ALERT DIGEST 7 of 1994
Part 1
The Committee has considered the following Bills
Arts Institutions (Amendment) Bill
Vocational Education and Training (Amendment) Bill
Tertiary Education (Amendment) Bill
Magistrates' Court (Amendment) Bill
Gaming and Betting Bill
Catchment and Land Protection Bill
Office of the Regulator-General Bill
Water (Further Amendment) Bill
Swan Hill Pioneer Settlement Authority (Repeal) Bill
Victorian Funds Management Corporation Bill
State Trustees (State Owned Company) Bill
Melbourne Water Corporation (Amendment) Bill
Westernport (Crib Point Terminal) Bill
Melbourne Exhibition Centre Bill
Superannuation Acts (Amendment) Bill
Electricity Industry (Amendment) Bill
The Committee reports on the following Bills
Arts Institutions (Amendment) Bill
Vocational Education and Training (Amendment) Bill
Tertiary Education (Amendment) Bill
Magistrates' Court (Amendment) Bill
Gaming and Betting Bill
Catchment and Land Protection Bill
Office of the Regulator-General Bill
Water (Further Amendment) Bill
Swan Hill Pioneer Settlement Authority (Repeal) Bill
Victorian Funds Management Corporation Bill
State Trustees (State Owned Company) Bill
Melbourne Water Corporation (Amendment) Bill
Westernport (Crib Point Terminal) Bill
Melbourne Exhibition Centre Bill
Superannuation Acts (Amendment) Bill
Electricity Industry (Amendment) Bill
ARTS INSTITUTIONS (AMENDMENT) BILL
1.1
This Bill was introduced into the Legislative Assembly on 27 April 1994 by The Honourable Pat McNamara with The Honourable Phil Gude.
1.2
This Bill amends various Acts within the Arts Portfolio. Its purposes are to provide for revised management of the major arts institutions and clarify and update the Public Records Act 1973.
1.3 ¯ National Gallery of Victoria Act 1966
Part 2 amends the National Gallery of Victoria Act 1966.
Clause 5 provides that the Council is to represent the Crown and is subject to the general direction and control of the Minister. Clause 6 provides that a person can be a member of the Council for nine consecutive years. Clause 8 inserts a new section 10A which provides that membership of the Council is not an office of profit.
The Committee makes no further comment.
1.4 ¯ Section 4D(a)(v) - Insufficiently subjects the exercise of legislative power to parliamentary scrutiny
Clause 10 amends section 14(2) by removing the 10 year cooling off period for the de-accessioning of works for the state collection. (de-accessioning is the disposal of works of art) The Committee notes the comments in the Second Reading Speech:-
"The effect of this amendment will be to ensure that the Council of Trustees, following receipt of the best possible advice, has the opportunity to recommend through the Minister to the Governor-in-Council that a work or works should be de-accessioned. Any decision to de-accession a work will be given careful consideration and be in accord with very strict guidelines to ensure that the composition of the State Collection is not harmed in any way."
It also provides that the Council may dispose of works of art in accordance to by-laws rather than by regulation. Previously, it was done by regulation.
The Committee wrote to the Minister with some concerns in respect of Section 4D(a)(iv) of the Parliamentary Committees Act 1968. The Minister responded by way of letter dated 10 May 1994, which is set out:-
"I refer to your letter of 3 May 1994, advising that the Scrutiny of Acts and Regulations Committee has considered the above Bill and is concerned that the removal of the powers of the Governor-in-Council to make regulations and the granting of powers to several arts statutory bodies to make by-laws may contravene section 4D(a)(v) of the Parliamentary Committees Act 1968.
In general this Government's policy in regard to the statutory authorities which have responsibility for the control of the State's arts institutions is to provide them with greater independence and freedom is operational and management areas and this is reflected in the Bill.
In regard to the making of by-laws, this Government supports the policy established by Arts Victoria under previous governments to provide legislative power to the statutory authorities to enable them to make by-laws covering matters of an operational and management nature.
With the introduction of the Libraries Act 1988, the Council of the State Library of Victoria, under section 52, was given power to make by-laws for or with respect to:
(a) regulating or prohibiting admission to or removal from any building managed or controlled by Council; and
(b) the preservation, inspection, copying or lending of library material.
With the passage of the Libraries (Amendment) Act 1992, the Libraries Act 1988 was amended and the Council of the State Library additional by-law making powers to provide for:
(c) the care, protection and management of land and buildings or parts of buildings owned or under the management or control of the Council, and the safeguarding of the contents of those buildings against theft or damage; and
(d) the preservation of good order and decency on land and in buildings or parts of buildings owned or under the management control of the Council.
In addition, that amending Act substantially revised the regulation making powers under the Museums Act 1983, including the removal of the prescription of charges for services provided by the Council of the Museum of Victoria and for admission to the Museum and provided for the Council to make by- laws for similar matters to those under (a), (b), (c) and (d) above. It should be noted that these matters had previously been required to be made by the Governor-in-Council as regulations.
With the passage of these two Acts, Parliament endorsed the Government's view that appropriate power should be given to these statutory authorities to make by-laws covering certain management and operational issues which were previously and unnecessarily set by regulations.
Furthermore, Parliament endorsed the proposal that the prescription of fees and charges relevant to those organisations should not be set by regulations but rather the level of these fees and charges should be determined by the Treasurer in the context of the annual budget process.
One of the major thrusts of the Arts Institutions (Amendment) Bill is to standardise common issues throughout the arts Acts. The revision of the regulation making powers and the introduction of the by-laws under this Bill merely extends to the remaining statutory arts institutions those facilities previously given by the Parliament to the State Library and the Museum.
In respect to Clause 10 of the Bill relating to the National Gallery of Victoria, it should be noted that the disposal of works in accordance with by-laws rather than regulations applies only to those works which form part of the National Gallery's Development Collection. Items in the State Collection will not be affected by this provision.
The Development Collection is a collection of works of art of developing artists purchased under the terms of endowment funds and managed by a committee of management including donors and Gallery representatives. A notable feature of the collection, which is separate from the Gallery's permanent collection, is that works can be extended or sold in order to upgrade an artist's representation.
As a management tool it is therefore more appropriate that National Gallery by-laws be used in the operation of this Collection rather than regulations.
Hoping that this response addresses the concerns of the Committee."
The Committee thanks the Minister for his response.
Clause 11 gives the Council the power to make by-laws with respect to the removal of the public, the preservation, inspection or lending of works of art, the leasing, sale or exchange of works of art and the giving of public lectures.
Clause 12 repeals the power of the Governor-in-Council to make regulations with respect to the charging of admission fees, the giving of lectures, prescribing penalties and the copying, preservation or lending of works of art.
The effect of Clauses 11 and 12 is to remove these areas from the scrutiny of Parliament. The Committee notes the comments in the Second Reading Speech:-
"Those institutions currently without by-law making provisions will be empowered to make by-laws for matters including the admission of persons, care, protection and management of facilities, conservation of collections and preservation of good order and decency. Whilst a general regulation making power will remain in the Acts, the prescribing of fees and charges will be excluded from the regulations as these are determined by the Treasurer in the context of annual budgets and as such are subject to detailed scrutiny and review."
The Committee wrote to the Minister regarding the exclusion of the fees and charges from the regulation making power of the Governor-in-Council. The Minister responded by way of letter dated 10 May 1994 which is set out above.
1.5 ¯ Victorian Arts Centre Act 1979
Part 3 amends the Victorian Arts Centre Act 1979.
Clause 17 amends the functions of the Trust and deletes the requirement for the Centre to obtain ministerial approval to present performances and entertainment in outside venues.
Clause 18 amends section 8(1) of the Act in terms of the members of the Trust. Two members of the National Gallery Trustees and the member from the Victorian College of the Arts are omitted and replaced with " a person representing the interests of the arts training industry".
Clause 21 inserts a new section 12A which provides that membership of the trust shall not be an office of profit.
Clause 23 provides for the appointment of a general manager who is to be the Chief Executive Officer with the day to day control and management of the affairs of the Trust.
The Committee makes no further comment.
1.6 ¯ Section 4D(a)(v) - Insufficiently subjects the exercise of legislative power to parliamentary scrutiny
Clause 26 gives the Trust the power to make by-laws with respect to the regulation or prohibition or admission of persons to the Centre and the care, protection and management of the Centre.
The Committee wrote to the Minister regarding some concerns in respect of Section 4D(a)(v) of the Parliamentary Committees Act 1968. The Minister responded by way of letter dated 10 May 1994, which is set out at 1.4.
1.7 ¯ Geelong Performing Arts Centre Trust Act 1980
Part 4 amends the Geelong Performing Arts Centre Trust Act 1980.
The Committee makes no further comment.
1.8 ¯ Film Victoria Act 1981
Part 5 amends the Film Victoria Act 1981.
Clause 42 amends section 5 of the Act by inserting provisions for industry representation including members from the commercial and cultural film and television industries.
Clause 43 provides that a member of the Corporation shall not hold an office of profit.
Clause 44 provides that a Director may be appointed and will be the Chief Executive Officer of the Corporation with the day to day control and management of the affairs of the Corporation.
The Committee makes no further comment.
1.9 ¯ The Museums Act 1983
Part 6 amends the Museums Act 1983.
Clause 48 provides that a member of the Museum Advisory Board may hold office for nine years.
Clause 49 provides that a member of the Board shall not hold an office of profit and Clause 51 provides that a member of the Council shall not hold an office of profit.
The Committee makes no further comment.
1.10 ¯ The State Film Centre of Victoria Council Act 1983
Part 7 amends the State Film Centre of Victoria Council Act 1983.
Clause 54 amends the definition of "documentary film".
Clause 55 amends the objectives of the Council.
Clause 56 broadens the functions of the Council.
Clause 57 sets out the powers of the Council. With the approval of the Minister, the Council may form a company, be a member of a limited company, enter into joint ventures or enter into agreements with corporations in connection with the performance of the functions of the Council. If the Council does form a company, the objects of the company must be incidental to the functions of the Council, the company can only alter its articles when the Council has authorised the resolution. The company must be audited every 12 months if the annual income exceeds $100,000 and must also lodge an annual report to the Treasurer and the A.S.C. The company is at all times subject to the Corporations Law of Victoria and be audited annually by the Auditor-General.
Clause 59 provides for the maximum term of membership of the Council of nine years and Clause 60 provides that a member of the Council shall not hold an office of profit.
The Committee makes no further comment.
1.11 ¯ Section 4D(a)(v) - Insufficiently subjects the exercise of legislative power to parliamentary scrutiny
Clause 61 gives the Council the power to make by-laws not inconsistent with the regulations with respect to admission to the State Film Centre, the copying of films, books and the holding or giving of screenings, exhibitions, displays and lectures at the State Film Centre.
The Committee wrote to the Minister regarding some concerns in respect of Section 4D(a)(v) of the Parliamentary Committees Act 1968. The Minister responded by way of letter dated 10 May 1994 which is set out at 1.4.
1.12 ¯ The Libraries Act 1988
Part 8 amends the Libraries Act 1988.
Clause 66 broadens the functions of the Board and the Council.
Clause 67 provides that the maximum term of office for a member of the Board is nine years.
Clause 68 provides that a member of the Board shall not hold an office of profit.
Clause 70 provides that the Council must meet at least four times per year, rather than eight.
The Committee makes no further comment.
1.13 ¯ The Ministry for the Arts Act 1972
Part 9 amends the Ministry for the Arts Act 1972.
Clause 72 provides that the maximum term of office for a member of the Victorian Council of the Arts is nine years.
Clause 73 provides that a member of the Council shall not hold an office of profit.
The Committee makes no further comment.
1.14 ¯ The Public Records Act 1973
Part 10 amends the Public Records Act 1973.
The Committee notes the comments in the Second Reading Notes that:-
"Amendments are required to the Public Records Act 1973 to update and clarify provisions and to remove anomalies.
The various amendments have been considered and approved by the Public Records Advisory Council. The Council, chaired by Mr. Peter Kirby, has as members, representatives of the various users of the Public Record Office including government departments, historians and genealogists."
Clause 76 amends the definition of "prescribed record" to provide that a prescribed record is a record declared by the Minister pursuant to section 16 to be a prescribed record for the purposes of the Act. It also amends the definition of "public record".
Clause 77 amends membership categories and resignation procedures for the Public Records Advisory Council and provides for a maximum membership period of nine years. Sub-clause (4) provides that the Minister rather than the Governor-in-Council shall determine when an office is vacant, as was previously the case. The Committee notes that the Minister, pursuant to section 4(3) may remove any member of the Council in any event.
Clause 78 provides that a member of the Public Records Advisory Committee shall not hold an office of profit.
Clause 79 inserts a new section 8A into the Act which provides for the mandatory transfer of a public record to the Public Record Office as soon as practicable after 25 years.
Clause 80 amends section 9(1) of the Act. The Committee notes the comments in the Second Reading Notes:-
"Section 9 of the Act relates to records determined to be of such a personal and private nature as to warrant disclosure. To ensure that this provision is administratively manageable, the Government Solicitor has proposed an amendment to enable the responsible Ministers to determine the period of closure of the records at the time of the original decision that they should be closed."
Clause 81 amends section 10 of the Act to allow for a period of not more than 30 years to be specified when records are withheld from public inspection. It also inserts a new section 10A which provides for access to records outside this Act. The Committee notes the comments in the Second Reading Notes:-
"This will overcome problems for agencies such as the Cabinet Office and Registrar of Probates in terms of confidentiality of records transferred to the custody of the Public Record Office. It will also bring the Victorian provisions into line with those applying elsewhere in Australia. Access to documents under Freedom of Information legislation will, of course, still apply."
Clause 83 amends section 16(1) of the Act to allow the Minister to prescribe records on the recommendation of the Keeper of Public Records, rather than the Governor-in-Council as was done previously.
Clause 87 amends the Act to protect Public Record Staff from civil actions for defamation and breach of confidence which might arise from the release of any information or the giving of access where access is permitted by the Act. The Committee notes that this provision was recommended by the Legal and Constitutional Committee in 1989.
The Committee makes no further comment.
