Bills Digest no. 77 2007–08
National Film and Sound Archive Bill 2008
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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National Film and Sound Archive Bill
House: House of Representatives
Portfolio: Environment, Heritage and the
Sections 3 to 43 at the
same time as subsection 5(1) of the Screen
Australia Act 2008 commences; for all other sections, on
the date of Royal Assent.
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
The purpose of the Bill is to
establish the National Film and Sound Archive (NFSA) and separating
its functions from the Australian Film Commission (AFC).
In 1935, the Government decided to establish the National Film
and Speaking Record Library as part of the then Commonwealth
The Hawke Government announced, in April 1984, its decision to
establish the National Film and Sound Archive as a separate
institution based upon the National Film Archive and the Sound
Recording Collection in the National Library. The new institution,
together with a Council to guide its operation, was created that
same year. The transfer of National Library assets was concluded in
In 1997 David Gonski s report entitled, Review of
Commonwealth Assistance to the Film Industry, found
significant functional duplication between the Commonwealth-funded
Film agencies, but considered that the National Film and Sound
Archive s activities were consistent with its function.
The organisation changed its name to ScreenSound Australia in
1999. It functioned as an operational group within, and derived its
funding from, the Department of Communications, Information
Technology and the Arts (DoCITA). In 2000 its name was
adjusted to ScreenSound Australia, the National Screen and Sound
Archive (to be referred to ScreenSound Australia for the remainder
of this digest).
In 2003 the Commonwealth Review of Cultural Agencies
among other things, the integration of the ScreenSound Australia
and the Australian Film Commission (AFC). In a joint media release of 13 May
2003, Senator the Hon Richard Alston, Minister for Communications,
Information Technology and the Arts and Senator the Hon Rod Kemp,
Minister for the Arts and Sport stated:
The synergies created by combining the resources
of the AFC and ScreenSound Australia will improve their current
educational and exhibition activities. It will also provide
national leadership in enhancing access to, and understanding of,
Legislation will be introduced to facilitate the
integration and, for the first time, give clear recognition in
Commonwealth statute to the important work of collecting and
preserving the nation's sound and visual heritage.
In response, the Shadow Treasurer and Shadow Minister for the
Arts, Mr Bob McMullan, MP said:
More information is needed about the effects of
this amalgamation on the functions of both bodies.
It is difficult to see how the amalgamation of two
different bodies with fundamentally different roles will improve
services to the film industry and the public. The AFC
produces films and ScreenSound preserves and provides access to
them. We will be watching closely to ensure that none of
these functions is neglected.
To facilitate the amalgamation, the Australian Film Commission
Amendment Bill 2003 was introduced to the House of Representatives
on 29 May 2003. The relevant
bills digest provides some useful information about the
integration of the two organisations.
The Australian Film Commission Amendment Act 2003 came
into force on 1 July 2003. Although the amalgamation occurred, many
expressions of public concern followed, especially with respect to
possible job losses, functional break ups and program relocations.
These concerns were not alleviated by the release by the AFC on 12
December 2003 of a Review of Programs Stage 2 Directions
On 17 December 2003 the AFC issued a media release entitled
ScreenSound jobs to stay in which it was stated that:
Following a meeting with ACT Senator Gary
Humphries last night to discuss proposals for change at ScreenSound
Australia, Chief Executive of the Australian Film Commission (AFC)
Kim Dalton has agreed there will be no job losses from
Mr Dalton says that as a result of concerns
expressed by Senator Humphries and by staff, unions and
stakeholders, the AFC has made a commitment that no jobs will be
lost, including senior management, and no existing functions will
be moved out of Canberra as a result of the review of ScreenSound
programs. In addition no senior management positions will be moved
out of Canberra.
"This commitment to ScreenSound staff and
management is made unconditionally. I hope this will now provide
the opportunity for an open and constructive discussion to take
place around the Directions Paper," Mr Dalton said.
The AFC welcomes discussion on the various
proposals in the paper which include an expanded Canberra-based
school visitor program, touring exhibitions to regional Australia,
and the establishment of the Centre for Scholarship and Archival
Research in Canberra.
Mr Dalton said the deadline for responses to the
Directions Paper has been extended from 23 January to 16 February
2004 to further accommodate concerns and a series of forums will be
held around the country, including in Canberra, before that date to
assist the process of consultation.
More than 100 submissions on the Directions Paper were received,
many advocating changing the archive s name back to its original
one to better reflect its national significance, and giving the
institution its own statutory base, (the institution s continued
existence not being guaranteed either as a branch of the Department
of Arts or under the proposed amendments to the Australian Film
Commission Act). Although the new structural arrangement remained
unchanged, in 2004 the name was changed back to the National Film
and Sound Archive .
The former Government s election 2004 election policy paper
Strengthening Australia s Arts still supported the
The integration has already generated benefits,
such as the transfer of the National Film and Video Lending Service
from the National Library to ScreenSound, and the tour of The
Sentimental Bloke. Through integration, ScreenSound has
received a statutory mandate for its audiovisual archiving
functions, offering greater protection to its collection. The
Coalition Government also provided $20 million to refurbish
ScreenSound with state-of-the-art facilities and
However, as early as 12 February 2004 the then, Opposition
Leader, Mark Latham, promised that an Australian Labor Party (ALP)
Government would establish the National Film and Sound Archive as a
Statutory Authority under the Commonwealth Authorities and
Companies (CAC) Act 1997 with consequent
transfer of resources and functions from the Australian Film
This Bill is part of a raft of legislation which includes:
- Screen Australia Bill 2008 and
- Screen Australia and the National Film and Sound Archive
(Consequential and Transitional Provisions) Bill 2008.
Together the Bills will also allow the AFC to
merge with the existing Film Finance Corporation Australia Limited
and Film Australia Limited into a new agency, to be known as Screen
According to the Explanatory Memorandum, the Bill is not
expected to have a significant impact on Commonwealth
However, as the Bill does provide for the establishment of a new
organisation and that organisation will be tasked with developing,
preserving, maintaining, promoting and providing access to a
national collection of programs and related material the effect of
the Bill may not be cost neutral.
Part 1 of the Bill relates to preliminary
matters. In particular item 3 contains relevant
- program , being
- a screen production
- an aggregate of sounds embodied in any material or
- an aggregate of images or sounds, or of images and sounds that
is or is intended to be distributed without first having been
embodied in any material and
- screen production which means an aggregate of
images or of images and sounds, embodied in any material that can
be viewed on a screen, including for example, a film.
Item 4 provides that, when it is enacted, the
Bill will apply both within and outside Australia. This will allow
the National Film and Sound Archive (NFSA) to engage in activities
overseas, such as providing access to parts of the national
collection at an overseas film festival.
Part 2 provides for the establishment of the
Clause 5 proposes to establish the NFSA as a
body corporate in accordance with the Commonwealth Authorities
and Companies Act 1997. This means it will have a seal, may
deal in property and may sue and be sued. From a financial
standpoint, this clause should be read in conjunction with
clause 7 which sets out the powers of the NFSA.
These include but are not limited to, accepting gifts and bequests
and acting as a trustee of money, programs and other property. In
this respect the NFSA will have the necessary legal framework to
receive philanthropic donations which may be used to augment its
The functions of the NFSA are set out in subclause
6(1) as follows:
- develop, preserve, maintain, promote and provide access to a
national collection of programs and related material
- support and promote the collection by others of programs and
related material in Australia
- support and promote
- preservation and maintenance of programs that are not in the
- provision of access to programs that are not in the national
- understanding and awareness of programs in Australia
Subclause 6(2) sets out the way in which the
support for functions which are contained in subclause 6(1) may be
provided. It allows for:
- providing financial assistance by loan, grant or investment, on
commercial terms or otherwise, but not by guarantee
- commissioning or sponsoring programs
- providing services, facilities, programs or equipment.
This clause is not prescriptive so that the NFSA is not limited
to doing only those things which are listed in carrying out its
6(3) requires that, in performing its functions, the NFSA
must as far practical:
- place an emphasis on the historical and cultural significance
of programs: paragraph 6(3)(a),
- use every endeavour to make the most advantageous use of the
national collection in the national interest: paragraph
- apply the highest curatorial standards in carrying out its
functions: paragraph 6(3)(c). [according to the
Explanatory Memorandum this will ensure that high standards will
apply not only to the NFSA but also to others who are collecting
and dealing in programs].
- promote the efficient, effective and ethical use of public
resources: paragraph 6(3)(d).
Subclause 6(4) provides that the NFSA may
charge fees for things done in performing its functions. An example
is admission to public exhibitions of programs.
In addition to providing some useful financial framework,
clause 7 also allows the NFSA to receive gifts on
trust or otherwise which will supplement the national collection.
In those cases where programs or other material are given on trust,
paragraph 7(2)(b) provides that the NFSA is to act
as trustee of that property.
Part 3 relates to the Board of the NFSA.
Clause 8 establishes the Board. Its role of the
Board is to ensure the proper and efficient performance of the NFSA
s functions: clause 9.
Clause 10 provides that the membership of the
Board will be no less than five and no more than nine persons
including the Chair and Deputy Chair of the Board.
Subclause 11(1) provides that members are to be
appointed by the Minister by written instrument. The instrument of appointment is
not a legislative instrument under existing item 9 of Part 1 of
Schedule 1 of the Legislative Instruments Regulations 2004
and so will not be put before the Parliament. Appointments are for three years
(subsclause 11(3)), and a person must not be
appointed for an accumulated period exceeding nine years
The Bill does not contain any eligibility requirements for
membership of the Board, for example, that the Minister should have
regard to whether potential members of the Board have relevant
Clause 16 sets out a standard set of
circumstances in which the Minister may or must terminate the
appointment of a member. Just as the instrument of appointment is not a
legislative instrument, so the instrument of terminating an
appointment is not a legislative instrument and would not be put
before the Parliament.
Clause 18 sets out the rules about meetings.
Subclause 18(2) provides that the quorum of a
meeting is a majority of the current members.
As already stated, the NFSA is to be established as a body
corporate under the Commonwealth Authorities and Companies Act
1997. Under section 27J of that Act a director of a
Commonwealth authority who has a material personal interest in a
matter that is being considered at a director s meeting must not be
present while the matter is being considered and must not vote on
the matter. That provision applies to members of the NFSA Board.
Where a member or members must leave a Board meeting in those
circumstances, the remaining members constitute a quorum for the
purposes of any deliberation or decision at that meeting with
respect to that matter: subclause 18(3).
Clause 19 provides that decisions can be made
without meetings. In order for this to occur the Board must first
determine what type of decisions can be made without a meeting and
the manner in which those decisions are to be made:
subclause 19(2). The Board must keep a record of
decisions that are made in this way: subclause
Part 4 relates to the Chief Executive Officer
(CEO) and staff of the NFSA and the use of consultants.
Clause 20 provides that there is to be a CEO of
the NFSA. The role of the CEO is to be responsible for the day to
day administration of the NFSA: subclause 21(1).
The CEO is required to act in accordance with any policies
determined and any directions given by the Board: subclause
According to clause 22 the CEO is appointed by
the Board after consultation with the Minister for a period not
exceeding five years. Clause 29 sets out the
circumstances in which the Board may terminate the appointment of
the CEO and those in which it must terminate the appointment.
Part 5 relates to planning. In particular,
clause 33 requires the Board to prepare a
corporate plan for the NFSA at least once a year, covering a period
of three years.
Under subclause 33(3) the Minister may give the
Board written instructions with which the Board must comply in
preparing the plan and any variations to the plan. Although the
Explanatory Memorandum indicates that the subclause contemplates
the Minister instructing the Board as to the time when a plan must
be submitted for approval the scope of the instructions which the Minister could
potentially give is broad and could extend to the contents of the
corporate plan itself. This is supported by the provisions of
clause 35 which requires the Board to comply with
any request by the Minister to revise the plan and then have the
revised plan approved by the Minster before the start of the period
to which the corporate plan relates.
Subclauses 33(4) and 35(5) provide that
instructions by the Minister about the contents of the corporate
plan or a revision of the corporate plan respectively are not
legislative instruments under the Legislative Instruments Act
2003 and so would not be put before the Parliament.
Clause 34 requires that the corporate plan must
include the following:
- a statement of the objectives that the NFSA will pursue
- the strategies and policies that the NFSA will adopt to achieve
- performance indicators for the assessment of the performance by
the NFSA of its functions
- financial targets and projections
- an analysis of factors likely to affect achievement of targets
or create significant financial risk either for the NFSA or the
- a review of performance compared to the previous year and
- any other matter which the Minister has directed.
Part 6 relates to financial matters.
The NFSA is funded by an appropriation by the Parliament:
subclause 37(1). Clause 38 limits
the application of that money to payment of costs incurred in the
performance of the NFSA s functions and the exercise of its powers;
and payment of relevant remuneration and allowances.
Clause 39 provides that the NFSA must not,
without the consent of the Minister, do the following:
- acquire rights or property in excess of an amount that is
specified in regulations
- dispose of rights or property in excess of an amount that is
specified in regulations
- enter into a contract for the construction of a building for
the NFSA which is for an amount exceeding an amount prescribed by
Subclause 39(3) provides that,
where the Minister s approval is given for expenditure of monies
exceeding the amounts prescribed by the regulations, that approval
is not a legislative instrument. This means that the details of the
approval will not be put before the Parliament.
Part 7 relates to other matters. In particular,
clause 41 requires that the NFSA must declare, in
its Annual Report particulars of the disposal of any items from the
national collection which were considered to be significant to the
national collection. Of note is that clause 41 does not require the
annual report to detail the clause 33 and 25 Ministerial
instructions which have been given in the relevant financial year.
As that the Bill has specifically excluded these instructions from
the terms of the Legislative Instruments Act 2003 this is
would add transparency to the interaction between the Minister and
Given that the contents of the NFSA will be precious and rare,
the disposal of any part of the national collection, significant or
otherwise would seem to be anomalous. However, paragraph
5(2)(c) does allow the NFSA to acquire, hold and dispose
of real and personal property. It is conceivable that
clause 41 would come into effect where an item has
12 March 2008
Bills Digest Service
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