APPENDIX 3
Senate Scrutiny of Bills Committee
Alert Digest No. 5 of 2013
Australia Council Bill 2013
Introduced into the House of Representatives on 20 March
2013
Portfolio: Regional Australia, Local Government, Arts and
Sport
Background
This bill will replace the Australia Council Act 1975,
as recommended in the report of the Review of the Australia Council,
which was publicly released on 15 May 2012.
The bill will:
-
provide the Council the flexibility to establish committees,
including for the purposes of awarding grants based on peer assessment; and
-
introduce a skills-based governing board consisting of a Chair,
Deputy Chair, and between five and nine other members with arts or corporate
knowledge or expertise, and the CEO as an ex-officio Board member.
The committee has
no comment on this bill.
Australia Council (Consequential and Transitional Provisions) Bill
2013
Introduced into the House of Representatives on 20 March
2013
Portfolio: Regional Australia, Local Government, Arts and
Sport
Background
This bill contains consequential amendments and transitional
provisions related to the replacement of the Australia Council Act 1975
by the Australia Council Bill 2013, as recommended in the report of the Review
of the Australia Council, which was publicly released on 15 May 2012.
Schedule 1 of the bill provides for the repeal of the Australia
Council Act 1975.
Schedule 2 of the bill contains transitional provisions
which allow for the continued operation of the Council during the transition
period.
Trespass on personal rights and liberties—reversal of onus of proof
Schedule 2, subitem 14(3)
Item 13 of Schedule 2 imposes obligations on the members of
the new Board to prepare, on behalf of the previous Board, an annual report in
accordance with Schedule 1 of the CAC Act for the transitional reporting
period. Item 14 is included to ensure compliance with these obligations.
Subitem 14(2) provides that a breach of these obligations will be a civil
penalty provision for the purpose of the CAC Act, though a pecuniary
penalty order can only be made in respect of a serious contravention (this is
the effect of paragraph 14(2)(a) - see the explanatory memorandum at page 11).
Subitem 14(3) provides that in circumstances in which a
contravention of the final annual reporting obligations (pursuant to item 13)
consists of an omission from the financial statements that ‘it is a defence if
the defendant proves that the information omitted was immaterial and did not
affect the giving of a true and fair view of the matters required by the
Finance Minister’s orders to be included in the statements’.
The statement of compatibility argues that any contravention
of reporting obligations required by item 13, as detailed in item 14, is a
civil penalty and not a criminal charge (see pages 3 and 4). Nevertheless,
contraventions may result in the imposition of a pecuniary penalty. The
explanatory memorandum does not address why the proposed approach, in which the
defendant will be required to prove the matters referred to in subitem 14(3) is
appropriate. The committee therefore seeks the Minister's advice as to the
rationale because it is not clear that they are matters are matters which would
be peculiarly within the defendant’s knowledge.
Pending the Minister's reply, the committee draws
Senators’ attention to the provisions, as they may be considered to trespass
unduly on personal rights and liberties, in breach of principle 1(a)(i) of the
committee’s terms of reference.
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