Bills Digest no. 84 2007–08
Screen Australia 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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Screen Australia Bill
House: House of Representatives
Portfolio: Environment, Heritage and the
Sections 1 and 2 commence
upon Royal Assent. Sections 3-45 commence on a date to be fixed by
proclamation, or six months after Royal Assent, whichever is the
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 Bill seeks to establish a new statutory authority, to be
called Screen Australia, merging the functions of the existing
Australian Film Commission, the Film Finance Corporation Australia
and Film Australia Limited.
Ever since David Gonski s 1997 report Review of Commonwealth
Assistance to the Film Industry found significant functional
duplication between the Commonwealth funded film agencies, some
form of structural simplification of the film support sector has
seemed a possible policy option and indeed, since 1997 the film
support options had broadened still further with the advent of
piloted Film Licence Investment Corporations (FLICS) and a
Refundable Film Tax Offset Scheme (RFTO).
In the last six years there has also been some debate over the
degree to which Commonwealth film production support mechanisms
should reflect cultural or purely economic imperatives.
The tension between the cultural and the economic could be seen
in the different eligibility criteria for the tax concessions under
section 10BA of the Income Tax Assessment Act 1936 (the
ITAA) or direct grants/loans from the Australian Film Financing
Corporation and those for accessing the RFTO. With respect to the
former, a film needs to be certified (first provisionally and then
finally) as an Australian film with the Minister, when assessing a
film's Australian content, being obliged by Section 124ZAD of the
ITAA to consider:
(a) the subject matter of the film or proposed film;
(b) the place or places where the film was, or the proposed film
will be made;
(c) the nationalities and places of residence of:
(i) the persons who took part, or who will take part, in the
making of the film or proposed film (including authors, composers,
actors, script writers, editors, producers, directors and
(ii) the persons who are, or who will be, the beneficial owners
of the of shares in any company concerned in the making of the film
or proposed film; and
(iii) the persons who are, or who will be, the beneficial owners
of the copyright in the film or proposed film;
(d) the source from which moneys that were used in the making of
the film were, or that are to be used in the making of the proposed
film will be, derived;
(e) the details of the production expenditure incurred in
respect of the film or the budgeted production expenditure to be
incurred in respect of the proposed film;
The Refundable Film Tax Offset
Scheme introduced in 2001, on the other hand tied benefits to
production expenditure in Australia. If a film's Australian
production expenditure was between A$15 million and A$50 million,
the producers had to spend a minimum of 70 per cent of the film's
total production expenditure on film production activity in
Australia to qualify for the offset. If a film's Australian
production expenditure was A$50 million or more, the producer
qualified for the offset regardless of the ratio of Australian
expenditure to the film's overall budget.
Responding to a perceived need to both simplify support
mechanisms and clarify cultural and economic imperatives and
rationale behind programs, major structural changes were announced
in the May 2007 Budget Statement and backed with a pledge of $282.9
million, to be provided over four years.
The package of measures included the amalgamation of the
Australian Film Commission (AFC), Film Finance Corporation
Australia (FFC) and Film Australia Limited into a new single
agency, the Australian Screen Authority (ASA). The research and
statistic functions of the AFC were going to find a home in the
Australian Film, Television and Radio School, also in Sydney, and
the latter would receive funds to support the transfer.
The newly established ASA was going to be given a budget far in
excess of the sum of the budgets of the three agencies it would
replace. The package of measures also introduced a new producer tax
rebate, administered by the ASA, for which both Australian and
overseas producers could be eligible.
- An Australian producer would be eligible for a 40 per cent
refundable rebate on feature films and 20 per cent refundable
rebate on other media productions so long as the production meets
Australian creative control criteria and minimum expenditure
- An overseas producer would be eligible for a 15 per cent rebate
(as opposed to 12.5 per cent under the RFTO that would be
discontinued) on eligible expenditure, where that expenditure
exceeds $5m and the definition of such expenditure is going to
broadened from that in the RFTO to include expenditure on post,
digital and visual effects production in Australia even if the film
is not made in Australia.
This new two stream mechanism would replace not only the above
mentioned RFTO, but also the current investor tax incentives
available through Division 10BA and Division 10B of the ITAA (no
new applications accepted after 30 June 2007), and the Film
Licensed Investment Company (FLIC which would not be renewed beyond
its current expiry date of 30 June 2007). Responsibility for
raising money and creating successful films would henceforth rest
mostly with the producer not the investment consortium as in the
FLICs model, and unlike under the 10BA ITAA scheme it was to be the
producer (or production house), rather than an individual film,
that private investors would be backing.
On 7 September 2007 Senator the Hon. George Brandis, the then
Minister for the Arts and Sport, issued a Media Release entitled
Consultation on Australian Government legislation to create a new
screen agency - Screen Australia announcing the release for
public comment of an Exposure Draft:
Screen Australia will herald in a new era in film
and television production in Australia, in which the Australian
Government will invest an additional $300 million over four years.
The draft legislation outlines the proposed functions and powers of
the new body, together with the proposed governance and
The functions largely reflect the combined
functions of the existing agencies but also emphasise the
Government s desire to see the agency promote an improved
commercial focus in the sector, and the development of areas of
particular public interest, such as documentaries and children s
Statutory acknowledgement of a National Film and
Sound Archive is also provided for in the draft legislation.
The release of the draft legislation sets a
framework for Screen Australia but there will be much discussion in
coming months on detailed policies, priorities, programs and
organisational arrangements within Screen Australia.
I am keen that the public and the industry have
the ability to consider these very important issues. A high level
committee has been examining implementation issues associated with
The committee, comprising the CEOs of the affected
agencies and the Department of Communications, Information
Technology and the Arts, will shortly be commencing detailed
consultations on these issues, now that the draft legislative
framework has been made available.
Comment on the draft legislative provisions was sought by 14
September 2007, but no report on the consultation process was
released before the Federal election was called in October
The Australian Labor Party committed to establishing Screen
Australia in its 2007 Election Policy New Directions for the
Arts and on 8 February 2008 the Minister for Environment,
Heritage, and the Arts, Hon. Peter Garrett, released a
Screen Australia Bill Exposure Draft that was nearly identical
to that released by the previous government and in a
Media release Call for public comment on Film Agency
The new Screen Australia, which will commence work
on 1 July, will have a strong cultural focus as well as supporting
development of a sustainable Australian screen industry by
strengthening screen businesses. It will bring together the main
functions of the Australian Film Commission, the Film Finance
Corporation Australia and Film Australia Limited. The new agency
will continue the work of these three agencies, such as supporting
productions of national significance and public interest and
providing practitioner and industry development, access programs
and promotional activities. Under consequential legislation, Screen
Australia will administer the new Producer Offset.
The new Bill under its Part 1 Clause 3 Definitions, offers a
definition of Australian program to mean a program, which in the
opinion of Screen Australia has or will have significant Australian
content (necessary to be eligible for the new Australian producers
rebate more generous than that for overseas producers) which is
almost identical to that legislated for the 10BA certification
process. Public debate has continued, however, on the specific
weight that is appropriate to different criteria, and whether to be
eligible for the Australian producers rebate there should be a
specified minimum expectation with respect to the Australian
nationality of key creative personnel.
The Explanatory Memorandum states
that a no significant financial impact is anticipated.
Clause 3 - Definitions
Clause 3 provides a list of the definition of
key terms used in the Bill. A few of the significant terms in this
- Australian Program: refers to a
program which in the opinion of Screen Australia (hereafter SA ),
has or will have, a significant Australian content. According the
Explanatory Memorandum, the determination of whether a program has significant
Australian content will be made by having reference to
considerations such as:
- The subject matter of the film;
- The place where the film is made;
- The nationalities and places of residence of the persons who
took part in the making of the film (including producers,
directors, authors, scriptwriters, composers, actors, editors,
directors of photography, production designers and other film
- The details of production expenditure incurred in respect of
the film; and
- Other matters that Screen Australia considers relevant.
The breadth of the expression will have a significant Australian
content is intended to capture programs which have not been
completed, including incomplete programs which do not as yet have
significant Australian content, but which SA anticipates will have
significant Australian content in the future.
- Program: has a broad meaning referring to a
screen production in the form of films for cinema release,
television productions and other platforms including the internet
and other digital media. The definition of program also captures a
soundtrack for a silent movie or the production of new sound for an
old film. It does not include sound recordings that have no
relation to the screen productions as mentioned above.
Significantly, the terms also includes direct support for live
productions simply because they are being filmed. The Explanatory
Memorandum indicates that the term distributed in paragraph (c) of
the definitions section is similarly broad and includes the
dissemination of films and other programs for public release.
- Screen production: is meant to
be generous in its capture and includes all programs that are
capable of being displayed on screen.
Clause 4 Extended geographic application of the
The Act applies both within and outside Australia. This will
permit SA to pursue relevant activities overseas.
Clause 6 Functions of Screen
The functions of SA and the way in which they will be carried
out are set out by paragraphs 6(1) (a), (b), (c) and
SA will support and promote the development of a highly
creative, innovative and commercially sustainable Australian
production industry; this may obviously involve assisting with the
development of filmmakers skills. Achieving its goals will
necessarily also require SA to support or engage in the
development, production, promotion and distribution of Australian
programs, and provision of access to those programs. SA s support
and promotion of the development of a screen culture in Australia
will be an integral part of this, as will SA s marketing of
Australian films outside Australia in venues such as film festivals
and trade shows.
Paragraphs 6(2)(a), (b), (c) and (d) provide a
non-exhaustive list of the ways in which SA may achieve these
supportive functions, such as.
- providing financial assistance (through a loan, grant,
investment or otherwise);
- providing financial guarantees ;
- commissioning a person to sponsor or support programs or other
- providing services, facilities, programs or equipment to
producers of Australian films and recordings.
Subclause 6(3) specifies that as far as is
practicable, certain strategic areas of consideration and focus
should guide SA in its activities. These are:
- Ensuring the development of a diverse range of Australian
programs that deal with matters of national interest or importance
to Australians, or that convey aspects of Australia or the
Australian way of life; and
- An emphasis on documentaries, programs of interest or relevance
to children, and programs with a high level of cultural or artistic
- The promotion of engagement with the private sector as the
primary means of support for projects with commercial potential --
especially in light of the recent introduction of Producer
Subclause 6(4) provides that in performing its
functions, SA may charge fees. SA may also perform its functions
alone or together with other persons (subclause
Clause 7 Powers of Screen
This clause makes it explicit and seeks to remove doubt that SA
will have the power to do all things necessary or convenient in
connection with performing its functions. Subclause
7(2) provides a non-exhaustive list of such powers.
Examples include the power to:
- Accept gifts; bequests etc.
- Act as a trustee of money, programs or other property vested in
SA on trust;
- Only with the written approval of the Minister for Environment,
Heritage and the Arts, to form or participate with others in
forming a company; or to acquire, hold or dispose of capital in
- To do anything else incidental to any of its functions.
Clause 9 the role of the board
Subclauses 9(1), (2), (3) and (4) collectively
define the role of the board through which the SA acts.
The Board is responsible for the proper and efficient
performance of SA s functions. As, such, the board is bestowed with
the power to do all things necessary or convenient for or in
connection with the performance of its duties.
Subclause 9(4) allows all things done in the
name of, or on behalf of, SA by the Board, or with the authority of
the Board, may be done on the basis of the opinion, belief or state
of mind of the person or body acting on behalf of SA.
Clauses 10 and 11 - Board membership and appointment of
The board is to be compromised of the Chair, Deputy Chair and
between three and seven other members (clause
A board member shall be appointed on a part-time basis
(subclause 11(2)) for a period of up to 3 years
(subclause 11(3)), with the total period of
appointment (made up of consecutive or non-consecutive periods) not
being greater than 9 years (subclause 11(4)).
Interestingly, the Bill is silent on the criteria used to select
and appoint board members. The companion Bill to this SA Bill 2008
- the National film and Sound Archives Bill 2008 - is also silent
on this issue. This seems to represent a departure from a more
prescriptive accountability trend in relation to the appointment of
board members under the previous government, which amended a number
of Acts in relation to statutory bodies following the findings and
recommendations of the Uhrig Review.
Clause 12 Acting in Positions
This clause simply states that in the Chair s absence, the
Deputy Chair will act as the Chair with all the powers of the
Clause 13 - Remuneration of members
This clause provides that remuneration of SA members is to be
determined by the Remuneration Tribunal, and where no such
determination is in operation, remuneration is to be prescribed by
Clause 14 Leave of Members
This clause provides that the Minister may grant a Chair leave
of absence on the terms and conditions that the Minister
determines. Also, that the Chair may grant leave of absence to any
other member on the terms and conditions that that Chair
determines. However, where the Chair grants leave of absence to a
member for a period of greater than 6 months, then they must notify
the Minister of that decision.
Clause 15 Resignation of Members
This clause provides that a member may resign from their
position by giving notice in writing to the minister, and that
resignation takes effect from the date that it is received or at a
later date if so specified in the letter of resignation.
Clause 16 Termination of Appointment
This clause lists the grounds under which the Minister may
terminate the appointment of a Board member. The grounds are:
- By reason of misbehaviour or physical or mental incapacity;
- If the member becomes bankrupt; or applies to take the benefit
of any law for the relief of bankrupt or insolvent debtors; or
compounds with his or her creditors; or makes an assignment of his
or her remuneration for the benefit of his or her creditors;
- If the member fails, without reasonable excuse, to comply with
an obligation imposed on him or her by section 27F or 27J of
the Commonwealth Authorities and Companies Act 1997;
- If the member is absent, except on leave of absence, from 3
consecutive meetings of the Board.
Clause 18 - Meetings
This clause sets out the operative requirements for meetings
dealing with matters including:
The requirement that meetings must be convened by the Chair
The quorum requirement set as the majority of current members
except where there is a conflict of interest that requires a member
not to be present during deliberations or to take part in a
decision in relation to a matter and this member s absence takes
the meeting below quorum, the remaining members constitute quorum
in relation to that matter (subclause 18(2)).
A question taken will be answered by a majority of members
(subclause 18(4)) and the person presiding at a
meeting will have the deliberative vote, and in the event of
equality of votes, will have the deciding vote (subclause
While the Board is not required to keep a record of all
meetings, it is required to keep a record of all decisions
Subject to the Bill and the Commonwealth Authorities and
Companies Act 1997 (CAC Act), SA may regulate proceedings as
it thinks fit (subclause 18(10)).
Clause 19 Decisions without meetings
This clause allows the Board to determine that decisions can be
made without a meeting and how agreement to this is to be
indicated. Of course, records must be kept of any such
Division 1 Chief Executive Officer
Clause 21 defines the role of the
CEO as being responsible for the daily administration of
the SA, with the power to do all things necessary or convenient to
in connection with the performance of those duties. The CEO must
act in conformity with policies and directions provided by the
Board in writing, except in relation to the CEO s powers under the
Public Service Act 1999.
All acts and things done by the CEO in the name of or on behalf
of SA by the CEO, or with the authority of the CEO, are taken to
have been done by SA (subclause 21(4)).
Clause 22 and the associated subclauses deal
with the appointment of the CEO. The CEO, who must
not be a Board member, is appointed by the Board following
consultation with the Minister, and that the office of CEO is a
full-time position held for a period not exceeding five years.
Clause 24 provides that a CEO must not engage
in other paid employment outside the duties of the CEO s position
without the Chair s approval, which if given, must also be notified
to the Minister.
Clause 25 deals with the CEO s
remuneration and provides that it shall be determined by
the Remuneration Tribunal, or where there is no such determination,
remuneration is as prescribed in the regulations.
Clause 26 deals with the CEO s
recreation leave entitlements, providing that they
are determined by the Remuneration Tribunal. And in addition to
this, the Chair may grant leave of absence to the CEO.
Clause 27 provides that the CEO must disclose
to the Minister and Chair all direct and indirect pecuniary
interests that the CEO has or acquires which conflict or could
conflict with the proper performance of the CEO s duties.
Clause 28 provides that the CEO may resign by
giving written notice to both the Chair of the Board and the
Minister. 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.
Division 2 Staff and Consultants
Clause 31 deals with the conditions of
engagement of the employment of staff of the SA. Staff of SA will
generally be employed under the Public Service Act 1999.
However, some persons occupying specialist industry jobs not
readily accommodate under the Public Service framework, may be
employed on the terms and conditions that Screen Australia
determines (subclause 31(2)).
Clauses 32 provides non-APS employees of SA
with the same maternity leave entitlements as those provided to
employees under the Public Service Framework. Clause
33 provides non-APS employees of SA with the same long
service leave entitlements as those provided to employees under the
Public Service Framework.
Clause 34 provides that SA may engage
consultants to assist in the performance of its functions.
Clause 35 requires the Board to prepare a corporate plan for the
NFSA at least once a year, covering a period of at least 3
Under subclause 35(3) the Minister may provide
the Board with written instructions with which the Board must
comply in preparing the plan and any variations to the plan. Though
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 ambit of the
instructions which the Minister could potentially give is broad
enough to extend to the contents of the corporate plan itself.
Subclause 36(1) lends support for this
supposition, requiring the Board to comply with such other matters
as the Minister directs. Furthermore, subclause
37(1) provides that the plan must be given to the Minister
for approval before the start of the period to which it relates,
and that the Minister may direct a revision of the plan, which must
be complied with (subclause 37(3)).
Subclauses 36(1) and 37(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 36 provides that the corporate plan must
include the following:
- a statement of the objectives that SA will pursue
- the strategies and policies that SA will adopt to achieve its
- performance indicators for the assessment of the performance by
SA of its functions
- financial targets and projections
- investment and financing programs of SA
- an analysis of factors likely to affect achievement of targets
or create significant financial risk either for SA or the
- a review of performance compared to the previous year, and
- any other matter which the Minister has directed.
SA is funded by an appropriation by the Parliament:
subclause 39(1). Clause 40
limits the application of that money to payment of costs incurred
in the performance of SA s functions and the exercise of its
powers; and payment of relevant remuneration and allowances.
Clause 41 provides that SA 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 SA
which is for an amount exceeding an amount prescribed by
Subclause 41(4) 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.
Clause 42 provides that SA is not subject to
taxation under any law of the Commonwealth or State or Territory,
unless the regulations provide that taxation under a specified law
Proposed clause 43 - Annual Reports
This proposed clause makes a requirement for the inclusion in
the Annual Report of guarantees given by screen Australia during
that financial year.
Clause 44 deals with Ministerial
directions. The Minister may, by way of legislative
instrument, give written directions to the Board in relation to the
performance of the functions of and exercise of the powers of the
SA (paragraph 44(1)(a)). And the Minister may
also, by way of legislative instrument, mandate the provision of a
report or advice on any matter relating to the functions and powers
of the SA (paragraph 44(1)(b)). However, the
Minister must not give a direction in relation to a decision by the
Board to provide support to a particular person or for a particular
program (subclause 44(2)).
Two noteworthy things about the operation of this clause are:
Legislative instruments made under this clause are not subject to
disallowance, and clause 44 does not operate to oust section 16 of
the CAC Act (which requires keeping the Minister informed of
Proposed clause 45 - Regulations
This proposed clause provides that
the Governor-General may make regulations in relation to
- Required or permitted by this Act to be prescribed; or
- Necessary or convenient to be prescribed for carrying out or
giving effect to the Act.
John Garden and Juli Tomaras
13 March 2008
Bills Digest Service
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