Digital Cinema Network and Screen Australia

[2023] AATA 40

Digital Cinema Network and Screen Australia [2023] AATA 40 (23 January 2023)

Division:GENERAL DIVISION

File Number:          2022/6837

Re:Digital Cinema Network

APPLICANT

AndScreen Australia

RESPONDENT

Decision

Tribunal:Member R West

Date:23 January 2023

Place:Melbourne

The Application is dismissed pursuant to s 42A(4) of the AAT Act.

...........................[SGD].............................................

Member R West

Catchwords

JURISDICTION – Supporting Cinemas Retention, Endurance and Enhancement of Neighbourhoods Fund (SCREEN Fund) – decision of Screen Australia to refuse grants under the SCREEN Fund – jurisdiction – whether decision is reviewable by the Tribunal – no jurisdiction under s 25 AAT Act – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth)
Screen Australia Act 2008 (Cth)

Secondary Materials

Commonwealth Grants Rules and Guidelines 2017

REASONS FOR DECISION

Member R West

23 January 2023

Introduction

1. This matter concerns an application for the review of five separate decisions of the Respondent variously dated 14 July 2021 and 6 April 2022 to refuse grants to the Applicant under the Supporting Cinemas’ Retention, Endurance and Enhancement of Neighbourhoods Fund (SCREEN Fund) in respect of the Applicant’s cinemas in Corowa, Forbes and Hervey Bay (Application).

   background

2. The Applicant is the operator of regional cinemas in Corowa, Forbes and Hervey Bay.

3. The Respondent is a body corporate established by the Screen Australia Act 2008 (SA Act), with statutory functions including to support development of a commercially sustainable Australian screen production industry, to support the provision of access to screen productions (such as films), and to promote the development of screen culture in Australia[1].

   [1] Section 6(1) of the SA Act.

4. The SCREEN Fund was established by the Minister for Communications, Urban Infrastructure, Cities and the Arts in March 2021 to provide financial support to independent cinema operators who had experienced significant declines in revenue due to the COVID-19 pandemic. Screen Australia was charged by the Minister with the administration of the SCREEN Fund. When involved in funding and administering grants programs, Screen Australia is required to have regard to the Commonwealth Grants Rules and Guidelines 2017, issued under s 105C of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). 

5. The SCREEN Fund was not the subject of any specific legislation.

6. In administering the SCREEN Fund, Screen Australia acted pursuant to its general functions and powers as set out in the SA Act. An amount of 20 million dollars was included in Screen Australia’s general budget appropriation for the SCREEN Fund and Screen Australia developed and published eligibility guidelines for the grant of financial assistance from the SCREEN Fund.

7. The Applicant applied to Screen Australia for funding from the SCREEN Fund in relation to its cinemas in Corowa, Forbes and Hervey Bay. Screen Australia determined that the Applicant did not meet the eligibility requirements set out in the published guidelines and refused the applications by separate decisions in July 2021 and April 2022.  The Applicant initially appealed the decisions of Screen Australia to the Victorian Civil and Administrative Tribunal (VCAT) but the application was refused on jurisdictional grounds.  The Applicant then made an application to the Tribunal on 17 August 2022.

8. A hearing by telephone was held by the Tribunal on 28 November 2022.  The Applicant was represented by Mr James Gardiner, a director, and the Respondent was represented by Mr Sebastian Tonkin, a solicitor.  At the outset of the hearing, the Tribunal raised with the parties the question of whether the Tribunal had jurisdiction to hear the Application.  The parties were each provided with an opportunity to lodge written submissions in relation to the jurisdictional question and written submissions were subsequently received from the Respondent on 14 December 2022 and from the Applicant on 22 December 2022.

9. The Tribunal’s jurisdiction to review decisions derives from s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) which provides that an enactment may provide that application may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment or by another enactment having effect under that enactment.  The term enactment is broadly defined in s 3 of the AAT Act to include an Act and instruments made under an Act. The Tribunal has no general jurisdiction to review administrative decisions beyond the jurisdiction conferred by s 25 of the AAT Act.

10. The Applicant conceded in its submissions that it could not identify any enactment which provides for an application to the Tribunal for review of any decision made by Screen Australia regarding the SCREEN Fund.

11. The Respondent contended that there is not any enactment (as broadly defined in s 3 of the AAT Act) providing a right of appeal to the Tribunal regarding the exercise of Screen Australia’s general powers under the SA Act.

12. The Tribunal is satisfied that the SA Act does not provide for applications to be made to the Tribunal for review of decisions of the Respondent in the exercise of its general powers and specifically in relation to the SCREEN Fund. The Tribunal is also satisfied that there is no provision for review of Screen Australia’s decisions under the PGPA Act. Further, there is no relevant enactment identified in the Tribunal’s published list of reviewable decisions.

13. Accordingly, decisions of Screen Australia arising from the exercise of its powers in relation to the SCREEN Fund are not reviewable by the Tribunal and the Tribunal does not have jurisdiction to consider the Application in this case.

14. The Application is therefore dismissed pursuant to s 42A(4) of the AAT Act.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Member R West

..........................[SGD]..............................................

Associate

Dated: 23 January 2023

Date of interlocutory hearing:	28 November 2022
Date final submissions received:	22 December 2022
Applicant:	Self-represented
Advocate for the Respondent:	Sebastian Tonkin
Solicitors for the Respondent:	Simpsons