aims to align the six NCI Acts as discussed in Item 9
above.
234. Subsection 47(1) would introduce the six standardised provisions which are subject to
thresholds stated in regulations, at or below which, the NCI is not required to seek the
approval of the Minister prior to entering a contract. The items would be: (a) the
acquisition of a portrait, another work of art or related material; (b) the disposal of a
portrait, work of art or related material; (c) the acquisition of property, right and
privilege, other than a portrait; (d) the disposal of property, right or privilege, other than
a portrait; (e) the construction of a building; and (f) entry into a lease of land for a
period exceeding 10 years. The first five items (a) to (e) would be subject to value
thresholds prescribed in the respective regulations.
235. The existing subsection 47(1) included four of those provisions. Item 52 would specify
two new provisions: (a) the acquisition of a portrait, another work of art or related
material; and (b) the disposal of a portrait, another work of art or related material.
236. With the exception of paragraph 47(1)(f), all items in subsection 47(1) would be subject
to a threshold value prescribed in Regulations, aligning the Gallery with all other NCIs.
The existing threshold for the Gallery prescribes $1 million and this Bill seeks to
prescribe in Regulations and amount of $2 million which would align the NPGA with
most other NCIs. Paragraph 47(1)(f) would not be subject to a monetary threshold.
237. Subsection 47(2) would provide that approval by the Minister under subsection 47(1) is
not a legislative instrument. The provision would be merely declaratory of the law
rather than prescribing a substantive exemption from the requirements of the Legislation
Act 2003.
238. Subsection 47(3) would introduce a new provision that exempts from the thresholds,
any contracts that are for day-to-day operations ie. essential operational services such as
35
utilities, security, cleaning and routine general maintenance. As the value for a
particular service is considered on a cumulative basis, multi-year procurements
regularly exceed the applicable threshold where they are extended or renewed. This
requires new approval by the Minister on each occasion and can present a risk, for
example, where there are time limitations to secure discounts, or where a whole of
Government agreement is being negotiated. Prior to entering into an arrangement, NCIs
seek independent expert advice on the terms of arrangements as needed to ensure value
for money.
239. Subsection 47(4) would introduce an exemption for the acquisition and disposal of
investments. This would support the amendment in Schedule 1 to provide the power to
NCIs to invest revenue from donations more broadly than permitted by the PGPA Act.
240. Given the responsibility of governing bodies to manage investment activities within the
parameters of the investment policy required under the Bill, and that only donated funds
can be used, and therefore low risk to the operations of NCIs, a threshold for ministerial
approval for transactions related to investments is considered contrary to the intention
of the newly introduced investment provisions.
Item 53 - Application and savings provisions
241. Item 53(1) would provide that the repeal and substitution of section 47 of the NPGA
Act made by Schedule 2 would not affect the validity of an approval in force under that
section immediately before the commencement of this item. Currently, section 47
requires the Minister to provide approval for the NPGA to enter into certain contracts or
certain leases for land. This item would provide that the validity of an approval already
in force would not be affected.
242. Item 53(2) would provide that subsection 47(3) of the NPGA Act, as substituted by
Schedule 2, applies on and after the commencement of this item in relation to contracts
entered into before, on or after that commencement. This would mean that ministerial
approval would not be required in relation to contracts for the supply of a service for the
day-to-day operations of the NPGA, whether the relevant contract was entered into
before, on or after commencement of the Bill.
36