Bills Digest No.
50, 2020–21
PDF version [460KB]
Philip Hamilton
Politics and Public Administration Section
22
February 2021
Contents
Purpose of the Bill
Structure of the Bill
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 3
December 2020
House: House of
Representatives
Portfolio: Communications,
Cyber Safety and the Arts
Commencement: The
Act will commence on the earlier of proclamation, or six months after Royal
Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at February 2021.
Purpose of
the Bill
The purposes of the National Collecting Institutions
Legislation Amendment Bill 2020 (the Bill) are:
- to
allow six national collecting institutions (NCIs)[1]
to invest donated funds otherwise than in accordance with low risk options
provided for in subsection 59(1) of the Public Governance,
Performance and Accountability Act 2013 (PGPA Act) and
- to
standardise various administrative provisions across the NCIs’ enabling Acts,[2]
including in relation to: ministerial approvals, directions and delegations;
length of tenure on governing bodies; financial thresholds; planning and
reporting; and other relatively minor provisions.
Structure of
the Bill
This Bill comprises two schedules:
- Schedule
1 comprises amendments in relation to powers to invest donated funds and
- Schedule
2 comprises amendments that aim to standardise various administrative
provisions across the NCIs’ enabling Acts.
Committee
consideration
Senate Environment and
Communications Legislation Committee
The Bill was referred to the Senate Environment and
Communications Legislation Committee for inquiry
and report by 12 February 2021 (extended from 29 January 2021). The Committee
held a hearing
on 28 January 2021 at which no issues of concern were raised.[3]
In their evidence to the Committee, the NCI agency heads indicated that they
supported the proposed amendments.[4]
In its report, the Committee recommended passage of the Bill.[5]
Senate Standing Committee for the
Scrutiny of Bills
In its Scrutiny Digest 18/20, the Senate Standing
Committee for the Scrutiny of Bills stated it had ‘no comment’ in relation
to the Bill.[6]
Policy
position of non-government parties/independents
No major issues of concern were raised at a Senate Committee
hearing (see above). In their additional comments in the Committee’s report on
the Bill, the Australian Greens did not oppose the Bill, but stated ‘NCIs
should be appropriately funded by government sources and not reliant on private
donations’.[7]
Position of
major interest groups
In their evidence to a Committee hearing
on 28 January 2021, the NCI agency heads indicated that they supported the
proposed amendments.[8]
For example, the Director of the NMA observed:
… over the course of the last five years it would be fair to
say our board; indeed, the boards of our institutions and the responsible
agency heads have argued for greater latitude around the rules governing
investment of donated moneys to our institutions. This is something that has
been provoked by the donors themselves being concerned that we had constraints
in the way that we could usefully invest their moneys … [T]he other changes,
some of the streamlining also of disposals and threshold amounts with disposals
for materials being lifted, are part of a response to what are operational
issues that have arisen over recent years given that those figures haven't been
amended for some time … [W]e have [also sought] some streamlining and some
clarity and some greater correspondence between our acts around these
provisions.[9]
In its submission to the Senate committee inquiry, the National
Public Galleries Alliance, which represents the small-to-medium public gallery
sector, noted:
We understand that the proposed legislative changes have been
developed in consultation with the NCIs. [T]he NGPA supports all of the
amendments … We believe the Bill will enable the National Gallery of Australia
and the National Portrait Gallery to increase earned income – strengthening
their financial sustainability, and streamline the processes involved in
administering the requirements of the Act.[10]
Recent reports by the Joint Standing Committee on the
National Capital and External Territories[11]
and the Australian National Audit Office (ANAO)[12]
considered donations (funds and collection items, respectively), but did not
discuss or receive evidence about limitations on or options for the investment
of donated funds.
Financial
implications
The Explanatory
Memorandum states that ‘the Bill is not expected to have any significant
impact on Commonwealth expenditure or revenue’.[13]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[14]
Parliamentary Joint Committee on
Human Rights
In its Human rights scrutiny report 15 of 2020, the
Parliamentary Joint Committee on Human Rights noted ‘no comment’ in relation to
the Bill.[15]
Key issues
and provisions
Schedule 1: Investment of donated
funds
NCI Governance arrangements
Each of the six NCIs are established under their own Act
of Parliament (enabling Act) which sets out the purposes and powers of each
NCI.[16]
The NCIs are permitted to receive donations, endowments and bequests, and have
done so to varying degrees, in some cases through fundraising foundations
established for that purpose.[17]
The NCIs are also subject to the Public Governance,
Performance and Accountability Act 2013 (PGPA Act) and the
subsidiary Public
Governance, Performance and Accountability Rule 2014 (PGPA Rule), which set
out governance and accountability arrangements applicable to all Government
entities.
Current limitations on investments
Subsection 59(1) of the PGPA Act governs how Corporate
Commonwealth Entities (CCEs) such as the NCIs may invest funds.[18]
Subsection 59(1) provides that investments of funds for which the entity is
responsible are not permitted unless:
- the
funds are not immediately required for the purposes of the entity and
-
the investment is in low risk financial products: bank deposits;
securities guaranteed by the Commonwealth, a state or a territory; other
investments approved by the Minister for Finance; or any other form of
investment prescribed by PGPA Rule.[19]
Provisions in Schedule 1 would exempt funds donated
to the six NCIs from those limitations, thereby providing opportunities for the
NCIs to seek greater returns on the investment of donated funds.
The Explanatory Memorandum states ‘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’.[20]
This view was also stated by the NCI agency heads at a Committee hearing
on 28 January 2021.[21]
Proposed investment arrangements
for donated funds
Items 1 and 2 amend the ANMM Act to
insert a provision that the ANMM may invest specified funds otherwise than in
accordance with section 59 of the PGPA Act. Proposed subsection 45(3)
would allow the following categories of funds to be invested ‘in any other form
of investment’ in addition to investments authorised by the PGPA Act:
-
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 and
-
money received from an investment made under proposed
subsection 45(3) or from the disposal of such an investment.
However, donated revenue or other property held by the
ANMM on trust, or accepted subject to a condition, would continue to be dealt
with in accordance with the trust obligations or conditions.[22]
Items 4–5, 7–8, 10–11, 13–14 and 16–17 make the
same amendments to the NFSA Act, NGA Act, NLA Act, NMA Act and NPGA
Act, respectively.
It is intended that the new provisions ‘would also apply
to moneys received by any foundation associated with [an NCI]’ but ‘the
provisions would not rely on a separate foundation being established by the NCI
for investment purposes [and] those NCIs without foundations may still receive
philanthropic support by trust, or directly as cash’.[23]
At the Committee hearing
on 28 January 2021, the NFSA observed that the investment arrangements will
have ‘minimal impact on the NFSA as we do not receive considerable amounts of
financial donations. We receive our donations in the form of collection items’.[24]
In this context, it is worth noting that the Bill will allow, but not require,
donated revenue to be invested in ways not permitted under the PGPA Act.
As set out in the Explanatory Memorandum states that ‘investing beyond the
limitations established by the PGPA Act would be at the discretion of
the governing bodies of each of the NCIs’, and ‘the Bill does not seek to
compel [an] NCI to undertake broadened investment activity’.[25]
Investment policy
Under the proposed arrangements, an investment, or the disposal
of such an investment, must be made in accordance with the relevant NCI’s
investment policy.[26]
While there is no requirement for an NCI to formulate such a policy if it does
not intend to expand investments beyond the limits imposed by the PGPA Act,
it must formulate an investment policy to meet the proposed legislative
requirements for broader investment of donations proposed by the Bill. Item
3 amends the ANMM Act to provide that the ANMM’s governing body may
formulate a written policy which outlines: the investment strategy; benchmarks
and standards for assessing the performance of the investments; and risk
management of such investments. Items 6, 9, 12, 15 and 18 make
identical amendments to the NFSA Act, NGA Act, NLA Act, NMA Act and NPGA
Act, respectively.
The Bill does not prescribe how a policy is to be formulated,
but if an investment policy is formulated, a copy must be published on the
NCI’s website.[27]
Investments need not be included on the website, but would be reported in the
NCI’s financial statements in its annual report.[28]
Each NCI must conduct periodic reviews of its investment policy.[29]
Notably, while an NCI is required to comply with any
investment policy in place, the amendments provide that a failure to do so does
not affect the validity of any transaction.[30]
Discussion of issues
Interaction with PGPA Act
The six enabling Acts would be amended to effectively
include an exemption for certain types of funds from the narrow investment
rules under subsection 59(1) of the PGPA Act. However, the Bill does not
amend the PGPA Act to make it clear that other Acts may include
provisions that enable some corporate Commonwealth entities to invest money outside
the limits of what is permitted under subsection 59(1).
In addition, section 8 of the PGPA Act defines
‘relevant money’ as money that is held by, or standing to the credit of any
bank account, of the Commonwealth or a Commonwealth entity. Without doing so
explicitly, the Bill appears to create a new subset of ‘relevant money’ based
on the source of the funds.
There may be no technical obstacles to the approach taken
by the Bill. However, transparency may be better facilitated if the PGPA Act
was amended to include, for example:
-
an explanation of the relationship between ‘relevant money’ (which
is defined as money held to the credit of a Commonwealth entity) and the new
subset dealt with in the current Bill (which can be broadly defined as money
received from donors) and
-
a specific provision making clear that subsection 59(1) is not
applicable to the new subset of funds held by the NCIs and sourced from donors.
Application
Item 19 provides that the amendments in Schedule 1
apply to money accepted or received before commencement. As explained by the Explanatory
Memorandum:
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.[31]
[emphasis added]
It appears unlikely that retrospectivity would have
detrimental consequences for any interested parties or stakeholders.
Schedule 2: Other amendments
The Minister’s Second Reading speech noted:
The bill also provides an opportunity to make administrative
amendments to the enabling Acts of the six national collecting institutions,
which reflect differing drafting approaches over the period 1960 to 2013 and
are hence inconsistent with each other. Some of these Acts also contain
provisions that are no longer necessary in light of the commencement of other
legislation of broader application.[32]
The amendments proposed in Schedule 2 fall into the
following categories:
1. Ministerial
approval not needed for certain investments
2. Ministerial
directions
3. Ministerial
delegations
4. Governing
bodies
5. Financial
thresholds
6. CEO
delegations; planning and reporting; NGA storage
1. Ministerial approval not needed
for investments
As noted above, amendments made by Schedule 1 would insert
into the six enabling Acts a provision that an NCI may invest donated funds otherwise
than in accordance with section 59 of the PGPA Act. Items 9, 14,
24, 34, 46, and 52 of Schedule 2 amend the enabling Acts to ensure
that written approval of the Minister is not required for such investments.[33]
2. Ministerial directions (ANMM, NGA, NLA and NMA)
The Explanatory Memorandum notes that ‘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’.[34]
The NLA Act currently has no provision for the Minister to issue
directions, while the other Acts vary in terms of the scope of the issues which
directions may cover, with the NGA Act being the most restricted, with
Ministerial directions being limited to staffing of the National Gallery. Amendments
in Schedule 2 will bring four enabling Acts into broad alignment with the NFSA
Act and NPGA Act by:
-
giving the Minister the power to give directions by legislative
instrument to the governing bodies of the ANMM, NGA, NLA and NMA (as
applicable) and
-
removing a requirement for such directions to be tabled in the
Parliament, as legislative instruments must be published on the Federal
Register of Legislation.[35]
Such legislative instruments will not be subject to
disallowance by the Parliament, as directions by a Minister to a person or body
are exempt from this process.[36]
The PGPA Rule requires that such directions must be
disclosed in NCI annual reports.[37]
At the Committee hearing
on 28 January 2021, the Department of Infrastructure, Transport, Regional
Development and Communications noted that while provision for ministerial
directions is common in the arts portfolio legislation, use of ministerial
directions is rare. Observing that ministerial directions are intended to be
used for general or policy issues (rather than in relation to specific cases or
issues), officials gave as an example a government-wide direction in the early
2000s about foreign exchange risk management.[38]
3. Ministerial delegations (ANMM, NGA, NLA and NMA)
The Explanatory Memorandum notes that ‘the Bill seeks to
align [ministerial] delegation provisions across the six Acts’.[39]
The ANMM Act, NMA Act and NPGA Act are the only NCI Acts which
currently provide for the delegation of the Minister’s functions or powers. The
NMA Act allows the Minister to delegate any of the Minister’s powers (other
than the power of delegation) to any person, while the ANMM Act and NPGA
Act provide for more restricted delegation powers.[40]
The proposed amendments will bring five enabling Acts into alignment with the NPGA
Act.[41]
Under proposed provisions, the Minister may delegate specific powers to the
Secretary of the Department and relevant SES employees or acting SES employees
of the Department. The Minister may delegate most powers, including:
… 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.[42]
The Minister would not be able to delegate the 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.[43]
In addition, item 1 would repeal subsection 8(6) of
the ANMM Act, which provides that the Minister may delegate powers
related to making land and other assets controlled by the Commonwealth
available to the ANMM. The Minister does not have this power of delegation in
relation to other NCIs.[44]
4. Governing bodies
Membership limited to nine years,
including acting (ANMM, NGA, NLA, and NMA)
Under proposed provisions, there would be a maximum
service period of nine years in total (including periods of acting) for an
individual member of an NCI’s governing body. Amending items will bring four
enabling Acts into alignment with the NFSA Act and NPGA Act.[45]
In relation to current NCI board and council members, the
Explanatory Memorandum notes:
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.[46]
The maximum service cap would not apply to NCI agency
heads, or representative members on the ANMM Council (one position) or the NLA
Council (two positions).[47]
In relation to the representative members on the NLA
Council, items 29, 30 and 31 would amend section 15 of the NLA
Act to repeal a requirement that the Governor-General terminate the
appointment of a Senator or Member of Parliament elected to sit on the National
Library of Australia Council if their term as a Senator or Member of Parliament
ends. In line with existing arrangements for parliamentary representatives
elected to the National Archives of Australia Advisory Council, the NLA
representative appointments would end automatically, without the need for a
letter of resignation or advice to the Governor-General.[48]
Quorum requirements (ANMM, NLA and
NMA)
The NGA Act and NMA Act currently specify a
minimum of seven members as a quorum and the NLA Act specifies five.[49]
Proposed amendments to these three Acts would standardise a quorum as the
majority of appointed members, aligning with existing provisions in the NFSA
Act, ANMM Act and NPGA Act.[50]
The Explanatory Memorandum argues that aligning the Acts will ‘[ensure]
continuity of operations should there be vacancies in the governing body
membership, or absences from meetings’.[51]
Deputy and acting arrangements (NGA
and NMA)
Amendments to the NGA Act (item 21) and the NMA
Act (item 42) would bring those Acts into alignment with other NCI
Acts in relation to the appointment of an acting Chair, an acting Deputy Chair
and acting members and would remove the ability for part-time members to
appoint a person as their deputy.[52]
Council minutes (ANMM)
Item 5 would omit from subsection 23(10) of the ANMM
Act the requirement for the ANMM Council to forward a copy of the minutes
of its meetings to the Minister. Other NCI governing bodies are not required to
do this. Minutes of governing body meetings are routinely made available to the
portfolio Department and may be provided to the Minister on request.[53]
Board delegations (NPGA)
The NGA Act and the NMA Act currently
provide that their councils can delegate all or any of their powers.[54]
Item 50 proposes amending the NPGA Act to
enable the NGPA Board to delegate responsibility in relation to the disposal of
works of art and related material.[55]
The Board would be permitted to delegate this power to the NPGA Director; a
Board member; or an SES employee, or acting SES employee, of the NPGA. Proposed
subsection 29A(2) would require the delegate to comply with any written
directions of the Board.
5. Financial thresholds
Currently ‘all NCIs require ministerial approval under
their enabling legislation, to enter into a transaction above a specified
financial threshold’.[56]
However, the Explanatory Memorandum notes inconsistencies, in that ‘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’.[57]
Amending items will align the six enabling Acts, removing
references to specific financial thresholds within the primary legislation.[58]
The Second Reading speech foreshadows that the ‘regulations of each of the Acts
will be remade, where necessary, to include a common threshold of $2 million
below which ministerial approval would not be required prior to entering a
contract’.[59]
In its response
to a question on notice at the Senate Environment and Communications
Legislation Committee inquiry
into the Bill, the Department of Infrastructure, Transport, Regional
Development and Communications advised that financial thresholds regulations
will be disallowable.[60]
It is proposed that under remade regulations the NPGA’s
threshold of $1 million would increase to $2 million, bringing it in line
with other NCIs. The NGA currently has a $10 million threshold for acquiring
works of art. It is proposed that remade regulations will retain this amount,
and introduce a corresponding $10 million threshold for disposals of works
of art.[61]
In addition:
The proposed amendments will list six common categories of
arrangement which will have corresponding threshold values listed in
regulations … acquisition and the disposal of collection
material; the acquisition and disposal of property, right and
privilege; building construction; and entering into a lease of land.
[emphasis added][62]
Contracts for day-to-day operations are exempt from the
new thresholds—these include ‘essential operational services such as utilities,
security, cleaning and routine general maintenance’.[63]
The Explanatory Memorandum notes:
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.[64]
Exemptions for ‘day-to-day operations’ will be aligned in
the six enabling Acts.[65]
Amendments requiring the disposal of collection items to
be disclosed in annual reports will align the ANMM and the NLA with other NCIs.[66]
6. CEO delegations; Planning and
reporting; NGA storage
CEO delegation powers (ANMM, NLA
and NMA)
Schedule 2 also amends the CEO delegation powers in
respect of the ANMM, NLA and NMA. The NFSA Act, NGA Act and NPGA Act
do not include CEO delegation powers.
Items 7 and 8 retain the delegation powers
under the ANMM Act and insert a qualification that the delegate must
comply with any written directions. Item 33 amends the NLA Act to
repeal the Director-General’s delegation powers as there are no powers
available under the NLA Act which may be meaningfully delegated.[67]
Section 32 of the NMA Act relates to the power of
the NMA Director to engage consultants. Item 45 would add proposed
subsection 32(3) which would provide the Director with the power to
delegate this power to an SES employee or acting SES employee of the NMA.[68]
Planning and reporting requirements
(ANMM, NFSA and NPGA)
The Second Reading speech outlined amendments to align the
NCIs’ planning and reporting requirements by removing provisions that are additional
to those required by the PGPA Act.[69]
Amendments to three enabling Acts would:
... remove the requirement to seek the Minister’s approval [for
their corporate plans], rather it will require [each NCI] 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 [NCI’s] preparation of an annual operational plan.[70]
Collection storage (NGA)
Item 17 would repeal section 5 of the NGA Act,
which currently requires that the national collection shall be housed in the
Australian Capital Territory (ACT). At a Committee hearing
on 28 January 2021, officials noted that other NCIs are able to store
their collections within or outside the ACT. Officials suggested that cost
efficiencies may be achievable by allowing the NGA the option of storing
collection items in other capital cities or regional centres.[71]
Paragraph 6(1)(b) of the NGA Act currently
specifies that the NGA’s functions include to exhibit, or make available for
exhibition by others, works of art from the national collection or that are
otherwise in the Gallery’s possession. Item 18 would add in paragraph
6(1)(b) the words ‘in Australia or elsewhere’. This addition would clarify that
‘the exhibition of works is not limited to within Australia’, which in turn
would support the NGA’s ‘important international exchange and exhibition
programs’.[72]
[1]. The
six national collecting institutions are: the Australian National Maritime
Museum (ANMM); the National Film and Sound Archive of Australia (NFSA); the
National Gallery of Australia (NGA); the National Library of Australia (NLA);
the National Museum of Australia (NMA); and the National Portrait Gallery of
Australia (NPGA). All are in the Infrastructure, Transport, Regional
Development and Communications portfolio: Administrative
Arrangements Order - 1/2/2020.
[2]. The
enabling Acts 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); and National Portrait
Gallery of Australia Act 2012 (NPGA Act).
[3]. Senate
Environment and Communications Legislation Committee, Official
committee Hansard, 28 January 2021, p. 3.
[4]. Ibid.,
pp. 1–4.
[5]. Senate
Environment and Communications Legislation Committee, Inquiry
into the provisions of the National Collecting Institutions Legislation
Amendment Bill 2020, The Senate, Canberra, February 2021, p. 17.
[6]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 18, 2020, The Senate, Canberra, 9 December 2020, p. 31.
[7]. Senate
Environment and Communications Legislation Committee, ‘Australian Greens additional
comments’, Inquiry
into the provisions of the National Collecting Institutions Legislation
Amendment Bill 2020, The Senate, Canberra, February 2021, p. 19.
[8]. Senate
Environment and Communications Legislation Committee, Official
committee Hansard, op. cit., pp. 1–4.
[9]. M
Trinca (Director, NMA), Evidence
to Senate Environment and Communications Legislation Committee, Inquiry into
National Collecting Institutions Legislation Amendment Bill 2020, 28 January
2021, p. 2.
[10]. National
Public Galleries Alliance, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the National Collecting Institutions Legislation Amendment Bill 2020, 4
January 2021, p. 1.
[11]. Joint
Standing Committee on the National Capital and External Territories (JSCNCET), Telling
Australia’s Story—and why it’s important: report on the inquiry into Canberra’s
national institutions, JSCNCET, Canberra, 2019, pp. 112–116.
[12]. Australian
National Audit Office (ANAO), Management of
the national collections, Audit report, 46, 2017–18, ANAO, Barton, ACT,
2018. This report considered the NGA and Australian War Memorial collections. ANAO,
Management
of the national collections–follow-on, Audit report, 29, 2020–21, ANAO,
Barton, ACT, 2021. This report considered the NFSA and NLA collections.
[13]. Explanatory
Memorandum, National Collecting Institutions Legislation Amendment Bill
2020, p. 1.
[14]. The
Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory
Memorandum to the Bill.
[15]. Parliamentary
Joint Committee on Human Rights, Human rights
scrutiny report, 15, 2020, 9 December 2020, p. 6.
[16]. The
enabling Acts are: ANMM Act; NFSA Act; NGA Act; NLA Act;
NMA Act; and NPGA Act.
[17]. Foundations
have been established by the ANMM,
NGA and NPGA.
[18]. As
their enabling legislation establishes that they are legally separate from the
Commonwealth, for the purposes of the PGPA Act the NCIs are
classified as Corporate Commonwealth Entities (CCEs). In contrast, entities
such as departments are legally part of the Commonwealth, and so are classified
as Non-corporate Commonwealth Entities (NCEs). See section 11 of the PGPA Act.
[19]. Explanatory
Memorandum, p. 4.
[20]. Ibid.,
p. 1.
[21]. Senate
Environment and Communications Legislation Committee, Official
committee Hansard, op. cit., p. 3.
[22]. Explanatory
Memorandum., p. 5; ANMM Act, subsection 50(2).
[23]. Explanatory
Memorandum, pp. 5, 6.
[24]. Senate
Environment and Communications Legislation Committee, Official
committee Hansard, op. cit., p. 3.
[25]. Explanatory
Memorandum, p. 6.
[26]. ANMM
Act, proposed subsection 45(4); NFSA Act, proposed
subsection 38(4); NGA Act, proposed subsection 37(4); NLA
Act, proposed subsection 22(4); NMA Act, proposed
subsection 35(4); NPGA Act, proposed subsection 46(4). Also
see: Fletcher, ‘Second
reading speech’, op. cit., p. 10435.
[27]. ANMM
Act, proposed subsection 46(2); NFSA Act, proposed
subsection 38A(2); NGA Act, proposed subsection 37A(2); NLA Act,
proposed subsection 23(2); NMA Act, proposed subsection
36(2); and NPGA Act, proposed subsection 46A(2).
[28]. Explanatory
Memorandum, p. 6.
[29]. ANMM
Act, proposed subsection 46(3); NFSA Act, proposed subsection
38A(3); NGA Act, proposed subsection 37A(3); NLA Act,
proposed subsection 23(3); NMA Act, proposed subsection
36(3); and NPGA Act, proposed subsection 46A(3).
[30]. ANMM
Act, proposed subsections 46(4), (5); NFSA Act, proposed
subsections 38A(4), (5); NGA Act, proposed subsections 37A(4),
(5); NLA Act, proposed subsections 23(4), (5); NMA Act,
proposed subsections 36(4), (5); NPGA Act, proposed
subsections 46A(4), (5).
[31]. Ibid.,
p. 8.
[32]. Fletcher,
‘Second
reading speech’, op. cit., p. 10436.
[33]. ANMM
Act, proposed subsection 47(5); NFSA Act, proposed
subsection 39(4); NGA Act, proposed subsection 38(4); NLA
Act, proposed subsection 24(4); NMA Act, proposed
subsection 37(4); NPGA Act, proposed subsection 47(4). Also
see: Fletcher, ‘Second
reading speech’, op. cit., p. 10437.
[34]. Explanatory
Memorandum, p. 10.
[35]. Items
3, 10 and 11 amend the ANMM Act; item 25 amends the NGA
Act; item 35 amends the NLA Act; and items 40 and
47 amend the NMA Act.
[36]. Legislation Act
2003, paragraph 44(2)(b) and Legislation
(Exemptions and Other Matters) Regulation 2015, section 9, table item
2.
[37]. Public Governance,
Performance and Accountability Rule 2014, paragraph 17BE(d); Explanatory
Memorandum, p. 10.
[38]. Senate
Environment and Communications Legislation Committee, Official
committee Hansard, op. cit., p. 10. See also: Department of
Finance, ‘Foreign
exchange risk management’, Department of Finance website, n.d.
[39]. Explanatory
Memorandum, p. 8.
[40]. NMA
Act, section 42; NPGA Act, section 51; ANMM Act, subsection
8(6).
[41]. Item
11 amends the ANMM Act; item 15 amends the NGA Act; item
35 amends the NLA Act; and item 48 amends the NMA Act.
[42]. Ibid.,
p. 16.
[43]. Ibid.,
pp. 15–16.
[44]. Ibid.,
p. 8.
[45]. Item
4 amends the ANMM Act; item 20 amends the NGA Act;
item 28 amends the NLA Act; and item 41 amends the NMA
Act. The existing provision in the NFSA Act is subsection 11(4) and
in the NPGA Act, subsection 16(5).
[46]. Explanatory
Memorandum, p. 11.
[47]. Ibid.,
pp. 10–11.
[48]. NLA
Act, proposed subsection 15(1A); Archives Act 1983,
subsection 15(4); Fletcher, ‘Second
reading speech’, House of Representatives, Debates, 3 December 2020,
p. 10437.
[49]. NGA
Act, subsection 20(6); NMA Act, subsection 20(6); NLA Act,
subsection 16(6).
[50]. Item
23 amends the NGA Act; item 32 amends the NLA Act; item
44 amends the NMA Act. For existing provisions see: subsection
23(5) of ANMM Act; subsection 18(2) of the NFSA Act; subsection
24(1) of the NPGA Act.
[51]. Explanatory
Memorandum, p. 22.
[52]. Ibid.,
pp. 21–22, 30–31.
[53]. Ibid.,
p. 11.
[54]. NGA
Act, section 22; NMA Act, section 22.
[55]. NPGA
Act, section 11 and proposed section 29A.
[56]. Explanatory
Memorandum, p. 9.
[57]. Ibid.,
p. 13. Section 47 of Australian
National Maritime Museum Act 1990 specifies $250,000, section 7 of Australian National
Maritime Museum Regulations 2018 specifies $2 million; section 39 of National Film and
Sound Archive of Australia Act 2008 specifies ‘the amount prescribed by
the regulations’, section 6 of the National Film and
Sound Archive of Australia Regulations 2018 specifies $2 million; section
38 of National
Gallery Act 1975 specifies various amounts, from $100,000 to $450,000; section
6 of National
Gallery Regulations 2018 specifies $10 million for art acquisition and $2 million
otherwise; section 7A of National Library
Act 1960 specifies $250,000, section 6 of National Library
Regulations 2018 specifies $2 million; section 37 of National Museum of
Australia Act 1980 specifies $250,000, section 6 of National Museum of
Australia Regulations 2019 specifies $2 million; section 47 of National Portrait
Gallery of Australia Act 2012 specifies ‘the amount prescribed by the
regulations’, section 5 of National Portrait
Gallery of Australia Regulation 2013 specifies $1 million.
[58]. Items
2 and 9 amend the ANMM Act; item 14 amends the NFSA
Act; items 19 and 24 amend the NGA Act; items 27
and 34 amend the NLA Act; items 38, 39 and 46 amend the NMA
Act; and item 52 amends the NPGA Act.
[59]. Fletcher,
‘Second
reading speech’, op. cit., p. 10436.
[60]. S
Arnott, ‘Answer
to Question on notice: National Collecting Institutions, [Questioner: N
Green], Senate Environment and Communications Legislation Committee, Official
committee Hansard, 28 January 2021, p. 11.
[61]. Fletcher,
‘Second
reading speech’, op. cit., p. 10436.
[62]. Ibid.,
p. 10435.
[63]. Explanatory
Memorandum, pp. 14, 18, 23, 27, 32, 35.
[64]. Ibid.,
pp. 14, 18, 23, 27, 32, 36.
[65]. ANMM
Act, proposed subsection 47(4) (item 9); NFSA Act, proposed
subsection 39(3) (item 14); NGA Act, proposed subsection
38(3) (item 24); NLA Act, proposed subsection 24(3) (item
34); NMA Act, proposed subsection 37(3) (item 46); NPGA
Act, proposed subsection 47(3) (item 52).
[66]. Item
10 amends the ANMM Act and item 34 amends the NLA Act.
For existing provisions see: NFSA Act, section 41; NGA Act,
section 40; NMA Act, section 38; NPGA Act, section 49.
[67]. Explanatory
Memorandum, p. 26.
[68]. Ibid.,
p. 31.
[69]. Fletcher,
‘Second
reading speech’, op. cit., p. 10435.
[70]. Explanatory
Memorandum, p. 12. See also pp. 18 and 35. Items 6 and 10 amend
the ANMM Act; item 13 amends the NFSA Act; and item 51 amends
the NPGA Act.
[71]. Senate
Environment and Communications Legislation Committee, Official
committee Hansard, op. cit., pp. 5, 12.
[72]. Explanatory
Memorandum, p. 20.
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