2002-2003

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

AUSTRALIAN FILM COMMISSION AMENDMENT BILL 2003

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for 
the Arts and Sport, 
Senator the Hon. Rod Kemp)

AUSTRALIAN FILM COMMISSION AMENDMENT BILL 2003

OUTLINE

The Australian Film Commission Amendment Bill 2003 (the Bill) amends the Australian Film Commission Act 1975 (the Act) to facilitate the integration of ScreenSound Australia and the Australian Film Commission (the AFC).  The objective of the amendments is:

•	to give relevant functions and powers to the agency to enable it to properly manage, maintain and exhibit the national film and sound collection;

•	to provide the AFC with the power to employ staff under the Public Service Act 1999;  and

•	to make other consequential changes to the administrative structure of the AFC; and

•	to facilitate the transfer of relevant Commonwealth assets to the AFC.

The purpose of the amendments follows a Review of Cultural Agencies within the Communications, Information Technology and the Arts Portfolio (the Review).  The Review considered the potential for synergies from combining parts or whole agencies, taking into account the implications for the Government’s cultural objectives, the need for appropriate governance arrangements and relationships with key stakeholders.  

The Review found that one of the greatest potentials for synergies would be in integrating the AFC and ScreenSound Australia, a current program of the Department of Communications, Information Technology and the Arts.  Such an integration will expand national screen culture activities and enhance co-ordination as well as providing a national focus.  Links to the broader sound, film and television industry will be improved as will educational and exhibition activities.  As a result there is greater potential to provide national leadership in enhancing access to, and understanding of, audiovisual culture.

The proposed amendments will, for the first time, give clear recognition in Commonwealth legislation to the important work of collecting and preserving the nation’s screen and sound heritage.  Specifically, the amendments will articulate a broader cultural role for the AFC by conferring on it express functions and powers in relation to the development, maintenance and exhibition of a collection of screen and sound recordings, supporting documentation such as scripts and artefacts such as film posters.  Such amendments are comparable to corresponding provisions in legislation establishing other Commonwealth collecting institutions such as the National Gallery of Australia and the National Library of Australia.

FINANCIAL IMPACT STATEMENT

The Bill is not expected to have any financial impact on Commonwealth expenditure or revenue.

ABBREVIATIONS

The following abbreviations are used in this explanatory memorandum:

AFC:				Australian Film Commission

Act:	Australian Film Commission Act 1975

Bill:	Australian Film Commission Amendment Bill 2003

CAC Act 			Commonwealth Authorities and Companies Act 1997

NOTES ON CLAUSES

Clause 1 – Short title

Clause 1 provides that the Bill, when enacted, may be cited as the Australian Film Commission Amendment Act 2003.

Clause 2 – Commencement

Clause 2 provides that sections 1 to 3 of the Bill will commence on the day on which the Act receives the Royal Assent.  Clause 2 also provides that Schedule 1 to the Bill will commence on 1 July 2003.

Clause 3 – Schedule(s)

Clause 3 is a standard provision which declares that the Schedules to the Act have the effect indicated. There is one Schedule to the Bill.  Part 1 of Schedule 1 provides for amendments to the Australian Film Commission Act 1975 and Part 2 of Schedule 1 includes transitional provisions associated with the integration of ScreenSound Australia and the AFC.

Schedule 1 – Australian Film Commission Act 1975

Part 1 – Amendments

Item 1 – Subsection 3(1)

This item inserts a definition of “CEO or Chief Executive Officer”.  The current CEO of the AFC is appointed by the AFC pursuant to section 29 of the Act, the general staff employment provision.  The statutory recognition of the office of CEO is required to facilitate the employment of staff pursuant to the Public Service Act 1999. For the purposes of that Act, the CEO is to be the Head of the Statutory Agency which will employ staff under the Act.  The CEO of the AFC will be appointed by the Minister.

Item 2 – Subsection 3(1) 

This item amends the definition of “Deputy Chair”.  Section 19 of the Act currently provides for the appointment of a single Deputy Chair to the AFC.  Therefore, the current definition of Deputy Chair at subsection 3(a) of the Act refers to “the” Deputy Chair.  The proposed amendment is consequential to a proposed amendment to section 19 of the Act which will enable a maximum of 2 Deputy Chairs to be appointed.  This proposed amendment will allow flexibility of representation on the AFC.  This will be particularly important in the early years of the combined organisation.

Item 3 – Subsection 3(1)

This item inserts a definition of “First Deputy Chair”.  As outlined at item 2, it is proposed to amend the Act to allow for the appointment of a maximum of 2 Deputy Chairs to the AFC.  As a consequence of that proposed amendment it will be necessary to distinguish between the Deputy Chairs for the purposes of deputising for the Chair.  Section 20 of the Act currently provides for the Deputy Chair to act in the place of the Chair when he or she is absent from duty or from Australia or for any other reason is unable to perform the duties of his or her office.  Section 28 of the Act currently provides for the Deputy Chair to preside at meetings of the AFC in the place of the Chair when he or she is absent from duty or from Australia or for any other reason is absent from a meeting.

Item 4 – Subsection 3(1)

This item inserts a definition of "national collection". ScreenSound Australia holds a collection of items in a wide range of audiovisual formats and associated materials relating to Australia's screen and sound heritage. This includes films, television programs, audio and video recordings in all formats; materials in new and emerging audiovisual formats; broadcast materials and oral histories. In addition the support materials collected may include scripts, stills, posters, costumes, publicity material, vintage equipment and the manuscript records of notable screen and sound identities etc. 

Item 5 – Subsection 3(1)

This item inserts a definition of “Second Deputy Chair”.  As outlined at item 2 the Act it is proposed to amend the Act to allow for the appointment of a maximum of 2 Deputy Chairs to the AFC.  The consequences of that proposed amendment were set out at item 3.  

Item 6 – at the end of paragraph 5(1)(a)

This item inserts the word “and” at the end of the functions listed in paragraph 5(1)(a) to be consistent in style with the additional functions inserted by item 8.  

Item 7 – at the end of paragraph 5(1)(b)

This item inserts the word “and” as for item 6.  

Item 8– at the end of paragraph 5(1)

This item inserts additional functions for the AFC in relation to the “national collection”.

The current functions of the AFC as provided by section 5 of the Act focus on the making, promotion, distribution and broadcasting of Australian programs, the promotion and distribution of programs and the proper keeping of recordings in archives in Australia.  

Section 3 of the Act defines “program” as a recording or an aggregate of images or sounds, or of images and sound, that is, or is intended to be, broadcast without first being recorded.  “Recording” is defined as meaning a film or an aggregate of sounds embodied in any material.  

An “Australian program” is defined as “a program:
(a)	that has been made, wholly or substantially in Australia and that, in the opinion of the AFC, has a significant Australian content;
(b)	that is to be made wholly or substantially in Australia and that, in the opinion of the AFC, will have a significant Australian content; or
(c)	that has been, or is to be, made in pursuance of an agreement or arrangement entered into between the Government of another country or an authority of the Government of another country.

The Act as currently drafted would allow the AFC to acquire and thereafter maintain the national collection for the purpose of its existing functions.  However, the proposed amendments would provide expressly for additional functions that reflect a broader cultural role than that presently reflected in the Act.

Accordingly, item 8 is to amend subsection 5(1) of the Act to confer on the AFC the following functions:

•	to develop, maintain and preserve the national collection;
•	to exhibit, or make available for exhibition by others, items in the national collection;  and
•	to make items available to persons and institutions.

Item 9 – at the end of subsection 5(1A)

This item inserts an additional obligation on the AFC in relation to using the national collection in the national interest.  Most of the major Australian collecting institutions, for example, the National Museum of Australia and the National Gallery of Australia, have a corresponding statutory obligation.

The AFC is the Commonwealth’s primary agency for supporting film, television and interactive media production and distribution and their creators.  Therefore, it is important to ensure that in acquiring the national collection AFC will have the appropriate obligation to the nation for the national collection.  Accordingly, it is proposed to amend the Act to provide that the AFC use every endeavour to make the most advantageous use of the national collection in the national interest.

Item 10 – at the end of subsection 6(1)

This item inserts additional powers for the AFC in relation to the “national collection”, and other programs and material associated with such programs generally.

Apart from the more general powers to accept gifts, bequests and assignments and the ability to act as a trustee, the current powers of the AFC, as provided by section 6 of the Act, focus on acquiring property and rights and providing financial assistance in relation to Australian programs.  In order to give clear recognition to the work of collecting and giving access to the nation’s audiovisual heritage, additional powers for the AFC are therefore required.  

As a collecting institution, the AFC will need to be able to purchase, hire or take on loan or deposit programs.  To ensure an appropriate level of public access beyond mere exhibition, the AFC should also be able to make programs available by hire, loan, sale or otherwise.  In addition, because of its expertise, ScreenSound Australia currently provides some services (for instance specialised preservation work) to the public on a fee for service basis.  Therefore, the AFC will need to have the power to also provide such services.  Proposed subsection 6(1B) inserts such a provision.  However, the AFC must have the prior approval of the Minister to charge fees.

Item 11 - at the end of section 6 

Section 9 of the Commonwealth Authorities and Companies Act 1997 (the CAC Act) places an obligation on the directors of Commonwealth authorities and companies to prepare an Annual Report.  The AFC is a Commonwealth authority pursuant to that Act. 

In addition to the standard criteria for annual reports provided under the CAC Act, it is proposed to amend the Act so as to oblige the AFC to report on significant disposals of items in the national collection during the relevant financial year. 

Item 12 –subsection 14(1) 

This item amends subsection 14(1) to enable the AFC to delegate any of its powers to the CEO.  Subsection 14(1) currently permits delegations to AFC staff.  Under current arrangements such delegations extend to the current CEO of the AFC as a member of staff.  

However, because of proposed amendments to the Act to make the AFC a Statutory Agency which will employ staff under the Public Service Act 1999, the office of CEO will become a separate statutory appointment.  Therefore, section 14 must be amended so that the AFC may delegate its powers to the holder of the new statutory office of CEO.

Item 13 – Subsection 19(1)

This item amends subsection 19(1) of the Act in relation to the proposal to provide for 2 Deputy Chairs as outlined at item 2 above.  Subsection 19(1) currently refers to “the” Deputy Chair.  As a result of the proposed amendment to provide for 2 Deputy Chairs, there may no longer be just one Deputy Chair and hence the terminology “the” Deputy Chair would no longer be correct.  Therefore, it is proposed to amend subsection 19(1) the Act to delete that reference and insert a reference to “a” Deputy Chair.

Item 14– at the end of subsection 19(1)

This item amends section 19 of the Act in relation to the proposal to provide for 2 Deputy Chairs as outlined at items 2 and 13 above.  As a consequence of that proposed amendment it will be necessary to distinguish between the Deputy Chairs for the purposes of deputising for the Chair as explained at items 3 and 5 above. 

It is proposed that the Governor General may appoint a maximum of 2 Deputy Chairs to the AFC.  It is proposed to insert subsection 19(1A) accordingly.

It is therefore also proposed to insert subsections 19(1B) to 19(1E).  Proposed subsection 19(1B) describes which subsections set out the rules for seniority for Deputy Chairs.  Proposed subsection 19(1C) will provide for the situation where there is only one Deputy Chair who will be the First Deputy Chair as defined in proposed new definition in subsection 3(1).  It is intended that, if there are 2 Deputy Chairs for a particular time, the longest serving Deputy Chair should be the First Deputy Chair who would then act in the position of Chair when required.  

In assessing who is the longest serving Deputy Chair it is intended that previous consecutive terms as a Deputy Chair would be counted.  In other words, where a Deputy Chair has been re-appointed as Deputy Chair on one or more occasions the date of the first appointment decides the issue.  For example,  if a Deputy Chair was appointed for the term 1 January 2004 to 30 December 2006 and then re-appointed for a further term from 1 January 2007 to 30 December 2009, that Deputy Chair would have seniority over a Deputy Chair who was first appointed for a term from 1 January 2007 to 30 December 2009.  The Deputy Chair with the seniority would be the First Deputy Chair and the Deputy Chair who was first appointed from 1 January 2007 would be the second Deputy Chair.  Proposed paragraphs 19(1D)(a) and (b) will be inserted accordingly.

In addition, it is proposed to give the Minister the power to nominate which person is to be the First Deputy Chair.  It will be necessary to do this where two Deputy Chairs are appointed at the same time.  Once the Minister has so nominated, the other Deputy Chair is deemed to be the Second Deputy Chair. Proposed paragraph 19(1E) will be inserted accordingly.

Item 15 – Subsection 19(2)

This item amends subsection 19(2) of the Act in relation to the proposal to provide for 2 Deputy Chairs as outlined at item 2 above.  Subsection 19(2) currently refers to “Deputy Chair” meaning the sole Deputy Chair pursuant to the current Act.  As a result of the proposed amendment to provide for 2 Deputy Chairs, there may no longer be just one Deputy Chair and hence the terminology “Deputy Chair” would no longer be correct.  Therefore, it is proposed to amend subsection 19(2) the Act to delete that reference and insert a reference to “a Deputy Chair”.

Item 16 – Subsection 19(3)

This item repeals subsection 19(3) of the Act and inserts a new subsection consistent with the proposal to provide for 2 Deputy Chairs as outlined at item 2 above.  Subsection 19(3) currently provides that the member of the AFC who is Deputy Chair is eligible for re-appointment as Deputy Chair upon ceasing to be Deputy Chair in certain circumstances. 

As a result of the proposed amendment to provide for 2 Deputy Chairs, the subsection would need consequential amendment.  It is intended that the new subsection would be in exactly the same terms as the existing subsection with the exception of reference to “a” Deputy Chair rather than “the” Deputy Chair.

Item 17 – Subsection 19(4)

This item amends subsection 19(4) of the Act in relation to the proposal to provide for 2 Deputy Chairs as outlined at item 2 above.  The proposed amendment is in the same terms as the amendment at item 13. 

Item 18 – Paragraph (20)(3)(a)

This item amends paragraph 20(3)(a) of the Act in relation to the proposal to provide for 2 Deputy Chairs as outlined at items 2,3 and 14 and above.  Section 20 deals with acting arrangements for the position of Chair of the AFC.  Paragraph 20(3)(a) currently provides that “the Deputy Chair shall act”.  As a result of the proposed amendment to provide for 2 Deputy Chairs, the reference should be to the “First Deputy Chair”.  Therefore, it is proposed to amend paragraph 20(3)(a) of the Act to delete reference to Deputy Chair and insert a provision that the First Deputy Chair must act.

Item 19 – Paragraph (20)(3)(b)

This item repeals paragraph 20(3)(b) of the Act and inserts new paragraphs consistent with the provision to provide for 2 Deputy Chairs as outlined at items 2, 3, 14 and 18 above.  Paragraph 20(3)(b) currently provides for acting arrangements for the Chair if there is no Deputy Chair or the Deputy Chair is not available to act.  In such a case, the Minister may appoint a member to act in the place of the Chair.

It is proposed to repeal paragraph 20(3)(b) of the Act.  Two proposed new paragraphs will be substituted.  The first proposed paragraph will provide that if, due to absence or inability, the First Deputy Chair is not available to act the Second Deputy Chair must act in place of the Chair.  The second proposed paragraph 20(3)(c) will be inserted to provide for the instance where there is no Deputy Chair or no Deputy is available to act in the place of the Chair.  In that circumstance it is proposed that the Minister may appoint a member to act.  This proposed paragraph is in exactly the same terms as paragraph (20)(3)(b) of the current Act.

Item 20 – Section 26

This item repeals subsection 26(3).  Subsection 26(3) was a provision inserted in to the Act by amendment in 1976 and deals with superannuation under the Superannuation Act 1976.  The provision made in the subsection is no longer appropriate given current arrangements for superannuation.

Item 21 – Subsection 28(5)

This item amends subsection 28(5) of the Act in relation to the proposal to provide for 2 Deputy Chairs as outlined at item 2 above.  The proposed amendment is to similar effect as the amendment at items 14 and 18 providing that the most senior Deputy Chair present is to act in the place of the Chair at meetings of the AFC. 

Item 22 – Subsection 28(6)

This item amends subsection 28(6) of the Act in relation to the proposal to provide for 2 Deputy Chairs as outlined at item 2 above.  The proposed amendment is in similar terms as the amendment at item 13 as it provides for the deletion of the words “and the Deputy Chair” and substitution with the words “the First Deputy Chair of the Commission and the Second Deputy Chair of the Commission”. 

Item 23 – before section 29, Division 1, sections 28A, 28B, 28C, 28D, 28E, 28F, 28G, 28H, 28J, 28K

This item inserts several new sections in relation to the CEO, their appointment, terms and conditions of appointment, remuneration, termination and resignation and acting arrangements should the CEO be absent.  These new sections are necessary here because of proposed amendments to the Act to enable the AFC to employ staff pursuant to the Public Service Act 1999 and the consequential need for the statutory appointment of a CEO as discussed in item 1.  The new sections are of the kind currently used in similar Commonwealth legislation for a statutory appointment of this kind.

The proposed new section 28A provides that the CEO will be responsible for the management of the affairs of the AFC.  The AFC may give written directions to the CEO with the exception of matters pursuant to the CEO’s powers under the Public Service Act 1999.  The CEO is to act in accordance with such directions. 

The proposed new section 28B provides that the CEO will be appointed by the Minister by instrument.  The appointment will be on a full-time basis and for a term not exceeding 5 years.  The CEO will be eligible for re-appointment.

The proposed new section 28C provides that the CEO will be paid the remuneration determined by the Remuneration Tribunal.  If no such determination is made, the remuneration for the CEO may be prescribed by the regulations.

The proposed new section 28D provides that the Remuneration Tribunal will determine the CEO’s recreation leave entitlements. Should the CEO require other leave, this may be granted by the Minister who would also determine the remuneration, terms and other conditions for such leave.  In addition, other leave, for a period of less than 5 working days, may be granted by the Chair of the AFC who would also determine the remuneration, terms and other conditions for such leave. 

The proposed new section 28E provides that the CEO may resign by written notice to the Minister.

The proposed new section 28F provides that the CEO must provide the Minister with notice of any interests, pecuniary or otherwise, that could conflict with the proper performance of his or her duties.

The proposed new section 28G provides that the CEO must not engage in paid employment outside the duties of CEO without the Minister’s approval.

The proposed new section 28H sets out the criteria for termination of the appointment of the CEO.  Subsection 28H(1) is discretionary and provides that the Minister may terminate the appointment for misbehaviour or physical or mental incapacity.  Subsection 28H(2) is mandatory and requires the Minister to terminate the appointment if the CEO becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, makes an assignment of his or her remuneration for the benefit of his or her creditors, or if the CEO is absent for 14 consecutive days or 28 days in any 12 months (unless on leave of absence approved by the Chair of the AFC or the Minister), fails without reasonable excuse to comply with proposed section 28F in relation to disclosure of interests or engages in paid employment outside the duties of CEO without the Minister’s approval.

Proposed subsections 28H(3) and (4) provide that the CEO cannot be retired from office for invalidity where he or she is a member of a superannuation scheme under the Superannuation Act 1976 or Superannuation Act 1990 unless the relevant Superannuation Board of Trustees gives the necessary certificates.

Proposed section 28J provides that the Minister may determine in writing other terms and conditions for the office of CEO not already covered by the Act.

Proposed section 28K makes provision for an acting CEO in the event that the CEO is absent or the position is vacant.

Item 24 –at the end of section 29, Division 2

This item adds proposed additional subsections 29(3) and (4) at the end of section 29 of the Act.  Proposed subsection 29(3) provides for the employment of staff pursuant to the Public Service Act 1999 as explained at item 1 above.  Subsection 29(4) provides for the consequential amendments required in relation to that Act as also explained at items 1 and 23 above.  

This provides a mechanism whereby the relevant staff who currently are employed by the Department of Communications, Information Technology and the Arts, in the program known as ScreenSound Australia, are able to be transferred to the AFC by instrument pursuant to paragraph 72(1)(a) of the Public Service Act 1999 with effect from 1 July 2003.

Item 25 – Part 2 Transitional Provisions

This item adds the definitions required for the transitional provisions relating to the integration of ScreenSound Australia and the AFC.

 “commencement day” is defined to mean the day on which the Schedule to the Australian Film Commission Amendment Act 2003 commences.  “Commonwealth program” is defined to mean an administrative program conducted by or on behalf of the Commonwealth.  

“ScreenSound Australia” means the Commonwealth program administered by the Commonwealth Department of Communications, Information Technology and the Arts immediately before the commencement day that was generally known as “ScreenSound Australia - The National Screen and Sound Archive”. 

Item 26 – Appointment of CEO

The AFC is currently managed by the person who occupies the non-statutory position known as the Chief Executive Officer.  As explained at item 1, that person is a member of staff engaged by the AFC pursuant to section 29 of the Act.  It is proposed that the person currently occupying that non-statutory position will be taken to have been appointed under the Act as amended as the new statutory CEO with effect from 1 July 2003 until 31 December 2005 (the end of his current term of employment).  This appointment will be subject to the Act as amended by this Bill in the same manner as any future appointments.  

Item 27 – Transfer of assets from the Commonwealth to the AFC

In order to integrate the AFC and the functions of ScreenSound Australia, the Commonwealth must transfer of a large number of assets, liabilities, contractual rights and obligations.

The individual transfer of each asset, liability and contractual right or obligation would be a very time consuming and costly process.  Therefore, to facilitate these transfers, it is proposed to provide in the transitional provisions a procedure for transfer by the Minister by written declaration.

This proposed transitional provision sets out the procedure for transferring assets.  It will provide that the Minister may make declarations in writing in relation to assets of the Commonwealth relating to ScreenSound Australia.  Assets are defined to include rights in relation to intellectual property.  Therefore, this provision may be used to transfer any intellectual property rights held by the Commonwealth in relation to ScreenSound Australia.  This may include copyright owned by the Commonwealth and any licences dealing with intellectual property rights to which the Commonwealth is a party in relation to ScreenSound Australia.

This item then provides that the Minister can make the following declarations in respect of assets:
(a)	vesting the assets in the AFC without conveyance, transfer or assignment;
(b)	that a specified instrument relating to an asset continues to have effect after the transfer as if reference in the instrument to the Commonwealth is a reference to the AFC;
(c)	that the AFC becomes the Commonwealth’s successor in law immediately following the transfer.

Each declaration is to be published in the Gazette.  This provision will assist interested parties by providing notice of the transfers.

Item 28 – Transfer of liabilities from the Commonwealth to the AFC

This proposed transitional provision sets out the procedure for transferring liabilities. It provides that the Minister may make declarations in writing in relation to liabilities of the Commonwealth relating to ScreenSound Australia.  These can be any of the following:
(a)	vesting the liabilities in the AFC without conveyance, transfer or assignment;
(b)	that a specified instrument relating to a liability continues to have effect after the transfer as if reference in the instrument to the Commonwealth is a reference to the AFC;
(c)	that the AFC becomes the Commonwealth’s successor in law immediately following the transfer.

Each declaration is to be published in the Gazette.  This provision will assist interested parties by providing notice of the transfers.

Item 29 – Transfer of contractual rights and obligations from the Commonwealth to the AFC

This proposed transitional provision sets out the procedure for transferring contractual rights and obligations. The Minister may make declarations in writing in relation to contractual rights and obligations of the Commonwealth relating to ScreenSound Australia other than contracts of employment.  As noted above, persons employed in connection with ScreenSound Australia are employed under the Public Service Act 1999 and will be transferred as APS employees under paragraph 72(1)(a) of that Act. 

The proposed subitem (2) provides that the Minister can make the following declarations in respect of contractual rights and obligations:
(a)	vesting the liabilities in the AFC without conveyance, transfer or assignment;
(b)	that a specified instrument relating to a liability continues to have effect after the transfer as if reference in the instrument to the Commonwealth is a reference to the AFC;
(c)	that the AFC becomes the Commonwealth’s successor in law immediately following the transfer.

The Minister may also declare that, once rights and obligations of a contract are transferred to the AFC from the Commonwealth, a specified instrument relating to such contracts will continue to have effect as if a reference to the Commonwealth was a reference to the AFC.

The Minister may also declare that the AFC becomes the Commonwealth’s successor in law to any rights and obligations transferred pursuant to this proposed provision.

Each declaration to be published in the Gazette.  This provision will assist interested parties by providing notice of the transfers.

Item 30 – Arrangement or transfer under items 27, 28 and 29 valid

This proposed transitional provision is for clarification in the event that the transfer of any asset, liability or contractual rights or obligations could be construed to fall in to more than one of those categories.  In that event, if the asset, liability or right and obligation is transferred pursuant to one of items 27, 28 or 29 then that transfer will be valid despite the fact that the asset, liability or right and obligation could have been transferred pursuant to another of the items.

Item 31 – Exemption from stamp duty etc.

This proposed transitional provision deals with stamp duty in relation to any transfer or arrangement that might occur pursuant to the matter in items 27, 28 or 29 above or in any way in connection with them.  It is intended that no stamp duty or any other tax under a law of a State or Territory will become payable.

Proposed subitem (1) provides that no stamp duty or other tax is payable in respect of an exempt matter or anything connected with such a matter. Proposed subitem (2) provides that the Minister may certify certain specified matters to be exempt matters for the purpose of these provisions. Proposed subitem (3) provides the Minister certificate is evidence of the matter stated in the certificate. Proposed subitem (4) defines an exempt matter to mean a transfer or an arrangement under items 27, 28 or 29.

Item 32 – Transfer of records

This proposed transitional provision deals with the transfer of records to the AFC from the Department of Communications, Information Technology and the Arts. Proposed subitem (1) provides that the Secretary of the Department may transfer such records to the AFC. Proposed subitem (2) provides that Commonwealth records can only be transferred pursuant to the Archives Act 1983. Commonwealth record and record have the same meaning in the Archives Act 1983.