Parliamentary Review of
ANZAC Day Laws

Chapter 6 - Developing an Improved Legislative Framework

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Objectives for ANZAC Legislation

A major thrust of this review is to achieve an improved legislative framework for ANZAC Day. This objective attracts for consideration substantive issues relating to the operation of the ANZAC Day Proceeds Fund and restrictions on business activity. It also attracts consideration of more technical issues such as the clarity of legislation, particularly where improvements can be made in drafting legislation and by removal of anomalies. The Committee deliberated about improvements to the legislative framework against the following considerations:

  • enacting a single and clear piece of legislation that consolidates the many laws affecting Anzac Day;

  • commemorating ANZAC Day and educating the community about the ANZAC spirit;

  • funding ANZAC Day, particularly commemorative and education activities;

  • restrictions on business activity;

  • resolving which business, sporting and entertainment activities should be prohibited on ANZAC Day, and, for how long;

  • achieving clarity of legislation, particularly removal of anomalies.

ANZAC Day Commemoration Services

An important issue for consideration is the extent to which there should be legislative intervention into the conduct of ceremonies on ANZAC Day. The RSL (Victorian Branch) referred to two important aspects as overriding principles in relation to the celebration of ANZAC Day, namely:

(a) "That ANZAC Day services are to be commemorative and not to have significant religious overtones. The Victorian Branch is of the view that the manner in which the Dawn Service at the Shrine is at present conducted is appropriate particularly with the strong feature of remembrance. This view is supported by the majority of the unit associations who have been consulted in relation to this matter. Those unit associations also support the present manner in which ANZAC Day celebrations are conducted.

(b) That the commemorative aspect of ANZAC Day celebrations should not be regulated by Government, but rather should remain with the RSL, both at a State and local level. The RSL should be responsible for the carrying out of such commemorative activities assisted by other ex-service organizations. It is accepted that the nature of the conduct of the commemorative aspects of ANZAC Day will change with the passage of time and it is submitted that the RSL, together with the other ex-services’ community views on such matters and that those views should be paramount as to the manner in which the commemorations take place."[23]

In this context the RSL (National Headquarters) also submitted:

"Australia’s war service be remembered by appropriate ceremonies, usually a remembrance service at dawn, and a parade or march of veterans during the later morning, the parade ending with a commemorative service."

"To ensure preservation and continuation of traditional ceremonies, it is preferred that the organising body for all ANZAC Day ceremonies be at least authorised by government."

"Organising bodies should be non-commercial and non-political. The bodies should be composed of representatives of the ex-service community, local Government authorities, Defence Force and other interested community groups."[24]

The Committee found that there does not appear to be any substantial grounds to suggest that ceremonies on ANZAC Day are conducted in a way which warrants direct Government intervention. The Committee is satisfied that the principles espoused by the RSL (Victorian Branch) are appropriate. It appears clear enough that the extent of legislative intervention should not extend to the conduct of ceremonies on ANZAC Day. The Committee considers that the long-standing role of the ex-service community in the conduct of marches and other commemorative ceremonies throughout Victoria on ANZAC Day should remain in place without legislative control.

The Committee notes, however, the view of the RSL (National Headquarters) that the organising body be at least authorised by government. Whilst not recommending a particular statutory role in respect of the conduct of ANZAC Day ceremonies, the Committee does recommend the establishment in the proposed ANZAC Day Commemoration Act of the ANZAC Day Education and Commemoration Committee within the Patriotic Funds Council.[25]

Recommendation 4

The Committee recommends that, in view of the long-standing role of the ex-service community in the conduct of ANZAC Day ceremonies throughout Victoria, these matters should remain the province of the ex-service community, without legislative intervention.

Encryption of "ANZAC"

An issue for consideration is whether to provide for a single and clear piece of legislation that consolidates the many laws affecting Anzac Day. A preliminary consideration relates to the way in which the encryption of ANZAC is represented in legislation. Commonly, the form of encryption is "Anzac, rather than "ANZAC." The origin of the word "ANZAC" is a combination of the identifying letters of the Australian and New Zealand Forces that served at Gallipoli.[26] The Committee understands that there is no principle of legislative drafting that would prevent encryption of the word "ANZAC" and recommends that this occur.

Recommendation 5

The Committee recommends that references to "ANZAC" in legislation should be made in upper case encryption to reflect the origin of the word as a combination of the Australian and New Zealand forces that served at Gallipoli.

Commemoration of all Service

An anomaly in the existing legislation that was apparent to the Committee related to the reference in the Anzac Day Act 1958 to commemoration related to World War I. The Committee found no basis for continuing this limited reference in future legislation. The Committee concluded that there is justification for updating the reference to recognise all conflicts in which Australian people have been engaged. Further, as there is considerable support for the commemoration to be extended to include peacekeeping activities, as presently recognised in the Patriotic Funds Act 1958, the Committee considers that this would be an improvement to the legislation.

This improvement could take the form suggested by the RSL (Victorian Branch) which expressed the view:

"It is submitted that the ANZAC Day legislation should not be confined to commemoration in relation to World War I. It is submitted that Section 3 of the ANZAC Day Act ought to be amended to read as follows:

"In commemoration of the part taken by Australian Defence Force personnel in the Great War and subsequent conflicts and in memory of those who gave their lives for Australia, that the twenty-fifth day of April in each year (being the anniversary of the first landing on Gallipoli of troops from the United Kingdom, Australia and New Zealand) shall be known as ANZAC Day".

The use of the word "conflict" is consistent with the definitions and words expressed in the Patriotic Funds Act".[27]

Recommendation 6

The Committee recommends that:

(a) the observance of ANZAC Day commemorate the service of Australians in all conflicts; and

(b) the existing reference to commemorating participation in the Great War should be complemented in the new ANZAC Day legislation by a reference to participation in subsequent conflicts, including peace keeping activities.

April 25

In keeping with the general support for observing the significance of ANZAC Day, there is little contention about the continued observance of a public holiday on 25 April each year. The RSL (National Headquarters) submitted that:

"April 25 be officially designated as a public holiday, regardless of the day of the week on which it falls and the ANZAC Day commemoration be held only on that day."[28]

Some caution was expressed by the Shop Distributive and Allied Employees Association (SDA) and the Australian Retailers Association of Victoria (ARAV) with respect to employees entitlements where employees are required to work on ANZAC Day.[29] The Committee is conscious of the importance of this issue and notes the views of the SDA and the ARAV of the need not to disturb existing legislative or industrial protections for employees working on public holidays.

Recommendation 7

The Committee recommends that ANZAC Day should continue to be observed as a public holiday on 25 April each year, with the legislation making clear that ANZAC Day is a full day holiday.

ANZAC Day Responsibilities

In the course of the review, it became clear that if enhanced priority is to be given to commemorating ANZAC Day and the ANZAC spirit, specific functions should be identified and responsibility allocated for their performance.

In this respect, Melbourne Legacy submitted that:

"The ANZAC Day Commemoration Council should be recognised in legislation as the consultative body of major ex-service organisations and interest groups and that its composition and charter be enunciated in the ANZAC Day Act. The Council should be responsible to advise the Minister and to make determinations on matters including approval of sporting events and recreational activity, restrictions on business activity, commercial opening laws, and the like."[30]

There is considerable merit in Melbourne Legacy’s submission. The Committee considers that the paramount issue in this regard is to identify specific functions which need to be performed to enhance the State’s commitment to ANZAC Day and the ANZAC spirit. The thrust of these functions should be to assist, facilitate and promote commemoration and education activities. The capacity to perform these functions will depend on appropriate funding. It is consistent with the Committee’s broader proposals with respect to the ANZAC Day Proceeds Fund and contributions to the fund by the sport and gaming sectors for these functions to be complementary to those proposals[31].

Having regard to its responsibility for the ANZAC Day Proceeds Fund, it is appropriate that the Patriotic Funds Council assume expanded functions to assist, facilitate and promote commemoration and education activities. The Committee considers the new Act should give statutory recognition to a body to perform these functions for the Patriotic Funds Council.

The Committee therefore proposes that the new Act provide for the establishment of an "ANZAC Day Education and Commemoration Committee," within the Patriotic Funds Council, for the purpose of performing the Patriotic Funds Council’s expanded functions.

In addition, the Committee proposes that the Premier consult with the ANZAC Day Education and Commemoration Committee in respect of ANZAC Day matters, including the contributions to be made to the ANZAC Day Proceeds Fund by the sport, gaming and entertainment sectors.

The Committee considers that the ANZAC Day Education and Commemoration Committee should be constituted to reflect the importance of ANZAC Day to ex-service organisations and also to include recognition of the significance of ANZAC Day to all Victorians. Its membership would include representatives of ex-service organisations (in particular the RSL), and other representation (possibly including people from the business, sporting, entertainment and education sectors).

Performance of the expanded functions will require increased funding, which the Committee discusses later in this Report.[32] Accordingly, the new Act should enable the ANZAC Day Education and Commemoration Committee to recommend distribution of funds from the ANZAC Day Proceeds Fund to further commemoration and education about ANZAC Day and the ANZAC spirit.

Recommendation 8

The Committee recommends that, in light of the need to give enhanced priority to commemorating ANZAC Day and the ANZAC spirit, provision be included in the new ANZAC Day legislation to:

(a) expand the functions of the Patriotic Funds Council to assist, facilitate and promote commemoration and education activities;

(b) provide for the establishment of a committee, the ANZAC Education and Commemoration Committee, within the Patriotic Funds Council to perform the Council’s functions with respect to commemoration and education activities; and

(c) enable the distribution of funds from the ANZAC Day Proceeds Fund, as recommended by the ANZAC Education and Commemoration Committee, for the purposes of commemoration and education initiatives.

ANZAC Day Proceeds Fund

The Anzac Day Act 1958 establishes the Anzac Day Proceeds Fund. The Act provides for the income of the fund to be derived from the net profits of sporting and racing clubs conducting events on ANZAC Day.[33] The ANZAC Day Proceeds Fund is distributed amongst ex service organisations including, the RSL, Legacy and Carry-On (Victoria).

The Patriotic Funds Act 1958 establishes the Patriotic Funds Council of Victoria to, in effect, assume responsibility for overseeing the operation of all Victorian patriotic funds. The Patriotic Funds Council of Victoria is also invested with responsibility for recommending to Treasury the distribution of payments from the ANZAC Day Proceeds Fund.

Recipients of funds from the ANZAC Day Proceeds Fund are required to submit to the Patriotic Funds Council a detailed request setting out how the funds, if granted, will be used. The Patriotic Funds Council submission explains that:

"PFC recommend to Treasury where the Fund is to be disbursed.

Although a number of Patriotic Funds are asset rich, these assets are generally buildings which are not "liquid". The funding from the ANZAC Day Proceeds Fund is invariably requested and approved for the welfare assistance that the Trustees of these Patriotic Funds request assistance for.

The emphasis here has been on ensuring that the funds are distributed to the widest possible number of recipients and therefore organisations that apply are evaluated on this criterion. Unfortunately, as indicated earlier, a number of the ex services community are asset rich in terms of their funds but are operating with a deficit. It is these funds that the PFC particularly wishes to address if extra funding is obtained."[34]

The Patriotic Funds Council also noted that:

"In recent years the moneys that have been available for disbursement from the ANZAC Day Proceeds Fund has been diminishing. This has obviously left the PFC with less money to distribute to those ex-service organisations that are administering welfare to ex-service personnel and their dependants."[35]

The ANZAC Day Proceeds Fund is overwhelmingly sustained under a long standing policy for the Treasurer to donate all totalisator wagering taxation generated by Anzac Day operations to the fund[36]. For example, the contribution under the Treasury policy (some $335,000) constituted approximately 90% of the income of the fund in 2000. The balance of the fund is sourced from contributions of sporting and racing clubs. For example, the contribution of the Australian Football League (the "AFL"), which conducts the major sporting event on Anzac Day, was $20,000.

In terms of the operation of the ANZAC Day Proceeds Fund, Melbourne Legacy submitted that there is:

"a clear distinction between "commemorative" activity and the "revenue" aspects of ANZAC Day. Clearly, the Patriotic Funds Council is the appropriate body (and should be the only body) whose function is to receive and apportion proceeds generated into the Fund to ex-service organisations."[37]

The Committee considers that the ANZAC Day Proceeds Fund is the appropriate mechanism for the funding of matters relating to ANZAC Day. However, there is clearly scope for the source of funds to be expanded.

There does not seem to be any policy reason or principle to justify confining contributions to the fund to the activities of sport and racing. The Committee considers other activities undertaken on ANZAC Day should be a source of contribution to the fund. In this context, theatres, cinemas and entertainment associated with hotels and licensed clubs appear to be appropriate sources of contributions. In particular, it does not seem unreasonable to expect contributions to be sourced from relevant gaming activities. There are plausible grounds for the Treasury policy relating to totalisator wagering taxation to be similarly applied with respect to gaming taxation[38]. Such an expansion of sources of income for the fund is likely to have a substantial corresponding impact on the quantum of the fund.

In considering this issue, the Committee has identified a fundamental principle that those, whether sporting, gaming or entertainment organisations, which receive commercial benefit for their activities should make a reasonable contribution to the ANZAC Day Proceeds Fund that is commensurate with the commercial outcome of conducting the particular activity on ANZAC Day. This matter is discussed further in relation to Recommendations 12 and 13 below.

Recommendation 9

The Committee recommends the continuation of the ANZAC Day Proceeds Fund, administered by the Patriotic Funds Council.

Funding ANZAC Day

An important consideration in respect of the conduct of ANZAC Day ceremonies is that of how they should be funded. Apparently, the ceremonies are, in effect, funded by the RSL and through the goodwill of other organisations. In this context, the Committee received evidence that in respect of the ceremonies held in Melbourne, the City of Melbourne sends the RSL an invoice for all services which it provides on the day[39].

The Committee considers that having regard to the significance of ANZAC Day, its important ceremonies should not be vulnerable because of financial or resource deficiencies. While the goodwill that supports the existing conduct of the ceremonies reflects the significance of the day, it is nevertheless not the most satisfactory arrangement. The Committee considers that the ceremonies are of such substantial importance that their continued success should be guaranteed at least in respect of financial and resource terms. Accordingly, the Committee considers that a portion of the ANZAC Day Proceeds Fund should be made available to meet the costs of the conduct of ANZAC Day ceremonies. To this extent only, the ANZAC Day ceremonies should be the subject of legislation.

Recommendation 10

The Committee recommends that the legislation authorise the funding of approved ANZAC Day commemoration ceremonies through the ANZAC Day Proceeds Fund.

Shrine of Remembrance

The review prompted consideration of the role of the Shrine of Remembrance with respect to ANZAC Day. The Shrine is managed by the Shrine of Remembrance Trustees under the Shrine of Remembrance Act 1978.

The Shrine of Remembrance Act 1978 makes provision for the care, management and maintenance of the Shrine of Remembrance and other Memorials for other purposes. The Shrine of Remembrance Act does not refer to ANZAC Day, nor does the Anzac Day Act 1958 make reference to the Shrine of Remembrance.

The Trustees of the Shrine submitted that the Shrine of Remembrance should have a formal role "in helping raise awareness and educate current and future generations about the ANZAC spirit."[40]

The Trustees of the Shrine submitted that the review provides an opportunity to extend the scope of the functions of the Patriotic Funds Council so that it also provides financial support to commemorative bodies such as the Shrine of Remembrance. The proposed financial support would be provided by distributing funds to the Shrine, and other commemorative bodies, from the ANZAC Day Proceeds Fund. These funds could then be utilised by the Shrine, or commemorative bodies, for purposes consistent with their objectives, and in recognition of the pivotal role that can be played in the education and promotion of remembrance.[41]

The Trustees of the Shrine also suggested that there should be an ability for:

"The trustees of patriotic funds to assign or bequest their assets to the Shrine (or other appropriate commemorative bodies) to further the promotion of remembrance by the development of the Shrine "Galleries of Remembrance" and the provision of educational resources relevant to developing a greater understanding of the ANZAC spirit."[42]

Accordingly, the Trustees of the Shrine of Remembrance submitted that the Committee, in its deliberations consider:

  • "the future role of the Shrine in the ongoing facilitation of remembrance and the ANZAC spirit throughout Victoria.

  • the legislative environment in which this role could exist.

  • the capacity of the Shrine to deliver quality educational programs to school children in Victoria.

  • the infrastructure and resources required to enable the Shrine to have a future role in educating and promoting greater awareness and appreciation of values including leadership, service, commitment, loyalty, peace and goodwill as exemplified by previous generations and by the commitment of current generations to peacekeeping.

  • the capacity of the Patriotic Funds Council of Victoria to allocate funds to the Shrine of Remembrance to use in accordance with its objects and purpose including for its future development (in particular the Galleries of Remembrance); its maintenance and for the development of education programs that maintain and foster appreciation of the ANZAC spirit."[43]

The Committee accepts the force of the proposals of the Trustees of the Shrine of Remembrance and, in particular, welcomes the current redevelopment of the Shrine precincts to allow for the greater provision of information and other educative resources to school students and other visitors. However, the Committee is keen to emphasise that the central role in the conduct of ceremonies on ANZAC Day should remain with the ex-service organisations[44]. Similarly, the central role in the performance of legislative functions should reside with the proposed ANZAC Day Education and Commemoration Committee[45].

The Shrine of Remembrance offers scope for a powerful medium for the education and commemoration of ANZAC Day and, more broadly, the service of Australians in wars and peacekeeping efforts. If Victoria is to be serious about according appropriate significance to this task, enhancing the functions of the Shrine is an opportunity we can ill-afford to ignore. Therefore, the Committee considers that the Trustees of the Shrine should have legislative support for greater involvement in education activities. The scope of these activities is discussed later in this report.[46]

The proposed expanded role of the Shrine of Remembrance is a very worthy one. However, its worth will not be achieved if appropriate funding is not made available to enable it to perform the functions of its role. The importance of the contribution that the Shrine of Remembrance can make in respect of ANZAC Day is sufficiently considerable as to justify substantial priority in the allocation of funding.

Recommendation 11

The Committee recommends that:

(a) the Shrine of Remembrance Act 1978 be amended to enable the Trustees of the Shrine to develop, promote, facilitate and organise education initiatives relating to the service of Australians in defence of their country and in peacekeeping activities, including those relating to ANZAC Day; and

(b) the Government provide sufficient funding for this new function.

Sport

The conduct of sport on ANZAC Day is subject to approval by the Minister for Sport and Recreation under the Anzac Day Act 1958. The Minister has power to direct any individual sporting body to pay a portion of the event’s net profit to the fund. In the case of clubs holding events outside the metropolitan area, the Minister may authorise the payment of such profits to other patriotic funds (after consulting with the President of the RSL to ensure the bona fides of such funds).

The framework for sporting clubs effectively mirrors that for racing clubs where the Minister for Racing has comparable responsibilities under the Racing Act 1958.

It is clear that there is significant dissatisfaction with the existing legislative scheme governing contributions by major sporting organisations to the ANZAC Day Proceeds Fund. This dissatisfaction is primarily founded on equity grounds. In this context, submissions pointed to a perceived inadequacy of the contribution presently made by the Australian Football League (the "AFL"). For example, the RSL (Victorian Branch) submitted that:

"The arrangements with the racing industry ought to continue and that there should be contributions sought from other paid sporting events, including the AFL, and the conduct of rugby and sporting events. It is submitted that the arrangements in relation to racing are appropriate, but there is a need for further improved financial arrangements with the AFL and with other organizations providing sport in relation to which section 4(7) of the Act applies. It is appropriate that such funds that are collected from sporting organizations ought to be placed in the ANZAC Day Proceeds Fund and that fund ought to be distributed not only for the purposes for which it is distributed by the Patriotic Funds Council, but also to assist in the educative activities proposed in the Discussion Paper."[47]

Further, Melbourne Legacy submitted that:

"It is understood that the present level of contribution from the AFL is miniscule (compared in relative terms to that of the Racing industry). It is suggested that a set levy be imposed on every ticket sold to patrons at AFL/VFL games to obviate a currently perceived inequity in the level of AFL contribution to the Fund."[48]

The Patriotic Funds Council submitted that:

"There should be no geographic distinction between sporting events that are held in Victoria on ANZAC Day and that all events contribute to the ANZAC Day Proceeds Fund."[49]

The Patriotic Funds Council specifically queried if it would be possible for the AFL to make a greater contribution to the ANZAC Day Proceeds Fund and proposed a scheme for contributions to the ANZAC Day Proceeds Fund as follows:

"The AFL donate a figure equivalent to 6.25% of the adult daily admission price per head of crowd, for future ANZAC Day AFL fixtures (Donation = Official attendance x Adult admission price x 6.25%).

The ANZAC Day Proceeds Fund gain access to 0.275% of the yearly funding made available to the Community Benefit Levy for assistance in the funding of essential programs for the ex service community.

The ANZAC Day Proceeds Fund gain access to 0.275% of the yearly funding made available to the Community Support Fund levy for assistance in the funding of essential programs for the ex service community.

That any sporting or entertainment event conducted on ANZAC Day for which an admission charge is made, an appropriate contribution is made to the ANZAC Day Proceeds Fund."[50]

The RSL (Victorian Branch) put forward the following proposal with respect to the conduct of sport on ANZAC Day:

"The Branch desires to make a further submission dealing with Section 4(3) of the Act in relation to the conduct of paid sport. It is noted at present that the consent of the President of the Victorian Branch is required for the conduct of paid sport more than 30 miles from the GPO. It is submitted the restriction of 30 miles from the GPO ought to be removed and that the consent for conduct of all paid sport in the State of Victoria ought to be subject to the consent of the President of the RSL. It is noted that the definition of sport, as set out in Section 4(7) and the relevant criteria is as follows "which persons are admitted on payment of an admission fee, or charge or after any donation has been sought from them" would restrict the number of consents that would be required. There no longer appears to be any reason for a differentiation between matters that take place in Greater Melbourne as against matters that take place in the balance of Victoria."[51]

The AFL match on Anzac Day is renowned as a sustained outstanding success.[52] In such circumstances, it is not unreasonable to expect that the AFL should make a more substantial contribution to the fund. The AFL submitted that:

"The AFL works very closely with the RSL in the staging of the game and devotes the pre-match ceremony to recognise those men and women who paid the ultimate sacrifice in various theatres of war. We also make a direct financial contribution to the RSL.

We believe it is very appropriate for Australia’s only indigenous game to partner the RSL in this way to acknowledge the Anzac spirit and preserve its history and tradition for current and future generations."[53]

Racing Victoria Limited proposed that consideration be given to:

"Amending Section 22A(4)(b) of the Act to require that racing clubs make a donation to the ANZAC Day Proceeds Fund or local RSL branch as agreed rather than having to pay the whole of the net profits from race meetings."[54]

The question of contribution to the ANZAC Day Proceeds Fund is clearly important. The issue is not so much about a requirement to contribute, but rather about equity of contribution. In respect of this issue, the Committee concluded that the fundamental threshold principle (which has strong general support) is that those, whether sporting, gaming or entertainment organisations, who receive commercial benefit for their activities should make a reasonable contribution to the ANZAC Day Proceeds Fund that is commensurate with the commercial outcome of conducting the particular activity on ANZAC Day.

Acceptance of this fundamental principle provides the basis for an equitable scheme of contributions. The Committee considers that an appropriate equitable scheme can be enacted by investing in the Premier a power to prescribe a formula for contributions by major sporting organisations to the ANZAC Day Proceeds Fund. In this way, there will be fair regulation of the contribution to be made by the racing industry and by the Australian Football League, or other sporting organisations conducting a major event on ANZAC Day.

Recommendation 12

The Committee recommends that the existing contribution by sporting bodies, (eg, horse racing and football), to the ANZAC Day Proceeds Fund be, in future, regulated according to a specific formula, or formulas, prescribed by the Premier after consultation with the ANZAC Day Education and Commemoration Committee.

Gaming

Unlike sport, the conduct of gaming activities on ANZAC Day is not subject to approval by the Minister for Sport and Recreation under the Anzac Day Act 1958. This is, no doubt, due to the fact that legalised gaming came in to being after the original ANZAC Day legislation was passed.

However, similar to the sentiments expressed about sport on ANZAC Day, it is clear that there is a significant issue concerning the conduct of gaming activities on ANZAC Day and the question of contributions by the gaming industry to the ANZAC Day Proceeds Fund. As with sport, this issue is primarily about equity considerations. For example Melbourne Legacy submitted that:

"Gaming has in recent years become a major recreational pastime (and revenue source) and is presently not captured as income contribution to the ANZAC Day Proceeds Fund. Melbourne Legacy contends that gaming should be captured with an appropriate percentage of profit made by all operators on ANZAC Day directed to the Fund."[55]

The Victoria Racing Club contended that the Gaming Industry should contribute to the ANZAC Day Proceeds Fund and proposed that:

"The proceeds normally contributed to the Community Support Fund (for ANZAC Day) be channeled into the ANZAC Day Proceeds Fund."[56]

Similar views were expressed by the Australian Veterans and Defence Services Council that:

"All sporting, gambling and entertainment activities conducted on ANZAC Day should have the appropriate approval and should be required to contribute to the ANZAC Day Appeal."[57]

The Committee considers there is no reason in principle why the gaming industry should not be required to contribute to the ANZAC Day Proceeds Fund in respect of its activities on ANZAC Day. Whilst the RSL was not directly supportive of this measure[58], this was, in part, due to its scrupulous perception of conflict of interest. In this regard, numerous branches of the RSL derive benefit from gaming on ANZAC Day. In light of this, the RSL appears to have been concerned that there would be an element of double dipping if its constituency received benefits both from gaming revenue received on ANZAC Day in accordance with ordinary operations and from contributions made to the ANZAC Day Proceeds Fund. However, the Committee considers that an occasion for conflict of interest will not arise as the RSL branches conducting gaming operations on ANZAC Day will be required to make a contribution to the ANZAC Day Proceeds Fund in respect of those operations.

A further consideration in relation to gaming is the impact that a requirement to make a contribution to the ANZAC Day Proceeds Fund may have on existing obligations to contribute to the Community Support Fund. The Committee recognises that a legislative requirement for the gaming industry to contribute to the ANZAC Day Proceeds Fund may have wider policy implications for the Community Support Fund. However, these policy issues are not irresolvable. The welfare objectives, and proposed educative focus, of the ANZAC Day Proceeds Fund are not inconsistent with the comparable objectives of the Community Support Fund. In any event, as a matter of policy it may be considered reasonable for the gaming industry’s contribution to the ANZAC Day Proceeds Fund to be additional to, rather than in substitution for, its contribution to the Community Support Fund in respect of its ANZAC Day activities.

Moreover, even if the requirement on the gaming industry to contribute to the ANZAC Day Proceeds Fund is implemented on a substitution basis, a plausible policy position can be sustained if the implications are perceived, not as the Community Support Fund foregoing revenue, but rather as a diversion to the ANZAC Day Proceeds Fund of contributions to be utilised consistently with the objectives of the Community Support Fund.

As discussed in relation to sport, the Committee concluded that there is a fundamental threshold principle that those, whether sporting, gaming or entertainment organisations, who receive commercial benefit for their activities should make a reasonable contribution to the ANZAC Day Proceeds Fund that is commensurate with the commercial outcome of conducting the particular activity on ANZAC Day.

In accordance with this principle, the Committee considers that ANZAC Day legislation should provide a power for the Premier to prescribe a formula for the contribution by the gaming industry to the ANZAC Day Proceeds Fund in respect of the industry’s activities on ANZAC Day.

Recommendation 13

The Committee recommends that a contribution to the ANZAC Day Proceeds Fund should be made by the gaming industry in respect of gaming activities conducted on ANZAC Day, and the appropriate contribution be prescribed by the Premier after consultation with the ANZAC Day Education and Commemoration Committee.

Business

The Liquor Control Reform Act 1998, the Shop Trading Reform Act 1996, the Labour and Industry Act 1958 and the provisions relating to cinemas and entertainment in the Anzac Day Act 1958 all impose restrictions on business activity on Anzac Day. In particular, the following businesses are subject to statutory restrictions on Anzac Day:

  • Licensed premises, except those referred to below with permanent extensions permitting trade;

  • Shops, except the exempt shops listed in Appendix G;

  • Factories, except the those exceptions listed in Appendix H;

  • Cinemas and other, in effect, live entertainment, except those given a permit by the Minister.

The primary issue in this context relates to restricted trading hours. The RSL (National Headquarters) submitted:

"Commercial trading, and the conduct of commercial entertainment and organised sporting events before 1pm on 25 April be prohibited by law, with appropriate exemptions only for essential services."[59]

The Australian Veterans and Defence Services Council contended that:

"ANZAC Day is a Day of Commemoration and no extension to the existing trading arrangements should ever be considered."[60]

The Committee concluded that the accepted view is that expressed by the RSL (Victorian Branch) that:

"The morning of ANZAC Day ought to be reserved for commemorative activities and that sporting, commercial and cultural activities ought to take place in the afternoon. This is after 1.00pm and, further, that ANZAC Day should be deemed to commence for legislative control purposes at 5.00am and that all such control should be on a State wide basis."[61]

The issue of how long restrictions on business should apply on Anzac Day appears less vexed than the issue of which businesses should be subject to restriction. The commencement of restrictions at 5am is considered reasonable having regard to the traditional dawn service ceremony. It is considered that the existing general arrangements are reasonable ie, where subject to exceptions, shops, factories and cinemas are closed until 1.00pm, whilst licensed premises are closed, generally from 5am, until 12 noon and sport, races and other entertainment cannot commence before 1.00pm.

Notwithstanding the reasonableness of the existing general arrangements, the Committee found that anomalies and inconsistencies appear in laws affecting business activity on ANZAC Day. For example, the Liquor Stores Association of Victoria pointed to inconsistencies within the Liquor Control Reform Act 1998 and between that Act and the Shop Trading Reform Act 1996 with the consequence that on ANZAC Day:

  • vignerons can trade after 10am;

  • holders of packaged liquor licences can trade after 12 noon;

  • the Director of Liquor Licensing Victoria has discretion to allow trading after 10am, including for holders of limited licences; and

  • shop traders can trade after 1pm[62].

Accordingly, the Liquor Stores Association of Victoria contended that the existing laws create unfair advantages amongst businesses and submitted that:

"The restrictions for retail sale of liquor and general shop trading are inconsistent and should be standardised to either 12 noon or 1pm across the business sector."[63]

The Committee notes that a primary issue with respect to the efficacy of existing laws appears to be related to enforcement of the laws. For example, the RSL (Victorian Branch) observed:

"It is submitted that the current laws are working adequately in theory, but that there is an issue in relation to their proper enforcement."[64]

The Committee recognises the potential for ineffective laws where they are not supported by appropriate enforcement mechanisms. Although the arrangements for enforcement are not a matter for the Committee’s present considerations, it is to be hoped that governments will commit resources to enforcement of ANZAC Day laws commensurate with the significance of the day.

Recommendation 14

The Committee recommends that, in light of the accepted view that the period from dawn until the conclusion of commemorative services on April 25 should be observed as a time of solemn reflection, there should be uniform trading hours throughout Victoria on ANZAC Day with business activity restricted between 5am and 1pm.

Shop Trading

In respect of shop trading, there were competing views about whether the existing arrangements are satisfactory[65]. There are plausible arguments each way on restricting business activity on ANZAC Day. The prime issues in this regard relate to which business activities should be prohibited on ANZAC Day, and, for how long. The proponents of commercial liberty would tend to advocate minimum disturbance to business, and where restrictions are imposed they be counter-balanced by an accessible and liberal system of exceptions. On the other hand, arguments steeped in the objective of preserving the sanctity of ANZAC Day would tend to advocate optimum restrictions on business, and where exceptions are necessary, they be available only in the public interest of ensuring provision of services that are essential.

The Committee came to the conclusion that the existing list of shops exempt from the requirement to close on the morning of ANZAC Day was outmoded and minimally required updating. In this regard, it is difficult to understand why shops such as saddlery shops and shops for the sale of swimming pools should be enabled to remain open on ANZAC Day morning in the same way as shops providing essential services, such as chemists and bakeries.

However, a more fundamental consideration is whether the restriction on business activities is properly addressed by means of a list of exempt shops. It is characteristic of retail activity in contemporary times for convenience stores, chemists and newsagents to retail a range of goods. For example, in the case of chemists and newsagents, they commonly offer goods that have little connection to their traditional core business. In this regard, both these businesses may also operate as Tattersalls agencies, and in the case of chemists, frequently offer photographic services[66]. Neither of these services could be considered to be essential commercial services that warrant being provided in the public interest on ANZAC Day morning.

In the circumstances, the Committee considers that, rather than listing exempt shops, the restrictions on business activity should be expressed in respect of the particular activity. The business activities which the Committee considers should not be restricted from trade on ANZAC Day morning are, for example:

The sale of: –

  • Bread

  • Prescription drugs and other items of a medicinal nature, with or without a doctor’s prescription

  • Daily newspapers

  • Prepared meals, whether or not for take away or consumption within the premises of the business

  • Flowers and plants

  • Petrol

  • Fruit and vegetables

  • Food and groceries

Recommendation 15

The Committee recommends that the essential commercial services exempt from the restriction on trading before 1pm on ANZAC Day should be identified according to the characteristics of the particular activity rather than the premises, or shops, from which the activity is retailed. For example, authorised trading activities would include the sale of:

  • Bread

  • Prescription drugs and other items of a medicinal nature with or without a doctor’s prescription

  • Daily newspapers

  • Prepared meals, whether or not for take away or consumption within the premises of the business

  • Flowers and plants

  • Petrol

  • Fruit and vegetables

  • Food and groceries

Liquor Licensing

In respect of liquor licensing laws, it appears generally accepted that there should be some restriction of the licensing of the sale of liquor on ANZAC Day morning. However, the primary issue relates to the particular hours for such restrictions.

As referred to above under the Liquor Control Reform Act, licensed premises are generally prohibited from trading before 12 noon on ANZAC Day, with the exception of holders of a vigneron licence who are entitled to trade from 10.00am on ANZAC Day. Pursuant to the Act, a number of businesses are permanently licensed to trade prior to 12 noon on ANZAC Day. When initially applying for the permanent extension of trading hours to provide for ANZAC morning trading, all the licensees would have been required to specify details of the proposed ANZAC morning trading in accordance with public display and advertisement requirements related to the application. The overwhelming majority of the permanent extensions were granted by the Liquor Licensing Commission prior to February 1999 pursuant to the then Liquor Control Act 1987, with the Commission satisfying itself that the extended trading would not impinge on ANZAC Day proceedings. The Director of Liquor Licensing Victoria advised that in exercising discretion to enable ANZAC morning trading it is important to be wary of opportunistic applications seeking, in effect, to "trade off" the occasion of ANZAC Day[67].

Against that background, the following businesses are licensed to trade 24 hours a day 365 days a year, therefore being licensed to trade throughout the whole of each ANZAC Day:

Gaming venues 5

Nightclubs/bars 1

Airport related 18

Casino related 15

Additionally, there are 10 gaming venues and 31 nightclubs licensed to trade to 5am, 6am or 7am on ANZAC Day morning.

The existing liquor licensing regime for ANZAC Day is, in effect, one that observes the sanctity of ANZAC Day morning, but provides for discretionary exceptions. The Committee received evidence that there are special circumstances where morning liquor trading is reasonable. In particular, there are instances where liquor trading is complementary to the conduct of an ANZAC morning ceremony. A particular instance of this is the holding of a gunfire breakfast.

Another special circumstance that appears reasonable relates to the AFL match held at the Melbourne Cricket Ground on ANZAC Day. In this context, the Melbourne Cricket Club submitted that:

"While the match would certainly continue to commence well after 1.00 p.m., our venue needs to be opened before this time to allow safe entry for 80,000 – 90,000 patrons. As with any venue, there are retail outlets and licensed premises within and adjacent that provide appropriate facilities and services for our patrons. In the review of legislation, we would seek clarification that the facilities at the venue can be in operation from 11.00 a.m. at which time the gates would open to allow entry.

It would be inappropriate to open the gates and not operate these services, nor would it be sensible to delay the gate opening time to 1.00p.m."[68]

The Committee is conscious that the ANZAC Day AFL match has done much to heighten public awareness of the significance of ANZAC Day. The Committee recognises the practical implications of facilitating the timely entry of patrons to the MCG. The Committee considers that this constitutes special circumstances where an exception to the restrictions on trading is justified. The Committee acknowledges that similar considerations apply with respect to the Victoria Racing Club.[69]

In endorsing a need to recognise special circumstances for liquor licensing on ANZAC morning, the Committee considers that the legislation should specifically codify the special circumstances where ANZAC morning trading can occur. The current Director of Liquor Licensing has applied good judgement in dealing with these issues but the Committee believes, for the long term, the existing system of discretionary decisions being made by the Director of Liquor Licensing should be codified. In this regard, the Committee is mindful of the evidence of the Director of Liquor Licensing concerning the need to be wary of opportunistic applications to trade on ANZAC morning.

Recommendation 16

The Committee recommends that there should be uniform liquor licensing laws throughout Victoria on ANZAC Day, so that licensed premises are closed between 5am and 12 noon, except where special circumstances exist, such as gunfire breakfasts on ANZAC Day.

Gaming Hours

In relation to gaming, the notion that particular laws be put in place to restrict gaming on ANZAC Day morning appears to be generally accepted. The RSL (Victorian Branch) considered that no licensed premises should be open between 5.00am and 10.00am.[70]

The Victoria Racing Club put the view that:

"Gaming venues be allowed to continue to open according to Liquor License. However, we propose that Gaming machines not be permitted to operate until 12 noon."[71]

The Committee understands that Crown Casino voluntarily limits the operation of gaming facilities on ANZAC morning. Whilst the Committee acknowledges the approach taken by Crown Casino, the Committee nevertheless considers it is reasonable for the operation of gaming facilities to cease on ANZAC morning at Crown Casino for the same hours as at other gaming outlets.

The Committee received no compelling evidence to suggest that the operation of gaming facilities should be treated differently to other commercial, sporting or entertainment activities. Accordingly, the Committee considers that a prohibition for such activities should be in place between 5am and 1pm on ANZAC Day.

Recommendation 17

The Committee recommends that the operation of gaming facilities be prohibited between 5am and 1pm on ANZAC Day.

Community Markets

The Committee was made aware of an issue with respect to trading on ANZAC morning by community markets[72]. Community markets are those temporary trading operations that occur weekly or monthly, typically on a Sunday, in suburban and country locations. Because of the nature of the community markets, they are not covered by existing legislation, such as the Shop Trading Reform Act 1996.

The issue arises when, in a particular year, ANZAC Day happens to coincide with a day on which a community market is operating. In rural towns, particularly, there may be considerable interference with ANZAC Day ceremonies, especially the march, if community markets are being prepared for operation, or are operating.

The Committee received no compelling evidence to suggest that the operation of community markets should be treated differently to other commercial activities. Accordingly, the Committee considers that a prohibition for trading by community markets should be in place between 5am and 1pm on ANZAC Day.

Recommendation 18

The Committee recommends that trading by community markets be prohibited between 5am and 1pm on ANZAC Day.

Factories

The Committee also considered the issue of factories opening on ANZAC Day. Under existing arrangements, the closing of factories on ANZAC Day is dealt with in the Labour and Industry Act 1958. Section 139 of this Act provides that "every factory warehouse shall be closed and kept closed on ANZAC Day" and employees in such factories are entitled to a whole day holiday. There is an exception for certain factories that, in effect, are engaged in the production of essential goods or services such as, gas supply or milk supply, and, for those whose operations involve continuous production. The list of factories not required to close on ANZAC Day under the Labour and Industry Act 1958 is set out in Appendix H.

The Committee resolved that the existing arrangements are satisfactory and should be maintained.

Recommendation 19

The Committee recommends that the existing arrangements be maintained where factories are closed for the whole day on ANZAC Day, unless a factory is not required to close in accordance with the provisions of the Labour and Industry Act 1958.

Auctions for the Sale of Property

The Committee also was made aware of the potential for auctions for the sale of property to occur on ANZAC morning. The conduct of auctions for the sale of property is not consistent with the principle of commemoration that underpins ANZAC Day. Such commercial activity may be perceived as being offensive to the solemn observance of ANZAC Day.

The Committee received no compelling evidence to suggest that the conduct of auctions for the sale of property should be treated differently to other commercial activities. Accordingly, the Committee considers that a prohibition on auctions for the sale of property should be in place between 5am and 1pm on ANZAC Day.

Recommendation 20

The Committee recommends that the conduct of auctions for the sale of property be prohibited between 5am and 1pm on ANZAC Day.

Sport and Entertainment Hours

The existing legislation prohibits sport and entertainment events before 1pm on ANZAC Day. In respect of sport and entertainment, there is a general consensus that these events should be restricted from being undertaken during the ANZAC Day morning in recognition of the solemnity of the commemoration activities being conducted at that time. However, there is some divergence of views as to the extent of the time for which the restriction should apply.

The Victoria Racing Club submitted a proposal for "the Raceday to commence at 12.10pm and conclude at 4.50pm."[73]

Racing Victoria Limited proposed:

"Amending Section 22A(3) of the Racing Act 1958 ("Act") so that a race meeting on ANZAC Day may commence not before 12pm (rather than 1pm as is presently the case)".[74]

The Committee considers that the existing arrangements for sport and entertainment events have worked satisfactorily and recommends that they be maintained[75].

Recommendation 21

The Committee recommends that the existing arrangements with respect to conduct of sporting events, horse racing and entertainment on ANZAC Day be maintained, so that such activities are not commenced before 1pm.

Cinemas and Live Theatre

The current law allows the conditional opening of cinemas and theatres before 1.00pm on ANZAC Day, subject to government approval.

Whilst cinemas and live theatre should be expected to conform to the same restrictions placed on other commercial, sporting and entertainment activities, the Committee considers that special circumstances may arise as to justify a departure from the general restriction.

In this regard, the Committee does not perceive a conflict with the principle of solemn observance on ANZAC morning if the nature of a particular cinema or live theatre show is consistent with ANZAC Day. In this context, such a show may serve to enhance the commemoration of, or contribute to education about, ANZAC Day and the ANZAC spirit.

To recognise special circumstances the Committee proposes that the new Act make provision so that the Premier, after consultation with the ANZAC Day Education and Commemoration Committee, may grant approval for a cinema or live theatre show before 1pm on ANZAC Day where the nature of the particular show is consistent with the purposes of ANZAC Day.

Recommendation 22

The Committee recommends that the operation of cinemas and live theatres be prohibited between 5am and 1pm on ANZAC Day, except where the nature of particular cinema or live theatre shows is consistent with the purposes of ANZAC Day, and, after consultation with the ANZAC Day Education and Commemoration Committee, the Premier grants approval.

Penalties

A number of submissions drew attention to the existing anomalies in the penalties for breach of provisions relating to ANZAC Day. In this context, it is curious that breaches of the Shop Trading Reform Act 1996 on ANZAC Day can attract penalties of 100 penalty units ($10,000), whilst breaches of the recently enacted cinemas and entertainment provisions of the Anzac Day Act 1958 attract penalties of only 5 penalty units ($500). There is general support for consistency in levels of penalties.

The Committee has addressed this issue in the context both of uniformity penalties as well as levels of penalty that meet community expectations. The Committee considers that these anomalies should be removed by instituting a scheme of penalties providing for breaches of the proposed ANZAC Day legislation by individuals to attract a penalty up to 100 penalty units (currently the equivalent of $10,000).

The Committee notes that enforcement of laws is perceived to require attention[76]. The Committee hopes that governments will commit resources to enforcement of ANZAC Day laws commensurate with the significance of the day.

Recommendation 23

The Committee recommends there be higher and consistent penalties for the breach of ANZAC Day laws, with the level of penalty to be up to 100 penalty units.

Footnotes
[23]

Ibid.

[24]

RSL (National Headquarters), op cit.

[25]

See Recommendation 8.

[26]

RSL (Victorian Branch), op cit.

[27]

Ibid.

[28]

RSL (National Headquarters).

[29]

Submissions of SDA, 25 July 2002 and ARAV, op cit.

[30]

Submission of the Legacy Club of Melbourne, 22 July 2002.

[31]

See discussion in respect of Recommendations 12 and 13.

[32]

Ibid.

[33]

Particularly from the conduct of racing within 30 miles (50km) of the GPO in Melbourne and the AFL match held on ANZAC Day, but the major contribution is from totalisator wagering taxation.

[34]

Submission of the Patriotic Funds Council of Victoria, 1 August 2002.

[35]

Ibid.

[36]

The existing provisions establishing the ANZAC Day Proceeds Fund are unclear as to the authority for the Fund to receive the Treasurer’s "donation." However, this appears not to have been a cause for concern.

[37]

The Legacy Club of Melbourne, op cit.

[38] However, this has some implications for the Community Support Fund: see the discussion in relation to Recommendation 13.
[39] Evidence of Brigadier Keith Rossi, RSL Historian.
[40] Submission of Trustees of the Shrine of Remembrance, 11 September 2002.
[41] Ibid.
[42] Ibid. The Trustees note that amendment of the Patriotic Funds Act 1958 would be required, perhaps similar to the existing provisions concerning distribution to patriotic funds and registered charitable organisations.
[43] Ibid.
[44] See Recommendation 4.
[45]

See Recommendation 8.

[46] See Chapter 8.
[47] RSL (Victorian Branch) op cit.
[48] The Legacy Club of Melbourne, op cit.
[49] Patriotic Fund Council of Victoria, op cit.
[50] Ibid.
[51] RSL (Victorian Branch) op cit.
[52]

The submission of the Australian Football League advises that the ANZAC Day game attracts 85,000 people or more and is also telecast live throughout Australia.

[53] Submission of the Australian Football League, 16 July 2002.
[54] Submission of Racing Victoria Limited, 26 July 2002.
[55] The Legacy Club of Melbourne, op cit.
[56] Submission of the Victoria Racing Club, 15 July 2002.
[57] The Australian Veterans and Defence Services Council, op cit.
[58]

RSL (Victorian Branch) op cit.

[59] RSL (National Headquarters), op cit.
[60] The Australian Veterans and Defence Services Council, op cit.
[61] RSL (Victorian Branch), op cit.
[62] Submission of the Liquor Stores Association of Victoria Inc, 3 July 2002.
[63] Ibid.
[64] RSL (Victorian Branch), op cit.
[65]

E.g., submissions of the RSL and the Australian Retailers Association of Victoria.

[66] Submission of Noel Turner, 30 July 2002 which advocates that the current ANZAC Day trading hours’ laws are very unfair on Tattersalls business and Tattersalls agents should be exempted or newsagencies be prohibited from selling lottery tickets until 1pm.
[67] Evidence of Brian Kearney, Director of Liquor Licensing Victoria.
[68] Submission of the Melbourne Cricket Club, 17 July 2002.
[69]

Submission of Victoria Racing Club advised that in 2002 the Flemington Racecourse Tabaret opened at 10.00am. Food and beverage outlets and machines operated from this time.

[70] RSL (Victorian Branch), op cit.
[71] Victoria Racing Club, op cit.
[72] Evidence of Brigadier Keith Rossi, RSL Historian.
[73] Victoria Racing Club, op cit.
[74] Submission of Racing Victoria Limited, op cit.
[75]

However, see special arrangements for cinemas and live theatre below.

[76] For example, see the discussion with respect to business and Recommendation 14.

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