EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 88
Issued by the Authority of the Minister for the Environment, Heritage and the Arts
National Film and Sound Archive Act 2008
National Film and Sound Archive Regulations 2008
The National Film and Sound Archive Act 2008 (the Act) establishes the NFSA as a body corporate. The Act received Royal Assent on 20 March 2008. Currently the NFSA function is part of the Australian Film Commission. The NFSA will be the Australian Government’s primary agency for collecting, documenting, preserving and providing access to Australia’s screen and sound heritage.
Section 43 of the Act provides that the Governor‑General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.
Section 39 of the Act provides that regulations may prescribe limits on the total amounts of money that may be committed by the NFSA in performing its functions. Such a prescription allows for appropriate controls to be set on overall commitments to particular broad categories of funding.
The purpose of the proposed Regulations is to set $1 million as the prescribed limit above which the NFSA will require the approval of the Minister to:
- acquire any property, right or privilege exceeding in amount or value the prescribed amount;
- dispose of any property, right or privilege exceeding in amount or value the prescribed amount; and
- to enter into a contract for the construction of a building or to pay an amount exceeding the prescribed limit.
Details of the Regulations appear in the Attachment.
The Act does not specify any conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations will commence on the commencement of subsection 5(1) of the Screen Australia Act (SA Act).
Section 2 of the SA Act provides for sections 3 to 45 of that Act to commence on a day to be fixed by Proclamation. It has been proposed that a proclamation be made setting the commencement of those provisions of the SA Act as 1 July 2008. Section 4 of the Acts Interpretation Act 1901 allows the Regulations to be made (but not to commence) before sections 3 to 45 of the Act come into operation.
In the Explanatory Statement the following abbreviations are used:
Act National Film and Sound Archive Act 2008
NFSA National Film and Sound Archive
SA Screen Australia
ATTACHMENT
DETAILS OF THE NATIONAL FILM AND SOUND ARCHIVE REGULATIONS 2008
Part 1 – Introductory
Regulation 1 – Name of Regulations
Regulation 1 provides that the name of the Regulations is the National Film and Sound Archive Regulations 2008.
Regulation 2 – Commencement
Regulation 2 provides that the Regulations commence on the commencement of subsection 5(1) of the Screen Australia Act 2008.
Regulation 3 – Definition
Regulation 3 provides that in the Regulations ‘Act’ means the National Film and Sound Archive Act 2008.
Regulation 4 – Restrictions on financial transactions
Regulation 4 sets the prescribed amount for paragraphs 39(1)(a) to (c) of the Act as $1 million.
The prescribed limit will not apply to the investment of money under section 18 of the Commonwealth Authorities and Companies Act 1997.
The proposed amount of $1 million reflects the current prescribed amount set for similar agencies, such as the Australian Film, Television and Radio School and the Australian Film Commission.
Consultation
A draft of the National Film and Sound Archive Bill 2008 was released for public comment prior to introduction into the Parliament. Consultation was unnecessary for this instrument as it is of a minor nature and is in relation to the internal processes of NFSA only.
Overview
The National Film and Sound Archive Act 2008 was enacted to establish the National Film and Sound Archive (NFSA) as a body corporate, with the primary objective of collecting, documenting, preserving, and providing access to Australia's screen and sound heritage. This Act was introduced to address the need for a dedicated federal agency to manage the nation's audio-visual content, as previously managed by the Australian Film Commission. The Parliament of Australia enacted this Act to provide a structured and permanent framework for the preservation and public access to this important cultural and historical resource. The National Film and Sound Archive Regulations 2008 were made under the authority granted by the Act to provide necessary administrative and financial guidelines for the NFSA's operations, including setting a financial threshold for significant transactions that require ministerial approval.
Scope and Application
The National Film and Sound Archive Act 2008 establishes the National Film and Sound Archive (NFSA) as a body corporate, positioning it as the Australian Government's primary agency responsible for collecting, documenting, preserving, and providing access to Australia's screen and sound heritage. This legislation applies to the NFSA and its functions, which were previously part of the Australian Film Commission, and it outlines the framework within which the NFSA operates. The Act, which received Royal Assent on 20 March 2008, sets out the regulatory and operational parameters for the NFSA, ensuring it effectively carries out its mandate to safeguard and provide access to the nation's audiovisual cultural assets. The Act also provides for the creation of regulations to further detail the operational and financial aspects of the NFSA. The geographic reach of the Act is national, applying across Australia as a Commonwealth Act. However, the Act itself does not specify any exclusions, exemptions, or thresholds apart from those detailed in subordinate instruments, such as the National Film and Sound Archive Regulations 2008. These Regulations, for instance, prescribe a $1 million limit on financial commitments that require Ministerial approval, thus extending and restricting the application of the Act through subordinate instruments.
Key Provisions
The National Film and Sound Archive Regulations 2008 (the Regulations) are a crucial component of the National Film and Sound Archive Act 2008 (the Act), which establishes the NFSA as a body corporate. These Regulations, pursuant to section 43 of the Act, prescribe the matters required or permitted by the Act and are necessary for its effective implementation. Specifically, Regulation 4 sets the prescribed limit for financial transactions at $1 million (Reg. 4). This means that any acquisition of property, rights, or privileges, disposal of such assets, or entering into a contract for construction or payment exceeding this amount will require the approval of the Minister (Reg. 4). This provision ensures that the NFSA has a clear threshold for significant financial commitments, facilitating better financial oversight and accountability.
Under the Act, the NFSA is obligated to adhere to the financial limits set by the Regulations when engaging in transactions that exceed the prescribed amount of $1 million (s. 39(1)(a) to (c) of the Act). This requirement ensures that the NFSA's financial activities are subject to appropriate scrutiny and control. The Regulations also specify that these limits do not apply to investments made under section 18 of the Commonwealth Authorities and Companies Act 1997 (Reg. 4). The NFSA must maintain records and seek necessary approvals for transactions that meet or exceed the $1 million threshold, thereby ensuring compliance with the regulatory framework.
Failure to comply with the financial transaction limits set out in the Regulations may result in civil or criminal consequences. While the Act does not explicitly outline specific penalties for breaches, non-compliance with regulatory requirements can potentially lead to legal repercussions. The NFSA and its officers may face legal action if they proceed with transactions exceeding the prescribed limit without the requisite ministerial approval. The consequences could include financial penalties, legal sanctions, or both, depending on the severity and intent of the breach. It is crucial for the NFSA to adhere to these financial limits to avoid any adverse legal outcomes.