This Bills Digest replaces an interim Bills Digest published on 30 May 2023, to provide additional background, context and detail.

Key points

• The Creative Australia Bill 2023 (the Bill) establishes Creative Australia, replacing the Australia Council as the Australian Government’s arts funding and advisory body.
• The Board of Creative Australia will continue to be known as the Australia Council Board.
• The Bill also establishes two councils within Creative Australia—the Music Australia Council and the Creative Workplaces Council. The Government has forecast that two additional bodies will be established by further legislation: a First Nations led body in 2024, and Writers Australia in 2025.
• The Creative Australia (Consequential and Transitional Provisions) Bill 2023 repeals the Australia Council Act 2013 and provides for transitional arrangements between the Australia Council and Creative Australia.
• These Bills support the implementation of the Government’s National Cultural Policy, Revive: a place for every story, a story for every place, released on 30 January 2023.

Introductory Info

Date introduced: 25 May 2023
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional Development, Communications and the Arts
Commencement: The earlier of Proclamation or 6 months after Royal Assent.

Purpose of the Bills

The purpose of the Creative Australia Bill 2023 (the Bill) is to:

• establish a body to be known as Creative Australia, by providing for the body previously known as the Australia Council to continue operations under the new name Creative Australia
• provide for the Australia Council Board to be the governing board for Creative Australia, and expand its membership from 12 to 14 persons
• establish the Music Australia Council and Creative Workforces Council within Creative Australia.

The purpose of the Creative Australia (Consequential and Transitional Provisions) Bill 2023 (the Consequential Amendment Bill) is to repeal the Australia Council Act 2013 and provide transitional arrangements as the Australia Council becomes Creative Australia.

Structure of the Bills

The Bill contains nine Parts, each of which provide for key elements of Creative Australia as a corporate Commonwealth entity, including its functions, responsibilities, and governance arrangements.[1]

The Consequential Amendment Bill contains two Schedules. The first repeals the Australia Council Act 2013. The second provides for transition arrangements, which pertain to matters connected with the operations of Creative Australia.

Background

The Australia Council was established by the Whitlam Government as a Commonwealth statutory authority in 1975, by the Australia Council Act 1975. Its functions were updated in the Australia Council Act 2013. The 2013 legislation implemented recommendations of the 2012 Review of the Australia Council, which had been conducted as part of the development of the Gillard Government’s national cultural policy, titled Creative Australia, launched in March 2013.

The subsequent Coalition Government chose to discontinue some measures provided for through Creative Australia in its 2014–15 Budget (p. 55), which saw significant cuts to the Australia Council. Funding was instead provided for the continuation of Creative Partnerships Australia, which sought to increase private sector support for the arts (p. 58).

During the course of the Coalition Governments, there was significant controversy around how the Australia Council was funded, as well as concern over administrative and peer-review changes (pp. 34–35) and the potential for Ministerial interference.

On 30 January 2023, the Australian Government launched Revive: a place for every story, a story for every place, which fulfilled a 2022 election commitment to put in place a new national cultural policy.

This was the end point of a process of public consultation which formally commenced in August 2022. Over 1,200 submissions were received, and 14 public meetings were held during July and August 2022.

The stated intention of Revive is ‘to change the trajectory of the creative sector, to deliver new momentum, so that Australia’s artists and arts workers, organisations and audiences thrive and grow, and our arts, culture and heritage are re-positioned as central to Australia’s future’ (p. 16).

The announcement of Revive included a commitment of $286.0 million in funding over 4 years, of which $200 million would be allocated to ‘expand on and modernise the Australia Council’s work’. The 2023–24 Budget committed $286.0 million over 5 years (not 4) from 2022–23 (and $81.2 million per year ongoing) to the arts, entertainment and cultural sector against the objectives outlined in Revive. Of that funding, $199.0 million (over 4 years from 2023–24, and $72.3 million per year ongoing) is to be provided to Creative Australia to implement Revive and establish the 4 additional bodies which will ‘provide greater strategic oversight and engagement across the sector including a First Nations-led body, Music Australia, Writers Australia and Creative Workplaces.’[2] The Bill establishes the second and fourth of these.

Pursuant to Clauses 16 and 17 of the Bill, both Music Australia and Creative Workplaces (respectively) are proposed to be established as a part of Creative Australia. The Minister announced in his second reading speech that further legislation will be introduced to establish a First Nations-led Board and Writers Australia, in 2024 and 2025 respectively.

On 23 March 2023, the Parliament passed the Australia Council Amendment (Creative Australia) Act 2023 which amended the Australia Council Act 2013 to give effect to elements of Revive. This included absorbing the functions of Creative Partnerships Australia, the role of which has been to encourage and facilitate partnerships, mentoring and investment in artistic and cultural production by commercial businesses and philanthropists, into the Australia Council.

Committee consideration

At the time of writing, the Bills had not been referred to, or reported on, by any committees.

Policy position of non-government parties and independents

Shadow Minister for the Arts, Paul Fletcher spoke to the Bills on 30 May 2023, opposing what he described as the Government’s keenness on ‘imposing priorities, principles and values upon artistic and cultural activity’ and warning:

If programming and curatorial choices are driven by political priorities, you end up with pretty dreadful art. Stalinist Russia with its turgid dramas and operas celebrating heroic workers exceeding their tractor production quotas is but one of many examples. A much better approach might be to leave it to the artists and performers, rather than putting our faith in having many more arts bureaucrats. But these bills, give effect to a rather different set of priorities.

The Coalition will not, however, oppose the Bills. Nationals MP David Gillespie cautioned against ‘more bureaucracy’ and expressed his hope that ‘the new entities, Music Australia and the creative workplace entity, which will operate under the new entity, won't destroy the flexibility, nimbleness and freedom of the creative gig economy and turn it into a unionised workplace.’

Independent Allegra Spender outlined the challenges facing the arts sector following the ‘neglect in funding of the arts’ over the past decade, as well as the impact of the COVID-19 pandemic, stating that:

…[t]he support provided in the government's cultural policy and partially implemented in the Creative Australia Bill 2023 is therefore imperative to the sector's survival and ultimately to its thriving. It's long overdue, and it's critical that it's passed and then built on.

Position of major interest groups

Dean Ormston, CEO of the Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society (APRA AMCOS), has been reported as welcoming the Government’s commitment to Music Australia:

The creation of Music Australia with recurrent annual funding will, for the first time in the nation’s history, provide an opportunity for a whole-of-government, cross-portfolio, strategic and long-term relationship with the breadth of the Australian contemporary music industry.

The Media, Entertainment and Arts Alliance (MEAA) welcomed the introduction of the Bill, with MEAA CEO Erin Madeley indicating that the MEAA ‘looks forward to working closely with the government during the roll out of both organisations to ensure the urgent needs and interests of creative workers are met’.

Financial implications

The Explanatory Memorandum to the Bill states that Creative Australia will receive an additional $199 million over the forward estimates from 2023–24. This funding is also allocated to the creation of Music Australia and Creative Workplaces (p. 3).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the compatibility of the Bill and the Consequential Amendment Bill, 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 Bills are compatible.[3]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Bills had not been considered by the Parliamentary Joint Committee on Human Rights.

Key issues and provisions

The Bill provides for the continuation of the Australia Council as a body corporate but with the new name Creative Australia. The new body will be constituted as a corporate Commonwealth entity (as per Clause 10) and have the power to sue and be sued independent of the Commonwealth, as did the Australia Council. While most of the provisions of the Australia Council Act 2013 are replicated in the Bill (including, for example, the power of the Minister to issue directions), there are some key differences between the two organisations. These are summarised in Table 1.

Table 1:     Key differences between the Australia Council and Creative Australia

	Australia Council	Creative Australia
Functions	The functions of the Council were provided in section 9 of the Australia Council Act 2013.	The functions of Creative Australia will be virtually unchanged. But note that Clause 11 includes the additional functions added by the Australia Council Amendment (Creative Australia) Act 2023 (referred to in the Background), which allow Creative Australia to perform the philanthropic and commercial work previously undertaken by Creative Partnerships, and which are inclusive of the work to be undertaken by the 4 new Councils, in promoting ‘fair, safe and respectful workplaces’, and providing training and mentoring ‘on matters connected with the arts or the performance of Creative Australia’s functions’.[4]
Membership of the Board	The Board consists of the Chair, the Deputy Chair, the CEO and between 5 and 9 other members.[5] Terms are a maximum of 3 years each, for a maximum of 9 years total.[6]	The Board consists of the Chair, the Deputy Chair, the CEO and between 5 and 11 other members.[7] Terms are a maximum of 4 years each, for a maximum of 9 years total.[8]
Appointment of the Chief Executive Officer	The CEO is to be appointed by the Board after consultation with the Minister.[9]	The CEO is to be appointed by the Board with the written agreement of the Minister and holds office on a full-time basis, with each period of appointment being no longer than 5 years. The CEO may be reappointed.[10]
Financial transactions	The Australia Council is subject to restrictions on financial transactions as prescribed by the rules.[11] The current limit is $1 million, as established by the Australia Council Rule 2013. The Minister’s approval must be sought for transactions over the limit.	Creative Australia is subject to restrictions on financial transactions over $5 million or a different amount prescribed in the rules.[12] The Minister’s approval must be sought for transactions over the limit. This does not apply when Creative Australia is exercising its powers to provide financial assistance (whether by way of loan, grant, investment, award or otherwise) or to provide guarantees.[13]
Delegation by the Minister	There is no power to delegate under the current Act.	The Minister may, in writing, delegate the Minister’s powers under Clause 80 (to approve financial transactions above the $5 million limit) and clause 86 (to make rules) to the Secretary of the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, or an SES employee (or acting SES employee) in the Department.[14]

Source: Australia Council Act 2013 and Creative Australia Bill 2023.

Parts of Creative Australia

This Bill establishes Music Australia and Creative Workplaces.[15] As noted in the Background, the Government has forecast that further legislation will be introduced to establish a First Nations-led Board and Writers Australia, in 2024 and 2025 respectively.

Music Australia

The Explanatory Memorandum states that Music Australia ‘will be responsible for supporting, promoting, and developing markets for Australian contemporary music practice’ (p. 2). The new body will confront the challenges to live music and music production which were laid bare during the Covid-19 pandemic, as noted in Part 4 of the House of Representatives Standing Committee on Communications and the Arts’ 2021 report Sculpting a National Cultural Plan. The conclusions of a 2019 parliamentary inquiry into the ‘growth and sustainability of the Australian music industry’ would also appear to warrant the establishment of Music Australia. The report of that inquiry concluded that investment in the support and promotion of Australian artists is ‘essential to the retention of talent and, ultimately, the sustainability and growth of the Australian music industry’ (p. iii).

Music Australia is established by subclause 16(1) with subclause 16(2) providing that it is responsible for:

• supporting and promoting Australian contemporary music and practice;
• supporting and promoting the development of markets and audiences; and
• any other matter as directed by the Board.

An employee of Creative Australia will be designated Director of Music Australia by the CEO, after consultation with the Minister.[16]

The Music Australia Council is established by Clause 37 and will be comprised of a Chair (which must be the CEO of Creative Australia) and 8 other members.[17] These members are appointed by the Minister in consultation with the Chair of the Council and may hold office for an individual term of no longer than 4 years and not for a period totalling longer than 9 years.[18]

The functions of the Council include advising the Board about the responsibilities of Music Australia; performing functions and exercising powers as directed by the Board; and doing anything incidental or conducive to the performance of these functions.[19]

Creative Workplaces

The Explanatory Memorandum states that Creative Workplaces will be responsible for ‘promoting and providing information about fair, safe and respectful workplaces for Australian artists, persons working in organisations that engage in, or support, Australian arts practice and persons otherwise involved in Australian arts practice’ (p. 2). It also states the Creative Workplaces responds to matters raised by the Raising Their Voices report, about the impacts of sexual harm, sexual harassment and systemic discrimination in the Australian contemporary music industry.

Creative Workplaces is being established to provide protection against exploitation, violence and abuse, and will promote fair, safe and respectful workplaces for all Australian artists and persons working in organisations that engage in or support, Australian arts practice regardless of any personal characteristic or circumstance, including, but not limited to gender, race or ability. Individuals and organisations receiving government funding will be required to adopt and adhere to these standards as a condition of funding. (EM, p. 7)

Creative Workplaces is established as a part of Creative Australia by subclause 17(1) of the Bill. In accordance with subclause 17(2) of the Bill, its responsibilities are:

• Promoting (and providing information and advice about) fair, safe and respectful workplaces for: Australian artists; persons who are employed or engaged by organisations engaged in or supporting Australian arts practice; and persons otherwise involved in Australian arts practice;[20]
• any other matter as directed by the Board.

An employee of Creative Australia will be designated Director of Creative Workplaces by the CEO, after consultation with the Minister.[21]

The Creative Workplaces Council is established by Clause 49 and will be comprised of the Chair and 6 other members.[22] Unlike the Music Australia Council which establishes the CEO as Chair, under the proposed Bill, the CEO would be prevented from being appointed as a Council member.[23]

Members of the Creative Workplaces Council may hold office for an individual term of no longer than 4 years and not for a period totalling longer than 9 years.[24]